UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY Mills THE LAW OF WORKMEN'S COMPENSATION Rules of Procedure, Tables, Forms, Synopses of Acts. BY WILLIAM R. SCHNEIDER, B. S., LL. B., i of The 8t. Louis Bar. AUTHOR Missouri Workmen's Compensation Act, of 1919. VOLUME I. THOMAS LAW BOOK COMPANY ST. Louis, MISSOIKI. 1922. T Copyright 1922 BY WILLIAM R. SCHNEIDER, TO MY PARENTS FREDERICK AND AUGUSTA SCHNEIDER. 7760.11 PREFACE. In the early part of 1917 three general legal works on the subject of Workmen's Compensation were published. Since then thirteen additional states have enacted compensation acts and the appellate court decisions on the subject have quadrupled. The writer has been impelled to this' work : First: By reason of the important modifications of the gen- eral principles that have been evolved by the numerous de- cisions and new legislative enactments on this subject in the past five years. Twenty seven states having amended their respec- tive compensation acts in 1921 alone. Second: Because in this day "a case in point" usually takes precedence over the text writers' theories and deductions. Third : Because the original reports are becoming so numer- ous that it is impossible for the practitioner to have more than a small fractional part of them at hand. Hence this effort to supply to the practitioner, in the most convenient and comparatively inexpensive form, these three needs in so far as they relate to Workmen's Compensation Law. This has been attempted by mentioning throughout the work and in the synopses of the acts, included in the appendix, the amendments to the acts themselves, as well as the modifications of general principles that have been evolved by the decisions. In hun- dreds of cases those terse paragraphs from the opinions have been quoted which set out the gist of the facts and the law of the case, and in a few cases syllabii prepared by the court have been quoted. It is hoped that these numerous quotations, together with the additional supporting citations and general subject matter, will prove a desirable substitute for the original report, and at the same time cover the particular point so comprehensively that the practitioner will be able to prepare his case with thor- oughness. VII PREFACE. In view of the varying phraseology of the provisions of so many acts covering certain phases of the subject, this work must necessarily, in places, assume the nature of a digest of de- cisions. A careful effort has been made to cite every American appel- late 'court case on the subject in support of every point decided in the case. In addition many board and commission decisions and British and Canadian decisions have been cited and dis- cussed. The writer takes th:s opportunity to acknowledge his appre- ciation of the assistance rendered in the preparation of this work by the following: C. C. Hine's Sons Company of 21 Platt Street, New York, publishers of the Workmen's Compensation Law Journal, which contains all current appellate court compensation cases, and is cited in this work as W. C. L. J. ; Mr. Henry J. McMahon, a most thorough student of the subject of Workmen's Compen- sation; Mr. C. P. Berry, author of Berry on Automobiles, and contributor of articles on Workmen's Compensation to various legal journals; Mr. Clyde G-ary and Mr. Charles Wright, all oi the St. Louis Bar, and Mr. F. Robertson Jones of New York City. WM. R. SCHNEIDER. vm TABLE OF CONTENTS CHAPTER I. REASONS FOR, HISTOBY OF, AN OBJECTIONS TO, WORKMEN'S COMPENSATION LAWS. Sec. 1. Reasons Underlying Workmen's Compensation Legislation. 2. History of Workmen's Compensation Legislation. 3. Objection of Opponents of Compensation Laws. CHAPTER II. ELECTION, REJECTION, AND CONSTITUTIONALITY OF ACTS. 4. Elective and Compulsory Acts, Constitutionality. 5. Constitutionality of Miscellaneous Provisions. 6. Presumption of and Notice of Election and Rejection. 7. Requirements as to Notice of Election. 8. Proof of Election. 9. Effect, Contractual Nature of Election and Duress. 10. Election, When Exempted By Having Less Than Stated Numbers of Employees. 11. Election By Farmers, Employers of Domestic Servants, Casual Employees And Outworkers. 12. Election as To Part Only Of Employees. 13. Election To Reject And Abolition Of Common Law Defenses. 14. Election By Minors and Minors Generally. 15. Election To Reject And Action For Damages. CHAPTER III. WHO COMES UNDER TUB ACT. 16. General. 17. Every Person, Corporation, Association, etc., As Employers. 18. Every Person, Corporation, Association, etc., As Employers (Cont'd) 19. Employees Generally. 20. Who Are Employees. 21. Who Are Employees (Cont'd). 22. Employment Through Agents And Assistants. IX TABLE OF CONTENTS. CHAPTER HI. Con. Sec. 23. Employee Doing Incidental Work. 24. Loaned Employees. 25. Partnership As Employer. 26. Employers of Teamsters. 27. Employer Of Less Than Stated Number Of Employees. 28. Regularly Employed And Usual Business Of Employer. 29. Casual Employments And Regularly Employed In Unusual Business Of Employer. 30. Employments Not Casual. 31. Farm Labor. 32. Employments Held Not To Be Farm Labor. 33. Domestic Servants. 2.4. Persons Whose Average Annual Earnings Exceed A Stated Amount, Excluded. 35. Officials Of Political Subdivisions. 36. Employees Of The State And Its Political Subdivisions. 37. Independent Contractors. 38. Workmen Held Independent Contractors Not Employees. 39. Workmen Held Employees And Not Independent Contractors. 40. Owner of Premises As Employer Of The Employees Of His Con- tractors And Subcontractors. 41. On, Or About the Premises. 42. Liability of Owner Or Lessor To Employees Of Lessee. 43. Dual Employers, Employments, And Business Enterprises. 44. Subrogation And Third Persons As Affected By The Acts. 45. Subrogation And Third Persons As Affected By The Acts, (Cont'd) 46. Cases Exclusively Covered By Federal Law. 47. Extra-Territorial Application Of Acts. CHAPTER IV. HAZARDOUS EMPLOYMENT. 48. General Consideration. 49. Incidental Work In Hazardous Employment. 50. Diversified Employment. 51. Away From Plant. 52. Altering. 53. Appliances. 54. Bottling. 55. Brick Making. 56. Building Construction, Repair, etc. 57. Butcher Shop. 58. Cannery. x TABLE OP CONTENTS. CHAPTER IV. Con. Sec. 59. Carpenter Shop. 60. Carriers Carriages. 61. Hauling Incidental To Employers Business. 62. Loading And Unloading. 63. Charitable Institution. 64. Chauffeur Repairing Family Car. 65. Coal Business. 66. Collector. 67. Commission Business. 68. Construction. 69. Dairy. 70. Decorating. 71. Dredging. 72. Driver. 73. Drug Store. 74. Elevators. 75. Engineering Lifting Radiator. 76. Engineering Work. 77. Engineering Works. 78. Ensilage Cutter. 79. Enterprise. 80. Erection. 81. Excavating. 82. Explosives, Etc. 83. Factory. 84. Farming. 85. Florists. 86. Garbage Disposal Plant. 87. Garbage Removal. 88. Groceries, Wholesale. 89. Heating. 90. Hoisting Apparatus Hand Elevator. 91. Hospital. 92. Hotel. 93. Ice Harvesting. 94. Installation Of Water Tank. 95. Junk Business. 96. Logging. 97. Longshore. 98. Maintain. 99. Manhole Construction. 100. Manufacture. 101. Mason Or Concrete Work. 102. Meal Market. XI TABLE OF CONTENTS. CHAPTER IV. Con. Sec. 103 Miner. 104. Moving Picture. (See Manufacture). 105. Mining Quarrying. 106. Night Watchman. 107. Oil & Gas Wells. 108. On, In or About. 109. Same Plant Factory. 110. Operation Engines. 111. Pile Driving. 112. Plastering. W.3. Pleasure Club. 114. Power Machinery. 115. Private Railroad. 116. Process Server. 117. Road Building. 118. Salesman. 119. Sewer Construction. 120. Slaughter And Packing House. 121. Smoke Stack Wrecking. 122. Stable. 123. Storage. 124. Street Railway. 125. Structure. 126. Subway. 127. Threshing Machine. 128. Undertaking. 129. Upholstering Carpet Laying. 130. Vehicles. 131. Vessels Unloading. 132. Warehouse. 133.. Window Cleaning. 134. Determination Of Question. CHAPTER V. PERSONAL INJURY OR DEATH BY ACCIDENT. 135. Definitions. 136. Abscess. 137. Actinomycosis. 138. Aggravation of Pre-Existing Condition. 139. Aneurism. 140. Anthrax. XII TABLE OP CONTENTS. CHAPTER V. Con. Sec. 141. Appendicitis. 142. Apoplexy. 143,. Artery Rupture. 144. Arterio-Sclerosis. 145. Artificial Limb Broken. 146. Artificial Teeth Broken. 147. Artificial Eye Broken. 148. Asphyxiation. 149. Assaults. 150. Asthma. 151. Bends. 152. Blood Poison. 153. Blood Vessel Rupture. 154. Boils. 155. Brass Poisoning. 156. Brights Disease. 157. Bronchitis. 158. Burns. 159. Cancer. 160. Carbuncle. 161. Cellulitis. 162. Cerebral Abscess. 163. Cerebral Hemorrhage. 164. Cerebral Oedma. 165. Colds. 166. Concussion Of Brain. 167. Death, Presumption From, While At Work. 168. Delirious. 169. Delirium Tremens. 170. Dementia Praecox. 171. Dermatitis. 172. Diabetes. 173. Disease Following Injury. 174. Dislocation. 175. Dizziness. 176. Dog Bite. 177. Drinking Acid Or Poison By Mistake. 178. Drowning. 179. Dust. 180. Dysentery. 181. Eczema. 182. Embolism. 183. Epilepsy. 184. Erysipelas. XIII TABLE OF CONTENTS. CHAPTER V. Con. Sec. 185. Eyesight. 186. Eye Injuries. 187. Facial Paralysis. 188. Falls From Vertigo Or Other Like Causes. 189. Felon. 190. Flat Foot From Traumatism. 191. Floating Kidney. 192. Frost Bites And Freezing. 193. Friction Injuries. 194. Gangrene From Wound. 195. Gastric Ulcer. 196. Headaches From Eye Injury And Other Causes. 197. Heart Disease. a. Cases in which Compensation was awarded. b. Cases in which Compensation was denied. 198. Hemorrhage. 199. Hemorrhoids. 200. Hernia. 201. Housemaid's Knee. 202. Hydrocele. 203. Hydronephrosis Of Kidney. 204. Hysterical Blindness. 205. Hysterical Paralysis. 206. Infection. 207. Influenza. 208. Inhalation Of Noxious Gases. 209. Ink Poisoning. 210. Insanity. 211. Insect Bite. 212. Ivy Poisoning. 213. Lead Poisoning. 214. Lightning. 215. Lumbago. 216. Malarial Fever. 217. Meningitis. 218. Mental Shock Or Fright And Nervous Trouble. 219. Mitral Regurgitation. 220. Myocarditis. 221. Myositis. 222. Nephritis. 223. Occupational Disease. 224. Osteomyelitis. 225. Osteosarcoma From Fall. 226. Over Work. XIV TABLE OP CONTENTS. CHAPTER V. Con. Sec. 227. Palmer Abscess. 228. Paralysis. 229. Periartbritls. 230. Peritonitis. 231. Pleurisy. 232. Pneumonia. 233. Proof Of Accident. 234. Proximate Cause. 235. Quarantine. 236. Rash. 237. Recurrence of Condition Due To Former Injury. 238. Rhuematism. 239. St. Vitus Dance. 240. Sarcoma. 241. Scarlet Fever. 242. Sciatica. 243. Septicaemia. 244. Skin Affections. 245. Sleep. 246. Source of Necessary Fact. 247. Sprains And Strains. 248. Suicide. 249. Sun Stroke And Heat Stroke. 250. Sympathetic Affection Of One Eye By Injury To The Other. 251. Testicles; Injuries To: 252. Tetanus. 253. Trachoma. 254. Tuberculosis. 255. Tumor. 256. Typhoid Fever. 257. Ulcers. 258. Vaccination. 259. Varicoae Veins. 260. Vertigo. 261. Wood Alcohol .Poisoning. CHAPTER VI. ACCIDENTS ARISING OUT OF AND m THE COURSE OF TUB EMPLOYMENT. 262. Arising Out of and in the Course of In General. XV TABLE OF CONTENTS. CHAPTER VI. Con. ACCIDENTS SUSTAINED IN GOING TO AND RBOM PLACE OF EMPLOYMENT. Sec. 263. Going To Work In Own Conveyance. 264. Going From Work In Own Conveyance. 265. Going To And From Work In Conveyances Furnished By Employer. 266. While Walking To And From Work. 267. Going To And From Work Using Conveyances Of Third Parties. 268. Going To And From Work, On Premises Of Employer And While Passing Over Ways Of Egress And Ingress. 269. Going To And From Work Where Employment Is Not Limited To Fixed Hours. 270. Seamen And Others Employed On Vessels Injured When Getting On And Off Vessels. 271. Away From Place Of Employment On Business Of Employer. 272. Street Accidents. NON WORKING TIME INJURIES. 273. Miscellaneous Accidents Before And After Work Hours. 274. During Temporary Cessation Of Work At The Direction Of Employer And For Own Purposes. 275. Going To Report To Employer. 276. Lunch Hour Injuries, On The Premises And Going To Place Off Premises For Luncheon. 277. Going To Receive Pay. 278. Going To Answer A Call Of Nature. 279. Injuries Sustained After Work Hours, By Employees Furnished Lodgings On The Premises And To Employee Visiting The Premises On Sundays For Purposes Not Connected With The Employment. 280. Away From Place Of Employment On Own Business Or Business Other Than Employer's. 281. Accidents Under Contract But Before Beginning Work, Before Actual Hiring. And After Discharge. EMPLOYEE'S OB ANOTHER'S WILFUL MISCONDUCT. 282. In General. 283. Acts. Not Constituting Wilful Misconduct. 284. Acts Constituting Wilful Misconduct. 285. Sportive Acts. 286. Added Risk To Peril. 287. Employer's Wilful Misconduct. 288. Injury Sustained While Performing Acts For Personal Con- veniences or Pleasure Of The Etaployee. 289. Miscellaneous Accidents Occurring Within "War , Zone" And In Munition Works Together With Questions Pertaining To Em- ployees In Military Service, As Affected By Compensation Acts. XVI TABLE OP CONTENTS. CHAPTER VI. Con. "AUORAVATTON" CASES AS AFFECTED BY THE DOCTRINE OP PBOXIMATE CAUSE. Sec. 290. Aggravation Of Pre-Exlsting Condition. 291. Aggravation Of An Injury By Subsequently Intervening Causes. 292. Accidents Occurring 1 To Employees While Performing Acts For The Master Other Than Those Within Their Particular Line Of Duty or Whose Conduct While Performing Their Duties To The Master Places Them Outside Of The Scope Of Their Employ- ment. ASSAULTS. 293. Resulting From Controversies Connected With or Pertaining To Employment. 294. Resulting From Controversies Not Connected With Or Pertaining To Employment. 295. Burden Of Proof To Show That The Injury Was Caused By An Accident And That The Accident Arose Out Of And In The Course Of The Employment. RULINGS AFFECTING SPECIFIC CASES AS ARISING OUT OF AND IN THE COURSE OF THE EMPLOYMENT. 296. Acting Under Unauthorized Orders. 297. Acids. 298. Act Of God. 299. Anaesthetic Causing Death During Surgical Operation. 300. Anthrax. 301. Appendicitis. 302. Apoplexy. 303. Apprentice. 304. Asphyxiation. 305. Assisting A Fellow Employee, Employee Of Another Employer Or A Stranger. 306. Bite Of Animals. 307. Bites And Stings From Insects And Reptiles. 308. Bone Felon. 309. Brights Disease. 310. Burns. 311. Cancer. 312. Carbuncle. 313. Charity Worker And Persons Seeking Relief From Charity, Injured. 314. Chauffeur. 315. Concussion Of Brain. 316. Contagious Skin Disease. 317. Delirium Tremens. 318. Dislocations. 319. Drivers Injured. xvn TABLE OF CONTENTS. CHAPTER VI. Con. Sec. 320. Drowning. 321. Electrical Shock And Electrocution. 322. Emergency. 323. Erysipelas. 324. Explosions. 325. Exposure. 326. Eye Injuries. 327. Falls From Vertigo Or Other Like Causes. 328. Falling Objects. 329. Frost Bites And Freezing. 330. Gangrene Resulting From Injury. 331. Glanders. 332. Heart Disease. 333. Heat Stroke And Sun Stroke. 334. Hemorrhage. 335. Hernia. 336. Independent Contractor Doing Extra Work. 337. Infection From Various Causes. 338. Influenza. 339. Insanity. 340. Intoxication. 341. Ivy Poisoning. 34i2. Landslide And Snowslides. 343. Lightning. 344. Mental Shock. 345. Misunderstood Orders. 346. Neurosis. 347. Paralysis. 348. Pneumonia. 349. Ruptures. 350. School Teacher Injured Or Killed. 351. Self Inflicted Injuries. 352. Suicide. 353. Testing Racing Motorcycle. 354. Tetanus. 355. Toxic Amblyopia. 356. Tuberculosis. 357. Typhoid Fever. 358. Ulcers. 359. Unintentional Injury By A Fellow Employee. 360. Using Elevator Contrary To Instructions. 361. Using Machinery Other Than That Employed To Use. xvni TABLE OP CONTENTS. CHAPTER VI. Con. Sec. 362. Volunteers. 363. Watchman. 364. Window Cleaner Falling From Ledge. CHAPTER VII. DEATH BENEFITS, FUNERAL EXPENSES, AND DEPENDENCY. 365. Death Benefits. 366. Funeral Expenses. DEPENDENTS. 367. Who Are Dependents and What Constitutes Dependency. 368. Presumption Relating to Dependency. 369. Wife Living Apart From Husband. 370. Dependency and Matters Relative Thereto as Question of Law or Fact. 371. Partial Dependents. 372. Total Dependents. 373. Dependency of Parents, Grandparents, and Other Relatives of De- ceased Workmen. 374. What Children May Be Dependents. 375. Alien Dependents, and Constitutionality of Provisions Pertaining to Aliens. 376. Illegal and Divorced Wives. 377. Desertion and Non-support. 378. Marriage or Remarriage of Dependent. 379. Rights of Dependents Independent of the Rights of Deceased, and Third Parties. 380. Death of Beneficiaries or of an Employee Before the Period For Which an Award Has Been Made Has Elapsed. 381. Absence of Dependents. 382. Inheriting From the Estate of Deceased or Receiving Benefits From Other Sources. 383. Claim for Compensation by the Personal Representative or Adminis- trator. 384. Dependent on More Than One Workman. 385. Submitting to an Operation. 386. Estopped to Dispute Claim of Dependents After Deceased's Death. 387. Necessity of Administrating Upon Estate of Workman. 388. Division of Compensation Between Dependents Double Compensa- tion. 389. Deductions. 390. Evidence. XIX TABLE OP CONTENTS. CHAPTER VII. Con. Sec. 391. Burden of Proof. 392. Guardians. 393. Dependency Under the Federal Act. 394. Adoption Under the Federal Act. 395. To Whom Compensation of Children With a Surviving Parent is Paid. 396. Illegitimate Children. 397. Who Is the Widow of an Employee. CHAPTER VIII. DISABILITY BENEFITS AND COMPENSATION BENEFITS. 398. In General. 399. Waiting Period. 400. Classes of Disability, and What Constitutes. 401. Disfigurement, Compensation Without Disability, Damages. 402. Impairment of Physical Efficiency Without Wage Loss. 403. Termination of Disability. 404. Pain Suffering and Old Age as Affecting Right to Compensation. 405. Latent Disease Accelerated by Accident Causing Disability. 406. Further Disability. 407. Extent of Disability, How and When Determined. PERMANENT PARTIAL. 408. In General. 409. Loss of or Injury to Eye. 410. Loss of Arm, Hand or Finger. 411. Injury to Arm, Hand or Finger. 412. Injury to Leg or Foot. 413. Loss of Leg or Foot. 414. Loss of or Impairment of Hearing. 415. Injury to the Nose. TEMPORARY PARTIAL. 416. In General. 417. Injury to Arm, Hand or Finger. PERMANENT TOTAL. 418. In General. 419. Loss of or Injury to Eye. 420. Loss of or Injury to Arm, Hand or Finger. 421. Injury to, or Loss of Leg or Foot. XX TABLE OF CO NT I/. CHAPTER VIII. Con TKMPORARY TOTAL. Sec. 422. In General. 423. Loss of Arm, Hand or Finger. 424. Loss of Leg or Foot. 425. Injury to Leg or Foot. 426. Concurrent Compensation for Concurrent Disability from Separate Causes. 427. Deductions and Set-offs, and Duty of Claimant to Reduce Loss. 428. Submission to a Surgical Operation and Refusal to Accept Medical Services Offered by Employer. CHAPTER IX. EARNING As BASIS OF COMI-KNSATIOX. 429. When Compensation May be Computed on the Basis of the Earn- ings of Another Employee in the Same Line of Work. 430. When Average Wages are to be Based on Amount Actually Earned. 431. Computation of Wages Where an Employee Has Worked Less Than a Year. 432. Where Employee Has Worked Substantially Full Year or More. 433. Employee Working More or Less Than 6 Days a Week. 434. Employment at Stated Periods. 435. Intermittent Employments. 436. Seasonal Employments. 437. Employee Under Contract of Employment for "Year Round." 438. Piece Work and Work by the Hour. 439. Wages Based Upon the Reports of an Employer and Employee. 440. Tips or Gratuities to be Considered When. 441. Probable Increase of Wages. 442. Higher Wage at Time of Accident. 443. Deducting Sundays, Holidays, and Days Employee Was Prevented From Working Through no Fault of His Own. 444. What Items Are Proper Matters to be Deducted From Workmen's Wages. 445. When Board and Room Value Should be Considered as Part of Wages. 446. Absence of Agreement as to Rate of Wages. 447. Dual Employments and Employers. 448. Where Weekly Wage Exceeds Statutory Amount. 449. Where the Union Scale Paid by Other Employers is Higher. 450. National Guardsman. 451. Judicial Notice. 452. Partial Disability Award. XXI TABLE OF CONTENTS. CHAPTER IX. Con. Sec. 453. Commissions. 454. Evidence. 455. Construction of the Term "Average Amount Contributed Weekly." CHAPTER X. INSURANCE. 456. General. 457. Self Insurance. 458. Nature of Policies Permitted and Liability of Holder. 459. Elxtra Territorial Coverage. 460. When Contract for Insurance is Consummated. 461. Coverage. 462. Liability of Principal Employer for Compensation to Employees of Subcontractor. 463. Recurrence of Disability and Liability of Subsequent Insurance Car- rier. 464. Construing a Policy. 465. Loaned Employee. 466. Subrogation of an Insurance Carrier. 467. Subrogation of Injured Employee to Employer's Rights Against Insurer in Case of Employer's Insolvency. 468. Cancellation of a Policy. 469. Providing Insurance as Relieving Employer. 470. Estoppel of Insurance Company to Deny Liability. 471. Where Employer is in Default in His Payments to the State Insur- ance Fund, or has Permitted His Policy to Lapse. 472. Validity of a Provision of the Act Requiring Payment Into a Special Fund. 473. State Funds. 474. Where Act Provides That Compensation Shall be Payable But Makes No Provision for Raising a Fund to Pay the Compensation. 475. Intervention. 476. Right of an Insurer to Object to an Agreement for Compensation. 477. Effect of Revocation of Insurance Carrier's Authority. 478. Satisfaction of an Award. 479. The Right of an Insurance Carrier to Attack an Award Collaterally 480. Reformation or Amendment of Policy. 481. Right to Sue Insurance Carrier. 482. Fraud in Securing Policy. 483. Lump Sum Agreements. 484. Notice as a Prerequisite to Liability. XXII TABLE OP CONTENTS. CHAPTER X. Con. Sec. 485. Transfer of Interest as Releasing Liability. 486. Power of Industrial Commission to Fix Insurance Rates. 487. Industrial Commission's Jurisdiction. CHAPTER XI. MEDICAL BENEFITS. 488. General. 489. Employers' Duty to Furnish Medical Aid. 490. Neglect, Failure, or Refusal of Employer to Provide Medical Treat- ment. 491. When the Employee is Personally Liable for His Medical Treatment. 492. What Included as Medical and Hospital Service. 493. Deduction of Excess Over Statutory Amount of Medical Expense Incurred. 494. Medical Aid After Statutory Period. 495: Medical Treatment Causing Disability. 496. Refusal, Neglect or Failure of Medical Treatment. 497. Charge and Recovery By Physician. 498. Submission to Physical Examination. 499. Autopsy. CHAPTER XII. COMPROMISE, SATISFACTION, RELEASE, AND ARBITRATION. 500. Compromise or Amicable Settlement. 501. Release. 502. Satisfaction. 503. Arbitration. CHAPTER XIII. COMMUTATION OF AWARD. 504. General. 505. Sufficiency of Evidence to Warrant Lump Sum Award. 506. Consent of Parties. CHAPTER XIV. EVIDENCE. ADMISSIBILITY. 507. General. 508. Hearsay. 509. Res Gestae. 510. Knowledge Communicated to Physicians. XXIII TABLE OF CONTENTS. CHAPTER XIV. Con. Verdict of Coroner's Inquest. Evidence of Negligence. Proof of Relation of Employer and Employee. Exclusion of Irrelevant Admission of Relevant Evidence in Same Document. 515. Employers' Reports Admissible. 516. Reception of Evidence. 517. Dying Declarations. 518. Written Statements of Fellow Employees Not Admissible as Against Employer. 519. Admissibility Generally in Specific Cases. WEIGHT AND SUFFICIENCY. 520. In General. 521. Relation of the Parties. 522. Acceptance or Rejection of the Statute. 523. As Establishing That the Injury Arose Out of and in the Course of the Employment. 524. As to Dependency. 525. Compensation. 526. As to Wilful Misconduct of Employer. PRESUMPTIONS. 527. That Injury Arose Out of and in the Course of the Employment. 528. As to Acceptance of the Act. 529. As to Dependency. 530. As to Existence of Beneficiaries. 531. As to Notice. 532. As to Wages. 533. Of Contract of Employment. 534. Against Self Infliction of Injuries. 535. Of Death. 536. As to Date of Filing Claim. 537. General. 538. Judicial Notice. BURDEN OF PROOF. CHAPTER XV. NOTICE AND LIMITATION. 539. General. 540. When the Time Begins to Run. 541. As Soon as Practicable. XXIV TABLE OF CONTENTS. CHAPTER XV. Con. Sec. 542. Effect of Delay or Failure to Give Notice. 343. Knowledge Obviating Necessity of Notice of Injury. 644. Notice Excused by Special Conditions. 545. Limitations Mandatory. 546. Sufficiency of Claim. 547. Delay Excused by Statutory Provisions. 548. Date of Filing. CHAPTER XVI. AOMIN-ISTBATION, POWER AN1) PBOCE1U Ith . 549. General. 550. Procedure. 551. Pleading. 552. Proceedings to Increase, Diminish or Terminate Compensation. 553. Rehearing. 554. Findings. 555. Powers of Commission or Board. CHAPTER XVII. APPEAL. 556. General. 557. Jurisdiction. 558. Right of Appeal. 559. Manner of Taking Appeal. 560. Conditions Precedent to an Appeal. 561. Matters Considered on Appeal. 562. Disposition of Appeal. 563. Matters Waived. 564. Remand. 565. Presumption. 566. Parties. 567. Jury and Instructions. CHAPTER XVIII. MIHCKU.ANKOUS MATTEBS. 568. Substituted Plans or Schemes. 569. Assignment and Exemption of Compensation. 570. Preference of Compensation Claims. XXV TABLE OF CONTENTS. CHAPTER XVIII. Con. Sec. 571. Double Compensation. 572. Penalties. 573. Attorneys. 574. Costs. 575. Interest. 576. Construction of Statutes. 577. Retroactive Operation of Statutes. 578. Referendum. 579. Rights Under Federal Compensation Act and Federal Employers' Liability Act. Pages 1320-50 Tables 1649 Appendix Forms. 1736 Synopsis by States. XXVI EXPLANATION OF ABBREVIATIONS App. Div. Reports of the Appellate Division of the Supreme Court of New York. A. E. U. S. C. C. Annual Reports or United States Compensation Com- mission. Bull. Ohio Ind. Com. Bulletin of the Ohio Industrial Commission. B. W. C. C. Butterworth's Workmen's Compensation Cases (British) continuation of W. C. C. C. A, Chancery Appeals (British). Cal. Ind. Ace. Com, Reports of California Industrial Accident Commis- sion. Conn. Comp. Dec. Decisions of the various Compensation Commissioners of the State of Connecticut. L. T. Law Times (British) K. B. King's Bench (British). Mass. Ind. Ace. Bd. Reports of the Massachusetts Industrial Accident Board. N. C. C. A. Negligence and Compensation Cases published by Callahan & Co., Chicago. Op. Sol. Dep. L. Opinions of the Solicitor of the Department of Labor, 1908 to 1915. S. 0. Session Cases (British). 8. L. R. Scottish Law Reports. W. C. A. Ins. Cas. Workmen's Compensation and Accident Insurance Cases (British Cases). W. C. C. Workmen's Compensation Cases (British). W. C. L. J. Workmen's Compensation Law Journal published by C. C. Hines Sons Company, 21 Platt Street New York. W. 0. & Ins. Rep. Workmen's Compensation Reports (British Cases). W. C. R. Workmen's Compensation Reports (British Cases). WORKMEN'S COMPENSATION LAW VOLUME I CHAPTER I. REASONS FOR, HISTORY OF, AND OBJECTIONS TO WORKMEN'S COMPENSATION LAWS. Sec. 1. Reasons Underlying Workmen's Compensation Legislation. 2. History of Workmen's Compensation Legislation. 3. Objections of Opponents of Compensation Laws. 1. Reasons Underlying Workmen's Compensation Legisla- tion. Modern industrial development has in the past ten years impressed the economist and the legislator, more than ever be- fore, with the rightful interest of the general public in indus- trial accidents. It has become obvious that our common and statutory law is not sufficiently elastic and is too unscientific and uncertain to mete out even justice to the victims of these accidents. The re- sult is, they frequently become public charges. Statistics show that approximately forty per cent of the in- dustrial accidents, causing disability are due neither to the fault of the employer nor the employee. Hence, this forty per cent of such accidents and the additional thirty per cent which are due principally, though not intentionally, to the fault of the employee, have not been compensated under our statutory and common law system, for the reason that compensation or dam- ages under that system depends entirely upon establishing the fact of fault or negligence of the employer as the proximate cause of the personal injury. This means that approximately seventy per cent of the wage loss caused by disability, due to industrial or work accidents, is borne by the workers themselves. 1 1. Lumberman's Reciprocal Ass'n v. Behnken. ( Tex. Civ. App. ) 226 S. W. 154, 7 W. C. L. J. 363. places the non-compensable personal injuries suffered in industry under the common law system at eighty per-cent. 1 1 WORKMEN'S COMPENSATION LAWS. Though there seems to be no sound reason why they should bear that part of the cost of the finished product of an industry. "The plain purpose of the compensation law is to make the risk of the accident one of the industry itself, to follow from the fact of the injury, and hence that compensation on account thereof should be treated as an element in the cost of produc- tion, added to the cost of the article and borne by the community in general." 2 The scheme is to charge upon the business through insur- ance, the losses caused by it, making the business and the ulti- mate consumer of its product, and not the injured employee, bear the burden of the accidents incident to the business. The statute contemplates the protection, not only of the employee, but of the employer, at the expense of the ultimate consumer. 3 The establishment of the fact of fault or negligence of the employer, under our common law system through an action in damages by the injured employe has been one of the thorns of that system, in that it "involves intolerable delay and great economic waste, gives inadequate relief, operates unequally and whether viewed from the standpoint of the employer or that of the employee, it is inequitable, and unsuited to the conditions of the modern industry. ' ' 4 It was with the view to remedy these multifarious evils and deficiencies of our statutory and common law system, as applied 2. Kenny v. Union Ry. Co., 166 App. Div. 49J, 152 N. Y. Supp. 117; In re Duncan, Ind. App. , (1920), 6 V. C. L. J. 148, 127 N. E. 289; Nadeau v. Caribou Light & Power Co., Me., 108 Atl. 190, 5 W. C. L. J. 238; Scotts Case, Me., 104 Atl. 794, 3 W. C. L. J. 49; Employer's Liab. Asaur. Ass'n v. Indus. Comm., Cal. , 177 Pac. 273, 3 W. C. L. J. 407. Wangler Boiler Co. v. Indus. Comm. 111 , 122 N. E. 366, 3 V, r . C. L. J. 617; Doey v. Clarence P. Rowland Co., 120 N. E. 53, N/Y. App. Div. , 2 W. C. L. J. 669; In re Cox, 225 Mass. 220, 114 N. E. 281, 15 N. C. C. A. 271; Bowne v. S. W. Bowne Co., N. Y. App. Div. , 116 N. E. 364, Bl W. C. L. J. 1183; Mac Donald v. Employer's Liab. Assur. Corp., Me. (1921), 112 At. 719; Devine's Case, Mass. , (1921), 129 N. E. 414. 3. Spratt v. Sweeney & Gray Co, 168 App. Div. 403, 153 N. Y. S. 505, 9 N. C. C. A. 918. 4. Western Idemnity Co. v. Pillsbury, 170 Cal. 686, 151 Pac. 398, 10 N. C. C. A. 1. 2 REASONS FOR, HISTORY OP, & OBJECTIONS TO ACT. 2 to industrial accidents, and establish in its place a more equita- ble and economically sound system, that our workmen's com- pensation laws have been enacted. The result has been most satisfactory in that injured employees receive immediate re- lief; a fruitful source of friction between employer and em- ployee has been eliminated, due to the fact that compensation is in most cases fixed and definite, a tremendous amount of bur- densome and expensive litigation has been eliminated, and a more harmonious relation between the employers and employees exists than was possible under the old system. 2. History of Workmen's Compensation Legislation. In 1883 a sick insurance statute was enacted in Germany with a view to alleviating the conditions due to 1he economic loss from industrial accidents, vocational disease, non employment and old age. The first compensation law was enacted in Germany July 6th, 1884, and was amended from time to time and finally codified in its act of July 6th, 1911. There had been modifications, how- ever, of the common or civil law of the countries of continental Europe that preceded the German Legislation. These modifi- cations tended toward the evolution of the idea that industries should pay compensation to their disabled workers, on the basis of the risks arising out of the employment. The Gladstone Act of 1880 was England's first important modification of her law of the employers' liability for damage to injured employes; though her first compensation law was not enacted until 1897. The Austrian law antedates that ten years. Practically all the countries of Europe, the provinces of Canada and Australia had enacted their compensation laws ten years or more before the first attempt was made in -the United States, which was the Federal Act of 1908. This act was of limited scope. Under it compensation was paid to artisans or laborers engaged in fed- eral government construction work. Compensation in no case continued for longer than one year, and was not paid when it was shown that the employee had been negligent. Massachusetts was the first state to take action on the sub- ject of workmen's compensation. Its Legislature appointed a 3 2 WORKMEN'S COMPENSATION LAWS. commission to investigate the subject in 1903, but no compensa- tion law resulted until 1911, in which year ten states 5 enacted workmen's compensation laws. Montana in 1909 enacted a law applying to coal miners which was declared unconstitutional as was also the compulsory New York Act of 1910. Since the first ten states enacted their respective compensation laws in 1911, thirty-three of the other states of the union and three territories have also enacted similar laws. The German compensation laws differ materially from the English and American laws in that the former are divided into three general divisions, sickness, accident and disability insur- ance. The sickness fund takes care of the employee during the first thirteen weeks of disability caused by accident. This fund is collected in the proportion of one third from the employers and two thirds from the employees. When the disability continues for more than thirteen weeks, compensation is paid out of the Accident Fund which is contrib- uted and managed entirely by the employers. The disability in- surance covers all other forms of disability, and the fund, there- for is contributed equally by employers and employees and is managed by representatives of both. There is, however, strict governmental supervision of the entire system. The German law requires all employers to join the Accident Insurance Fund of their respective trades as a condition pre- cedent to engaging in business. In Great Britain the compensation act creates a personal lia- bility which the employers may insure or not, as they deem best, though they usually insure in privately managed stock or mu- tual insurance companies and these are supervised in a general way by the government, just as the American companies are supervised by the various insurance departments of the different states. The American compensation acts contain many of the essen- tial features and phraseology of the British and Canadian acts, so that the British and Canadian decisions interpreting their 5. Cal. 111., Kans., Mass., Nev., N. H., N. J. Ohio, Wash, and Wis. 4 REASONS FOB, HISTORY OP, & OBJECTIONS TO ACT. 3 own acts throw considerable light on the interpretation of the American acts, and will therefore be cited frequently in the fol- lowing pages of this work. 3. Objections of Opponents of Compensation Laws. It is stated by the opponents of compensation laws, that they are arbitrary of application and that the compensation of ten to twenty dollars per week for stated periods or for life, in cases of permanent total disability, is inadequate when considered in the light of the liberal judgments for damages that are frequent- ly obtained in personal injury cases under the common law sys- tem. They overlook or disregard the fact mentioned in Section one, that under the common law system approximately seventy per cent of the victims of industrial accidents do not receive any compensation or damages, while under the compensation laws every employee who suffers an accident, arising out of and in the course of the employment, receives a fixed and definite compen- sation, regardless of the question of fault or negligence. They further overlook th'e fact of the great economic waste usually attendant on obtaining a judgment in damages, sucli as disrupt- ing the working organization of a plant or factory, by repeated- ly requiring employee witnesses to be taken from their work and wait in court often for days at a time to give their testi- mony or attend court and have the case continued time after time for one reason or another, thus involving great incon- venience and expense. Another item of great expense under the common law system, is that of attorney's fees. These personal injury cases are usually taken by attorneys on a contingent fee basis of one third to one half of the amount recovered by settle- ment or suit, so that by the time the alluringly large judgment reaches the hands of the injured employe, the amount is not often larger than he would receive under the compensation law, not to mention the fact that under the compensation law, he would receive the compensation at the time of his disability, when he most needs it, rather than be compelled to wait from six months to three, four or five years, as is often the case under the common law system, and then never be certain whether he will receive it at all. 6 3 WORKMEN'S COMPENSATION LAWS. They say it is unfair that an injured employee who earns fifty dollars per week should receive compensation at the rate of ten "to twenty dollars per week. Why should this difference not also be passed on to the ultimate consumer? It is considered that when an industry is paying its workmen such wages, the cost of industrial accidents is thereby paid in advance by the eom- sumer to the worker. He is earning as much as many employers, and, like the employer, is expected to save part of his earnings for old age and periods of possible disability. Though the more potent and controlling reason is that it is socially unwise to pay the injured worker full wages, or enough to permit him to live in comparative comfort or even luxury during his period of dis- ability, because of the encouragement to carelessness and to fraud and imposition through the tendency to malinger. The result being, that every industry would be compelled to carry a large false production cost represented by the payments made to .such malingering workers. Experience has demonstrated that this condition becomes burdensome where the weekly com- pensation is large. Bradbury in his work on workmen's compensation gives the source of much of the remaining opposition to compensation laws and the answer thereto, in the following paragraph, page 1, 3rd edition. "Until very recently it has been difficult for .American lawyers to reconcile themselves to the fundamentaj changes which workmen's compensation laws accomplish in the principles underlying doctrines with which they have long been familiar. The declaration that an employer shall be responsible for injuries to his workmen, whether or not the master is at fault, has, until very recently, in most parts of the United States, met with almost instant opposition whenever it has been made. Nevertheless, the compensation principle, when carefully analyzed, undoubtedly rests on sound economic, legal and moral foundations. Testimony from foreign countries and a rapidly increasing fund of evidence from many of the States of the Union, prove that it is not taking the employer's property without due process of law to compel him to pay compensation to an injured workman, when the injury is due to a risk which 6 REASONS FOB, HISTORY OF, A OBJECTIONS TO ACT. 3 is necessarily incident to the business. An assertion to the contrary is an economic fallacy." 6 6. The Arizona Copper Co., Ltd. v. Hammer, 250 U. S. 400, 4 W. C. L. J. 321. CHAPTER II. ELECTION, REJECTION AND CONSTITUTIONALITY OP ACTS. Sec. 4. Elective and Compulsory Acts, Constitutionality. 5. Constitutionality of Miscellaneous Provisions. 6. Presumption of and Notice of Election and Rejection. 7. Requirements as to Notice of Election. 8. Proof of Election. 9. Effect, Contractual Nature of Election and Duress. 10. Election, When Exempted By Having Less Than Stated Number of Employees. 11. Election By Farmers, Employers of Domestic Servants, Casual Employees And Outworkers. 12. Election as To Part Only Of Employees. 13. Election To Reject And Abolition Of Common Law Defenses. 14r. Election By Minors and Minors Generally. 15. Election To Reject And Action For Damages. 4. Elective and Compulsory Acts, Constitutionality. The Supreme Court of the United States has declared constitu- tional both the compulsory 1 and elective 2 form of act. There are only three states in which the first law enacted, was held unconstitutional. 3 Since these decisions both state 4 and federal 1. Mountain Timber Co. v. Washington (March 1917) 243 U. S. 219, 61 L. Ed. 685, 13 N. C. C. A. 927; Camunas v. N. Y. & P. R. S. S. Co, (1919) 171 C. C. A. 76. 2. Hawkins v. Bleakly (March 1917) 243 U. S. 210; 61 L. Ed. 678, 37 Sup. Ct. 255, 13 N. C. C. A. 959; N. Y. Central R. R. Co. v. White (March 1917) 243, U. S. 188, 13 N. C. C. A. 943. 61 L. E. 667, 37 Sup. Ct. 247; Gauthier v. Penobscot Chemical Co., Me. , 1921, 113 Atl. 28. 3. Ives v. South Buffalo Ry. Co. (March 1911) 201 N. Y. 271, 94 N. E. 431, 34 L. R. A. (N. S.) 162, 1 N. C. C. A. 517. on the ground that it imposed upon employers a liability without fault or contract; Cunning- ham v. North Western Improvement Co., 44 Mont. 180, 119 Pac. 554, 1 N. C. C. A. 720, held it denied to employers, equal protection of the laws; Kentucky State Journal v. Workmen's Compensation Board, 161 Ky. 562, 162 Ky. 387, L. R. A. 1916 A. 402, 172 S. W. 674, L. R. A. 1916 B, 389 various grounds mentioned. 4. The following are leading cases in the state courts sustaining the constitutionality of the compensation acts of their respective States: 8 ELECTION, REJECTION & CONSTITUTIONALITY OP ACTS. 4 courts 5 have uniformly sustained the general constitutional questions involved in the Workmen's Compensation Acts, 4 Continued. 5. Hawkins v. Bleakley, 220 Fed. 378; Raymond v. Chicago, etc. R. Co, 233 Fed. 239. Arizona Superior & Pittsburg Copper Co. v. Davidovich, 19 Ariz. 402, 171 Pac. 127, 16 N. C. C. A. 801; 1 W.- C. L. J. 727; C. A. S. Co. v. Ujack, 15 Ariz. 382; Arizona Copper Co. v. Hammer, 250 U. S. 400, 4 W. C. L. J. 321; New Cornelia Copper Co. v. Espineza, (Cir. Ct. of App.) (Ariz.), 268 Fed. 742; Indus. Comm. v. Crisman (Ariz.), 199 Pac. 390, 1921 Act unconstitutional. California Western Indemnity Co. v. Pillsbury, 170 Cal. 686, 10 N. C. C. A. 1, 151 Pac. 398; Western Indem. Co. v. Indus. Comm., Cal. , 163 Pac. 60, Al. W. C. L. J. 222; Metal Co. v. Pillsbury, 156 Pac. 491, 172 Cal. 407; Illinois Deibeikus v. Link Bolt Co., 251 111. 454, 104 N. E. 211; Strom v. Postal Telegraph Co., 271 111. 544, 111 N. E. 555; Victor Chem- ical Works v. Industrial Board, 274 111. 11, 113 N. E. 173; Casperis Stone Co. v. Indus. Comm. 111. , 115 N. E. 822. Iowa Hunter v. Colfax Coal Co., 154 N. W. 1037, 11 N. C. C. A. 886, 175 la. 245. Kansas Shade v. Ash Grove Co., 93 Kan. 257, 144 Pac. L49; Hovis v. Cudahy Co., 95 Kan. 505, 148 Pac. 626. Kentucky Greene v. Caldwell, 186 S. W. 648, 150 Ky. 571. Maine-^In re Mailman, 118 Me. 172, 106 Atl. 196, Fish's Case, 113 Me. 489, 107 Atl. 32, 4 W. C. L. J. 390. Maryland Solvuca v. Ryan and Reilly Co., Md. App. , 101 Atl. 710. Massachusetts Opinions of Justices, 209 Mass. 607, 96 N. E. 308; Young v. Duncan, 218 Mass. 346, 106 N. E. 1. Duart v. Simmons 231 Mass. 313, 121 N. E. 10, 3 W. C. L. J. 136. Michigan Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8. 153, NT. W. 49; Wood v. City of Detroit, 155 N. W. 592, L. R, A. 1916 C. 388. Minnesota Matheson v. Minneapolis Street Ry., 126 Minn. 2.86, 148 N. W. 71. Montana Lewis & Clark County v. Industrial Board, 155 Pac. 268; Shea v. North Butte Mining Co., 3 W. C. L. J. 768, 179 Pac. 499. New Hampshire Wheeler v. Contootuck Mills, 94 Atl. 265, 77 N. H. 551. New Jersey Sexton v. Newark Dist. Tel. Co., 84 N. J. L. 85, 3 N. C. C. A. 569, 86 Atl. 451, 86 N. J. L. 701, 91 Atl. 1070; Huyett v. Penna Ry. Co, 86 N. J. L. 683, 92 Atl. 58; Troth v. Mlllville Bottle Works, 86 N. J. L. 558, 91 Atl. 1031. 9 4 WORKMEN'S COMPENSATION LAWS. a though in some states minor provisions of the acts have been held unconstitutional. 6 6. Courier v. Simpson Construction Co., 246 111. 488; 106 N. E. 350. Great Western Power Co. v. Pillsbury, 170 Cal. 180, 149 Pac. 35; 9 N. C. 4 Continued. New York Jensen v. Southern Pac. Co., 215 N. Y. 514, 109 N. E. 600, L.R. A. 1916 A, 493 Ann. Gas. 1916 B, ^79, 9 N. C. C. A. 286; Sperduto v. New York City Int. Ry. Co. (N. Y.) ? W.C. L. J. 503, 226 N. Y. 73, 123 N. E. 207. North Dakota State ex rel. Amerland v. Hagan, N. Dak. , 175 N. W. 372, 5 W. C. L. J. 446. Ohio Ex rel. Yaple v. Creamer, 85 Ohio St. 349; 97 N. E. 602, 1 N. C. C. A. 30; Jeffrey Mfg. Co., v. Blagg, 90 Ohio 376, 108 N. E. 465, Affirmed, 235 U. S. 571, 59 L. Ed. 364, 35 Sup. Ct. 167, 7 N. C. C. A. 570. Oklahoma Adams v. Iten Biscuit Co., 162 Pac. 938. Oregon Evanhoff v. State Ind. Commission, 154 Pac. 106. 78 Ore. 503. Pennsylvania Anderson v. Carnegie Steel Co., 99 Atl. 215, 255 Pa. 33. Rhode Island Sayles v. Foley, 96 Atl. 340, 38 R. I. 484. Texas Middleton v. Texas Power & Light Co., 178 S. W. 956, 185 S. W. 556; Marshall Mill & Elevator Co. v. Schanberg (Tex. Civ. App.) 190 S. W. 229. Utah Garfield Smelting Co. v. Ind. Com. of Utah, 3 W. C. L. J. 531. 178 Pac. 57; Reteuna v. Indus. Comm., Utah , 185 Pac. 535, 5 W. C. L. J. 327. Washington State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, 117 Pac. 1101, 37 L. R. A. (N. S.) 466, 3 N. C. C. A. C99; State v. City of Seattle, 73 Wash. 390, 132 Pac. 45; Stfrtz v. Industrial Commission, 158 Pac. 256; State v. Mountain Timber Co., 75 Wasn. 581, 135 Pac. 645, 5 N. C. C. A. 811. West Virginia De Francesco v. Piney Mining Co., 76 W. Va. 756, 86 S. E. 777, 10 N. C. C. A. 1015, Rhodes v. J. B. B. Coal Co., 90 S. E. 796, 79 W. Va. 71, 78 W. Va. 144, Watts v. Ohio Valley Electric Co., 88 S. E. 659. Wisconsin Borgnis v. Falk, 147 Wis. 327, 133 N. W. 209, 3 N. C. C.A. 649, 37 L. R. A. (N. S.) 489. The following states have adopted amendments to their constitutions to permit of compulsory laws, i. e.: California (1911), Ohio (1912), New York (1913), Pennsylvania (1915), and in California an amendment further enlarging the power of the Legislature is pending. Under the Constitution of Arizona and Wyoming definite forms of compensation laws are prescribed. 10 ELECTION, REJECTION A CONSTITUTIONALITY OP ACTS. 4 In the following twelve States the law, though elective as to private employers, is compulsory as to such public employments as are covered: Colorado, Indiana, Iowa, Louisiana, Maine, Michigan, Missouri, Montana, Nevada, New Jersey, Pennsylvania, South Dakota, and Wisconsin. In the following eleven States and one Territory the law is compulsory as to some or all classes of private employers affected: Arizona Cali- fornia, Idaho, Illinois, Maryland, New York, Ohio, Oklahoma, Utah, Wash- ington, Wyoming and Hawaii. All of these laws except that of Arizona are equally compulsory as to employees. North Dakota is compulsory as to all employers and employees. The Porto Rico Act which '.~ compulsory upon employees was held to be compulsory as to employers also. Camunas v. N. Y. & P. R. S. S. Co., 171 C. C. A. 76. In the "ollowing thirty-one states and two Territories the law is elec- tive as to all private employments covered: Alabama, Colorado, Connecti- cut, Delaware, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Vermont, West Virginia, Virginia, Wisconsin, Alaska, and Porto Rico. And New York, besides a compulsory act, has also a little used elective act of wider scope. (Art. 14 of ch. 36 Laws 1909, as amended.) Under all these acts except that of West Vir- ginia, the liability for compensation is elective as to both employers and employees. Under the act of that State employers only have the right of election. Under the New Hampshire act (which is elective as to em- ployers) employees have the right of election after injury, this was formerly, also true of the Arizona Act. The following quotation from the opinion of the Supreme Court of the United States in the case of New York Central Rail- road Co. v. White, 243 U. S. 188, 61 L. Ed. 667, 13 N. C. C. A. 943, while lengthly, is so pertinent and valuable on the question of the Constitutionality of Compensation Acts generally that the au- thor feels justified in inserting it. "In considering the consti- tutional question, it is necessary to view the matter from the standpoint of the employee as well as from that of the em- ployer. For, while plaintiff in error is an employer, and cannot succeed without showing that its rights as such are infringed (Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531, 544 (58 L. Ed. 713) ; Jeffrey Mfg. Co. v. Blagg, 235 U. S. 167, 576 (59 L. Ed. C. A. 466; Perry v. Industrial Accident Commission of California et al. (Cal.) 181 Pac. 788, 4 W. C. L. J. 350 (1919); Dominguez v. Pendoia, Cal. App. , (1920), 188 Pac. 1025, 6 W. C. L. J. 3. 11 4 WORKMEN'S COMPENSATION LAWS. 364, 7 N. C. C. A. 570) yet, as pointed out by the court of appeals in the Jensen Case (215 N. Y. 526) 1916 A, L. R. A. 403, 109 N. E. 600, the exemption from further liability is an essential part of the scheme, so that the statute, if invalid as against the em- ployee, is invalid as against the employer. The close relation of the rules governing responsibility as between employer and em- ployee to the fundamental rights of liberty and property is of course recognized. But those rules, as guides of conduct, are not beyond alteration by legislation in the public interest. No person has a vested interest in any rule of law entitling him to insist that it shall remain unchanged for his benefit. Munn v. Illinois, 94 U. S. 113, 134 (24 L. Ed. 77) ; Hurtado v. California, 110 U. S. 516, 532 (28 L. Ed. 232) ; Martin v. Pittsburg & Lake Erie R. R., 203 U. S. 284, 294 (51 L. Ed. 184, 8 Ann. Cas. 87) ; Second Employers' Liability Cases, 223 U. S. 1, 50 (56 L. Ed. 327, 1 N. C. C. A. 875, 38 L. R. A. (N. S.) 44) ; Chicago & Alton R. R. v. Tranbarger, 238 U. S. 6.7, 76 (59 L. Ed 1204). The common law bases the employer's liability for injuries to the employee upon the ground of negligence ; but negligence is merely the dis- regard of some duty imposed by law; and the nature and ex- tent of the duty may be modified by legislation, with corre- sponding change in the test of negligence. Indeed, liability may be imposed for the consequences of a failure to comply with a statutory duty, irrespective of negligence in the ordinary sense ; safety appliance acts being a familiar instance. St. Louis & Iron Mountain Ry. v. Taylor, 210 U. S. 281, 295 (52 L. Ed. 1061, 21 Am. Neg. Rep. 464; Texas & Pacific Ry. Co. v. Rigsby, 241 U. S. 33, 39, 43 (60 L. Ed. 874). "The fault may be that of the employer himself, or most frequently that of another for whose conduct he is made re- sponsible according to the maxim responded! superior. In the lat- ter case the employer may be entirely blameless, may have exer- cised the utmost human foresight to safeguard the employee ; yet, if the alter ego while acting within the scope of his duties be neg- ligent in disobedience, it may be, of the employer's positive and specific command the employer is answerable for the conse- quences. It cannot be that the rule embodied in the maxim is un- alterable by legislation." 12 ELECTION, REJECTION & CONSTITUTIONALITY OP ACTS. 4 "The immunity of the employer from responsibility to an em- ployee for the negligence of a fellow employee is of comparative- ly 'recent origin, it being the product of the judicial conception that the probability of a fellow workman's negligence is one of the natural and ordinary risks of the occupation, assumed by the employee and presumably taken into account in the fixing of his wages. The earliest reported cases are Murray v. Railroad Company (1841), 1 McMull. (S. C.) 385, 398 (17 Am. Neg. Cas. 308) ; Farwell v. Boston & Worcester R. R. Corp. (1842), 4 Mete. 49, 57 (15 Am. Neg. Cas. 407) ; Hutchison v. York, Newcastle & Berwick Ry. Co. (1850), 5 Exch. 343, 351, 19 L. J. Exch. 296, 299, 14 Jr. 837, 840; Bartonsville Coal Co. v. Reid (1858), 3 Macq. H. L. Cas. 266, 284, 295. And see Randall v. Baltimore & Ohio R. R. Co., 109 U. S. 478, 483 (27 L. Ed. 1003) ; Northern Pacific R. R. Co. v. Herbert, 116 U. S. 642, 647 (29 L. Ed. 755). The doctrine has prevailed generally throughout the United States, but with material differences in different jurisdictions respecting who should be deemed a fellow-servant and who a vice principal or alter ego of the master, turning sometimes upon refined distinctions as to grades and departments in the employment. See Knutter v. N. Y. & N. J. Telephone Co., 67 N. J. Law 646, 650-653, 52 Atl. 565 (12 Am. Neg. Rep. 109, 58 L. R. A. 808). It needs no argument to show that such a rule is subject to modification or abrogation by a state upon proper occasion. "The same may be said with respect to the general doctrine of assumption of risk. By the common law the employee as- sumes the risks normally incident to the occupation in which he voluntarily engages; other and extraordinary risks and those due to the employer's negligence he does not assume until made aware of them, or until they become so obvious that an ordinarily prudent man would observe and appreciate them, in either of which cases he does assume them, if he continue in the employment without obtaining from the employer an as- surance that the matter will be remedied ; but if he receive such an assurance, then, pending performance of the promise, the employee does not in ordinary cases assume the special risk. Seaboard Air Line v. Horton, 233 U. S. 492, 504 (58 L. Ed. 1062, 13 4 WORKMEN'S COMPENSATION LAWS. . 8 N. C. C. A. 834, Ann. Gas. 1915 B 475) ; 239 U. S. 595, 599 (60 L. Ed. 458). Plainly, these rules, as guides of conduct and tests of liability, are subject to change in the exercise of the sovereign authority of the state. "So, also, with respect to contributory negligence. Aside from injuries intentionally self-inflicted, for which the statute under consideration affords no compensation, it is plain that the rules of law upon the subject, in their bearing upon the employer's responsibility, are subject to legislative change; for contrib- utory negligence, again, involves a default in some duty resting on the employee, and his duties are subject to modification. "It may be added, by way of reminder, that the entire matter of liability for death caused by wrongful act, both within and without the relation of employer and employee, is a modern statutory innovation, in which the states differ as to who may sue, for whose benefit, and the measure of damages. \v York Central R. R. Co. v. White, supra, as showing that the Workmen's Compensation Law of New York is not to be deemed arbitrary and unreasonable from the standpoint of natural justice, are sufficient to support the State of Washington in concluding that the matter of compensation for accidental in- juries with resulting loss of life or earning capacity of men era- ployed in hazardous occupations is of sufficient public moment to justify making the entire matter of compensation a public concern, to be administered through state agencies. Certainly the operation of industrial establishments that in the ordinary 29 4 WORKMEN'S COMPENSATION LAWS. course of things frequently and inevitably produce disabling or mortal injuries to the human beings employed is not a matter of wholly private concern. It hardly would be questioned that the state might expend public moneys to provide hospital treat- ment', artificial limbs, or other like aid to persons injured in in- dustry, and homes or support for the widows and orphans of those killed. Does direct compensation stand on a less secure ground? A familiar exercise of state power is the grant of pensions to disabled soldiers and to the widows and dependents of those killed in war. Such legislation usually is justified as fulfilling a moral obligation or as tending to encourage the per- formance of the public duty of defense. But is the state powerless to compensate, with pensions or otherwise, those who are disabled, or the dependents of those whose lives are lost, in the industrial occupations that are so necessary to develop the resources and add to the wealth and prosperity of the state? A machine as well as a bullet may produce a wound, and the disabling effect may be the same. In a recent case, the Supreme Court of Washington said: 'Under our statutes the workman is the soldier of organized industry accepting a kind of pension in exchange for absolute insurance on his master's premises.' Stertz v. Industrial Insurance Commission, 158 Pac. 256, 263. It is said that the compensation or pension under this law is not confined to those who are left without means of support. This is true. But is the state powerless to succor the wounded except they be reduced to the last extremity ? Is it debarred from compensating an injured man until his own resources are first exhausted? This would be to discriminate against the thrifty and in favor of the improvident. The power and discretion of the state are not thus circumscribed by the Fourteenth Amend- ment. "Secondly, is the tax or imposition so clearly excessive as to be a deprivation of liberty or property without due process of law? If not warranted by any just occasion, the least imposi- tion is oppressive. But that point is covered by what has been said. Taking the law, therefore, to be justified by the public nature of the object, whether as a tax or as a regulation, the question Avhether the charges are excessive remains. Upon this 30 ELECTION, REJECTION A CONSTITUTIONALITY OP ACTS. 4 point no particular contention is made that the compensation allowed is unduly large; and it is evident that unless it be so the corresponding burden upon the industry cannot be regarded as excessive if the state is at liberty to impose the entire burden upon the industry. With respect to the scale of compensation, we repeat what we have said in New York Central R. R. Co. v. White, supra (ante), that in sustaining the law we do not intend to say that any scale of compensation, however insig- nificant on the one hand or onerous on the other, would be supportable, and that any question of that kind may be met when it arises. "Upon the third question the distribution of the burden there is no criticism upon the act in its details. As we have seen, its fourth section prescribes the schedule of contribution, dividing the various occupations into groups, and imposing various percentages evidently intended to be proportioned to the hazard of the occupations in the respective groups. Cer- fjiinly the application of a proper percentage to the pay roll of the industry cannot be deemed an arbitrary adjustment, in view of the legislative declaration that it is 'deemed the most accu- rate method of equitable distribution of burden in proportion to relative hazard.' Tt is a matter of common knowledge that in the practice of insurers the pay roll frequently is adopted as the basis for computing the premium. The percentages seem to be high: but when these are taken in connection with the provisions requiring accounts to be kept with each industry in accordance with the classification, and declaring that no class shall be liable for the depletion of the accident fund from accidents happening in any other class, and that any class having sufficient funds to its Credit at the end of the first three months or any month there- after is not to be called upon, it is plain that, after the initial payment, which may be regarded, as a temporary reserve, the assessments will be limited to the amounts necessary to meet actual losses. As further rebutting the suggestion that the im- position is exorbitant or arbitrary, we should accept the dec- laration of intent that the fund shall ultimately become neither more or less than self-supporting, and that the rates are subject 31 4 WORKMEN'S COMPENSATION LAWS. to future adjustment by the legislature and the classifications to rearrangement according to experience, as plain evidence of an intelligent effort to limit the burden to the requirements of each industry. "We may conveniently answer at this point the objection that the act goes too far in classifying as hazardous large num- bers of occupations that are not in their nature hazardous. It might be sufficient to say that this is no concern of plaintiff in error, since it is not contended that its business of logging tim- ber, operating a logging railroad, and operating a sawmill with power-driven machinery, or either of them, are non-hazardous. Plymouth Coal Co. v. Pennsylvania, 232 IT. S. 531, 544 (58 L. Ed. 713). But further, the question whether any of the indus- tries enumerated in section 4 is non-hazardous will be proved by experience, and the provisions of the act themselves give sufficient assurance that if in any industry there be no accident there will be no assessment, unless for expenses of adminis- tration. It is true that, while the section as originally enacted provided for advancing the classification of risks and premium rates in a particular establishment shown by experience to be unduly dangerous because of poor or careless management, there was no corresponding provision for reducing a particular industry shown by experience to be included in a class which imposed upon it too high a rate. This was remedied by the amendment of 1915, quoted in the margin, above, which, how- ever, cannot affect the decision of the present case. But in the absence of any particular showing of erroneous classification and there is none the evident purpose of the original act to classify the various occupations according to the respective hazard of each is sufficient answer to any contention of improper distribution o r the burden amongst the industries then- selves. "There remains, therefore, only the contention that it is inconsistent with the due process and equal protection clauses of the Fourteenth Amendment to impose the entire cost o acci- dent loss upon the industries in which the losses arise. But if, as the Legislature of Washington has declared in tlie first sec- tion of the act, injuries in such employments have become fre- ,32 ELECTION, REJECTION A CONSTITUTIONALITY OP ACTS. 4 quent and inevitable, and if, as we have held in New York Cen- tral R. R. Co. v. White, supra, the state is at liberty, notwith- standing the Fourteenth Amendment, to disregard questions of fault in arranging a system of compensation for such injuries, we are unable to discern any ground in natural justice or funda- mental right that prevents the state from imposing the entire burden upon the industries that occasion the losses. The act iu affect puts these hazardous occupations in the category of dan- gerous agencies, and requires that the losses shall be reckoned as a part of the cost of the industry, just like the pay roll, the repair account, or any other item of cost. The plan of assess- ment insurance is closely followed, and none more just has been suggested as a means of distributing the risk and burden of losses that inevitably must occur, in spite of any care that may be taken to prevent them. "We are clearly of the opinion that a state, in the exercise of its power to pass such legislation as reasonably is deemed to be necessary to promote the health, safety, and general welfare of its people, may regulate the carrying on of industrial occu-- pations that frequently and inevitably produce personal injuries and disability with consequent loss of earning power among the men and women employed, and, occasionally loss of life oif those who have wives and children or relations dependent upon them for suport, and may require that these human losses shall be charged against the industry, either directly, as is done in the case of the act sustained in New York Central R. R. Co. v. White, supra, or by publicly administering the compensation and distributing the cost among the industries affected by means of a reasonable system of occupation taxes. The act cannot be deemed oppressive to any class of occupation, provided the scale of compensation is reasonable, unless the loss of hu- man life and limb is found in experience to be so great that if charged to the industry it leaves no sufficient margin for rea- sonable profits. But certainly, if any industry involves so great a human wastage as to leave no fair profit beyond it, the state is at liberty, in the interest of the safety and welfare of its people, to prohibit such an industry altogether. 33 W. C. 3 4 WORKMEN'S COMPENSATION LAWS. "To the criticism that carefully managed plants are in effect required to contribute to make good the losses arising through the negligence of their competitors, it is sufficient to say that the act recognizes that no management, however careful, can afford immunity from personal injuries to employees in the hazardous occupations, and prescribes that negligence is not to be determinative of the question of the responsibility of the employer or the industry. Taking the fact that accidental in- juries are inevitable, in connection with the impossibility of foreseeing when, or in what particular plant or industry they will occur, we deem that the state acted within its power in de- claring that no employer should conduct such an industry with- out making stated and fairly apportioned contributions adequate to maintain a public fund for indemnifying injured employees and the dependents of those killed, irrespective of the partic- ular plant in which the accident might happen to occur. In short, it cannot be deemed arbitrary or unreasonable for the state, instead of imposing upon the particular employer entire responsibility for losses occurring in his own plant or work, to impose the burden upon the industry through a system of oc- cupation taxes limited to the actual losses occurring in the re- spective classes of occupation. * * * Perhaps a word should be said respecting a clause in section 4 which reads as follows: 'It shall be lawful for the employer to deduct or obtain (sic) any part of the premium required by this section to be by him paid from the wages or earnings of his workmen or any of them, and the making or attempt to make any such deductions shall be a gross misdemeanor.' If this were to be construed so broad- ly as to prohibit employers and employees, in agreeing upon wages and other terms of employment, from taking into con- sideration the fact that the employer was a contributor to the state fund, and the resulting effect of the act upon the rights of the parties, it would be open to serious question whether as thus construed it did not interfere to an unconstitutional ex- tent with their freedom of contract. So far as we are aware the clause has not been so contrued, and on familiar principles we will not assume in advance that a construction will be adopt- ed such as to bring the law into conflict with the Federal Consti- 34 ELECTION, REJECTION & CONSTITUTIONALITY OP ACTS. 5 tution. Uai-htel v. Wilson, 204 U. S. 36, (51 L. Ed. 357) ; Ply- mouth Coal Co. v. Pennsylvania, 232 U. S. 531, 546 (58 L. Ed. 715). " 8 5. Constitutionality of Miscellaneous Provisions. The subrogation of the employer to the rights of the injured em- ployee against the negligent third person is not unconstitution- al. 9 The provision of the New York Act allowing compensation for facial disfigurement to an amount not .to exceed $3,500.00 does not deprive employers, ordered to pay such an award, of their property without due process of law in contravention of the Fourteenth Amendment, the provision not being unrea- sonable, arbitrary, or contrary to fundamental right while the allowance prescribed does not exceed the constitutional limita- tions on state power. 10 The provision of the Colorado Act providing for the assess- ment of premiums against public employers to provide a fund for the benefit of injured employees is constitutional, being a proper exercise of the police power of the state in caring for public needs. 11 In discussing the constitutionality of the North Dakota Act the Supreme Court said: "It is within the province of the Legis- lature, in the proper exercise of its police power, as a matter of public policy, to declare that there is an element of hazard or of danger in employment in the modern business world, and this court, upon construction of its definition in that regard, will not presume that the term 'hazardous' must necessarily refer 8. Mountain Timber Co. v. State of Washington, 243 U. S. 219, 61 L. Ed. 685, 13 N. C. C. A. 927, 37 Sup. Ct. 260. 9. Friebel v. Chicago City Ry. Co. et al.. 280 111. 76, 117 N. E. 467, 16 N. C. C. A. 390; Western States Gas and Electric Co. v. Bayslde Lbr. Co., Cal. , 187 Pac. 735, 5 W. C. L. J. 649 (1920). 10. New York Cent. R. Co. v. Bianc, U. S. , 40 Sup. Ct. Rep. 44, 5 W. C. L. J. 3; Sweeting v. American Knife Co.. 226 N. Y. 199, 123 N. E. 82, 4 W. C. L. J. 125, 5 W. C. L. J. 3. 11. School Dist. No. 1 v. Indus. Comm. of Colo., Colo. , 185 Pac. 348, 5 W. C. L. J. 163. 35 5 WORKMEN'S COMPENSATION LAWS. to employments that have heretofore been termed hazardous, by reason of extra features of hazard inherent to the nature of occupation. The Legislature, within the exercise of its police powers, in enacting a compulsory Compensation Act, may abro- gate common-law defenses, and impose liability without fault, substituting new rules of legal procedure in place of the old, so long as its action in that regard is not arbitrary, unjust, or unreasonable. 12 Limiting the application of the Arizona Act to the injured employee engaged in manual and mechanical labor is a proper exercise of the legislative power under the Arizona Consti- tution. 18 Making rights and remedies under the Louisiana Act ex- clusive, does not undertake to fix the price of manual labor contrary to the state constitution. 14 The provision of the New York Act extending its benefits to maratime work is not in violation of the Federal Constitution. 15 The California Supreme Court came to a contrary conclusion, 16 12. State ex rel. Amerland v. Hagan, N. Dak. , 175 N. W. 372, 5 W. C. L. J. 446; Matthiessen & Hegler Zinc Co. v. Indus. Bd., 111. , 120 N E. 249, 2 W. C. L. J. 875; Superior & Pittsburg Copper Co. v. Davidovich, 19 Ariz. 402, 171 Pac. 127, 1 W. C. L. J. 727, 16 N. C. C. A. 801; Sayles v. Poley, 38 R. I. 489, 96 Atl. 340, 12 N. C. C: A. 949; West- ern Indemnity Co. v. Pillsbury, 170 Cal. 686, 151 Pac. 398, 10 N. C. C. A. 1; State Indus. Comm. v. Voorhees, App. Div. , 184 N. Y. S. 888, 7 W. C. L. J. 238; Page v. New York Realty Co., Mont. , 1921, 196 Pac. 871. 13. Arizona Eastern R. Co. v. Mathews, 20 Ariz. 282, 180 Pac. 159, 4 W. C. L. J. 3; Marshall Field & Co. v. Indus. Comm. of 111., 285 111. 333, 120 N. E. 773, 3 W. C. L. J. 105; Western Indemnity Co. v. Pillsbury, 170 Cal. 686, 151 Pac. 398, 10 N. C. C. A. 1. 14. Day v. Louisiana Central Lumber Co., La. ,81 So. 328, 4 W. C. L. J. 89. 15. Stewart v. Knickerbocker Ice Co., N. Y. App. , 123 N. E. 382; Ruddy v. Morse Dry Dock & Repair Co., 176 N. Y. Supp. 731, 4 W. C. L. J. 448. 16. Sudden & Christenson v. Indus. Comm., Cal. , 188 Pac. 803, 5 W. C. L. J. 768. 36 ELECTION, REJECTION A CONSTITUTIONALITY OP ACTS. 5 and subsequently the United States Supreme Court reversed the New York Court." It is within the power of the Legislature under Article 1, Sec- tion 19, of the New York Constitution to provide in the Work- men's Compensation Law, Section 11, that liability in death cases shall be exclusive, except in certain cases. 18 The Supreme Court of Ohio has held that the act of March 20, 1917 (107 Ohio Laws, pp. 157, 159), amending section 1465 69 Page & A. Gen. Code, is a valid and constitutional exercise of the authority conferred upon the General Assembly of Ohio by section 35 of Article 2 of the Constitution of Ohio and applies to all employers of labor mentioned in section 1465 60 of its General Code, holding the question involved to be in every way analogous to the one arising in the case of Louis- ville & Nashville R. Co. v. Mottley, 219 U. S. 467, 31 Sup. Ct. 265, 34 L. R. A. (N. S.) 671, in which it was held by the Supreme Court of the United States that, "The power of Congress to act in regard to matters delegated to it is not hampered by contracts made in regard to such matters by individuals; but contracts of that nature are made subject to the possibility that, even if valid when made, Congress may by exercising its power render them invalid." 19 The Supreme Court of Washington in passing on the con- stitutionality of section 19 of its act, Laws of 1917 p. 96 said: "The respondent, in support of his argument that section 19 is class legislation, insists that the right to institute an action for personal injuries is given to persons engaged 'in main- tenance and operation of railways doing interstate, foreign and intrastate commerce, and in maintenance and construction of their equipment,' and provides that such railroads shall, in 17. Knickerbocker Ice Co. v. Stewart, U. S. , 40 Sup. Ct. R. 438, 6 W. C. L. J. 119. 18. Basso et al. v. John Clerk & Son, Inc., 177 N. Y. Supp. 484, 4 W. C. L. J. 530. 19. Thornton v. Duffy, 99 Ohio St. 120, 124 N. E. 64, 4 W. C. L. J. 548; Porter v. Hopkins, 91 Ohio 74, 109 N. E. 629, 9 N. C. C. A. 839; Utah Fuel Co. v. Indus. Comm., Utah , (1920), 194 Pac. 122, 7 W. C. L. J. 370. 37 5 WORKMEN'S COMPENSATION LAWS. actions against them, have available only such defenses as are available to interstate railroads or railroads engaged in inter- state business under the Federal Employer's Act, and that con- stitutes a discrimination between the rights possessed by em- ployees of railroads such as logging, interurban, street, etc., for the reason that workmen engaged upon railroads doing purely an intrastate business are subject to the same hazards as those workmen, engaged in similar occupations upon railroads within the act. In other words, that an arbitrary classification exists, while there is no substantial distinction between the classes of workmen- "The equal protection of the laws means the pro- tection of equal laws, but this equality of protection is not vio- lated by classification, provided equal protection is afforded the members of each class. The power of the state to classify the objects of legislation is very broad. It is a matter of legis- lative discretion, and such classification will be upheld if it bears a reasonable relation to a proper object sought to be accomplish- ed, even if it may appear unwise or unjust. The courts will not in- terfere with such classification unless the distinctions made are clearly arbitrary.' Taylor, Due Process of Law, p. 725, Sec. 458. ' ' It was held that this section did not deny equal protection of the laws in violation of the Fourteenth Amendment to the Federal Constitution, in that it discriminated against employees of purely intrastate carriers. 20 Where it was contended that parts of the act were unconstitu- tional because not sufficiently embraced in the title as required by the state constitution which provides: "No bill shall em- brace more than one subject and that shall be expressed in the title," the court said: "As the Constitution has not indicated the degree of particularity necessary to express in its title the subject of an act, the courts should not embarrass legislation by technical interpretations based upon mere form of phraseology. 20. Archibald v. Northern Pac. R. Co. et al., 108 Wash. 97, 183 Pac. 95, 4 W. C. L. J. 663; Greene v. Caldwell, 170 Ky. 571, 186 S. W. 648, 12 N. C. C. A. 520; Sayles v. Foley, 38 R. I. 484, 96 Atl. 340, 12 N. C. C. A. 949; Wangler Boiler und Sheet Metal Co. v. Indus. Comm., 111. , 122 N. E. 366, 3 W. C. L. J. 617. 38 ELK< TIMN. i;i,ii: minor employees, of legal working age, sui juris. 55 Other acts require the employer to deal with the minor and the latter with the employer, through the parents or guardian. "The act pro- vides for no suit by a parent for compensation per quod ; and we held at the last term that the parent could not recover at commcn 53. Dickens v. Carr. 84 Mo. 658; Herkey v. Agar Mfg. Co., 90 Misc. 457, 153 N. Y. Supp. 369; Green v. Caldwell, 170 Ky. 571, 180 S. W. 648. 54. Chicago R. R. & P. Ry. Co. v. Fuller, 105 Kan. 608, (1919), 186 Pac. 127; Scott v. Nashville Bridge Co., - - Tenn. , (1920), 223 S. W. 844, 6 W. C. L. J. 580. 55. California, Colorado, Illinois, Maryland. Michigan, Minnesota, Nebraska, Kentucky, Ohio, Oregon, Rhode Island, Washington. The Alabama Act specifically states that it applies to minors even though employed contrary to laws regulating minors. 75 14 WORKMEN'S COMPENSATION LAWS. law. Buonfiglio v. R. Neuman & Co., 107 Atl. 285. The result is that the parent is barred entirely of recovery per quod unless he or she takes the statutory method of rejecting the elective compensation scheme, or receives notice from the employer, as in Brost v. Whitall-Tatum Co., 89 N. J. Law, 531, 99 Atl. 315, L. R. A. 1917 D, 71, a suit at common Law by the employee. Whether or not the contract of employment is made, or contem- plated by the statute as made by the infant herself, or as agent for the parent, or directly by the parent, is quite immaterial. If there is a valid employment of an infant over 14 years (see Hetzel v. Wesson Piston Ring Co., 89 N. J. Law, 201, 98 Atl. 306, L. R. A. 1917D, 75), and no agreement or notice to make section 2 inoperative, then in case of injury the whole theory of the act is that the compensation shall be paid to, and sued for by, the employee, or dependents, or beneficiaries. These are the words of the statute itself. Nowhere therein is a parent, qua parent, recognized as entitled to any of the prescribed compensation. Such being the case, the alleged injustice of confining the infant em- ployee to recovery under the act disappears. ' ' 56 "The right of an infant to maintain an action for injuries received, for which the master may be liable, is subject to statu- tory regulation, and this statute clearly provides that any em- ployee, which includes infants, may maintain an action under section 2, unless notice be given to the employer by the parent or guardian that any right of action that may arise, based upon injuries suffered in that service, is not limited to the compensation provided in the statute. ' ' " The New Jersey Act is presumed to apply to the employment of minors unless a notice of the election to reject the act has been given to the parents of the minor. 58 56. Hartman v. Unexcelled Mfg. Co., 93 N. J. L. 418, (1919), 108 Atl. 357, 5 W. C. L. J. 422; Buonfiglio v. Neumann & Co. 107 Atl. 285, 4 W. C. L. J. 521. 57. Hoey v. Superior Laundry Co., 85 N. J. L. 119, 88 Atl. 823, 15 N. C. C. A. 721. 158. Troth v. Millville Bottle Works, 89 N. J. L. 219, 98 Atl. 43^ 15 N. C. C. A. 722, Aff'g 86 N. J. L, 558, 9 N. C. C. A. 855, 91 Atl. 1031; Brost v. Wbitall-Tatum Co., 89 N. J. L. 531, L. R. A. 1917D, 71, 99 Atl. 315, 15 N. C. C. A. 723. 76 ELECTION, REJECTION A CONSTITUTIONALITY OP ACTS. 14 It has been held in some jurisdictions that the act does not apply to minors employed in violation of the law, requiring them to be of the legal working age fixed by the general statutes of the state for the reason that they cannot then be considered legally employees. 59 And the payments of premiums into the state Com- pensation fund is no protection against such unlawful employ- ment. 80 It has also been held by one of the New York appellate court divisions that the Workmen's Compensation Act is not a bar to a common-law action for damages by an infant employed in vio- lation of the New York Penal Law, section 1275, and the Labor Law section 81, requiring machinery to be properly guarded.' 1 So it is held under the Iowa Act that the illegal employment of a girl under 14 years of age will not limit the employer's lia- bility to compensation fixed by the compensation act to which the 69. Pettee v. Noyes, 133 Minn. 109, 157 N. W. 995; Westerlund v. Kettle River Co., 137 Minn. 24, 162 N. W. 684; Stetz v. Mayer Boot & Shoe Co., 163 Wis. 151. 156 N. W. 971, 15 N. C. C. A. 730; Hetzel v. Wasson Piston Ring Co., 89 N. J. L. 201, 98 Atl. 306, L. R. A. 1917D, 75; Moll v. Industrial Comm. et al. (111.) (1919), 123 N. E. 562, 4 W. C. L. J. 369; Messmer v. Industrial Board, 282 111. 562, 118 N. E. 993, 1 W. C. L. J. 956; Roszek v. Bauerle & Stark Co., 282 111. 557, 118 N. E. 991, 1 W. C. L. J. 952; Lostuttur v. Brown Shoe Co., 203 111. App. 518; Kruczkowski v. Polonia Pub. Co. (Mich.), 168 N. W. 932, 2 W. C. L. J. 913; Acklin Stamping Co. v. Kutz (Ohio) 120 N. E. 229, 2 W. C. L. J. 833; Hillstead v. Ind. Ins. Comm., 80 Wash. 426, 141 Pac. 913, Ann. Gas. 1916B, 789; Secklich v. Harris Emery Co., -- la. , 169 N. W. 325, 3 W. C. L. J. 126; Adkins v. Hope; Waterman Lumber Co. v. Beatty, Tex. Civ. App. , 204 S. W. 448, 2 W. C. L. J. 706; New Albany Box & Basket Co. v. Davidson, Ind. , (1920), 125 N. E. 904, 5 W. C. L. J. 509; Lesko v. Liondale Bleach Dye & Print Works, 93 N. J. L. 4, (1919), 107 Atl. 275, 4 W. C. L. J. 525; Freys Guardian v. Gamble Bros. Ky. App. - - (1920) 221 S. W. 870, 6 W. C. L. J. 171; Lincoln v. National Tube Co., Pa. , (1920), 112 Atl. 73; Mangus v. Proctor Eagle Coal Co., W. Va. , (1920), 105 S. E. 903; Galloway v. Lbrmeii's Indem. Exchange, Tex. Civ. App. , (1921), 221 S. W. 536. 60. Morrison v. Smith Pocohontas Coal Co.. W. Va. , (1921). 106 S. E. 448. 61. Wolff v. Pulton Bag & Cotton Mills, - - N. Y. App. , 173 N. Y. Supp. 75, 3 W. C. L. J. 354. 77 14 WORKMEN'S COMPENSATION LAWS. child was incapable of giving consent and the misstatement of the girl as to her age is immaterial since the prohibition against such employment is absolute. 62 It has also been held that illegality of the employment is no defense to a claim for compensation under the act, even though the employee be not of legal working age or if he be of that age but engaged in employment prohibited to minors. 63 "Section 2447, Rem. Code, hereinbefore quoted, makes it a misdemeanor for an employer to employ 'any male child under the age of fourteen years or any female child under the age of sixteen years at any labor' in any factory without the written permit of a judge of a superior court of the county wherein such child may live. This statute does not make it unlawful for a child under the prohibited age to work and imposes no penalty upon the child when it does work. It follows that the child neither gains nor loses any rights by such employment, even though the employer may be penalized. This section plainly recognizes that a child less than the maximum age for the employment of a minor is a workman within the meaning of that act. It follows that whether the child is employed either lawfully or unlawfully such child is entitled to all the privileges of the Workingmen's Com- pensation Act and must seek its remedies under the terms of that act." 64 The courts of Wisconsin make a distinction as to these two classes of violation of the general statute laws in view of the pro- 62. Secklich v. Harris Emery Co., - - Iowa , 169 N. W. 325, 3 W. C. L. J. 126; same parties, 160 N. W. 327, 17 N. C. C. A. 611. In re Stoner Ind. , (1921), 128 N. E. 938, 7 W. C. L. J. 198; Mary- Land Gas. Co. v. Indus. Comm., - - Cal. , 178 Pac. 858, 3 W. C. L. J. 563. 63. Uhl v. Hartwood Club, 177 App. Div. 41, 163 N. Y. S. 764, affirmed 221 N. Y. 588, 116 N. E. 1000; Stanton v. Masterson, 2 Cal. I. A. C. Dec. 707; See Waterman Lumber Co., v. Beatty (Civ. App.) 204 S. W. 448, 2 W. C. L. J. 706; Robilotto v. Bartholdi Realty Co., 171 N. Y. Supp. 328, 3 W. C. L. J. 59; Ide v. Fuel & Timmins, 179 N. Y. App. Div. 567, 15 N. C. C. A. 731, 166 N. Y. S. 858; But see to the contrary Wolff v. Fulton Bag & Cotton Mills 185 N. Y. App. Div. 436, 173 N. Y. 375, 17 N. C. C. A. 618, 3 W. C. L. J. 354. 64. Rasi v. Howard Mfg. Co., Wash. ,(1920), 187 Pac. 327, 5 W. C. L. J. 632. 78 ELECTION, REJECTION A CONSTITUTIONALITY OP ACTS. 14 vision in its compensation act making it applicable to minors, "who are legally permitted to work under the laws of this State," holding that minor employees under the legal age are not em- ployees within the meaning of the act, but that minor employees in prohibited employments are employees within the meaning of the act. 05 Though in 1917 the Wisconsin Act was amended to give the minor treble compensation in either case. There must be proof of contractual relation and no rejection before a minor employee can be regarded as being under the Com- pensation Act, 08 though it has been held to be immaterial that the contract is voidable, 67 or that the employee misrepresented his age. 88 Where an employer has a certificate of age issued from a school committee, and complying in all respects with the statutory pro- visions in this regard, he is not obliged to investigate the accuracy of the certificate and is entitled to rely upon it as rendering the employment of the child legal, and the child is sui juris as an employee. 69 It has been held that a minor's misrepresentation as to his age may work to his detriment. As in a common-law action for 65. Lutz v. Wilmanns Bros. Co., 166 Wis. 210, 164 N. W. 1002, 15 N. C. C. A. 731; Foth v. Macomber & Wbyte Rope Co., 161 Wis. 549, 154 N. W. 369; Milwaukee v. Miller, 154 Wis. 652, 144 N. W. 188, L. R. A. 1916A, 1 Ann. Cas. 1915B, 847; Menominee Bay Shore Lumber Co.v. Ind. Comm., 162, Wis. 151, 156 N. W. 151; Rhodes v. J. B. B. Coal Co. 79 W. Va. 71, 90 S. E. 796. 66. Hillestad v. Industrial Ins. Comm., 80 Wash. 426, 141 Pac. 913, Ann. Cas. 1916B, 789, rejection, Brost v. Whitall-Tatum Co., 99 Atl. 315; Adkins v. Hope Engineering Co., 81 W. Va. 449, 94 S. E. 506, 15 N. C. C. A. 724. 67. Hoey v. Superior Laundry Co., 85 N. J. L. , 88 Atl. 823. 1919; Young v. Sterling Leather Works, 91 N. J. L. 289. 68. Havey v. Erie R. Co., 87 N. J. L. 444, 88 N. J. L. 684; Sturgis & Burn Mfg. Co. v. Beauchamps, 34 Sup. Ct. Reporter 60 (Dec. 1, 1913); Secklich v. Harris-Emery Co., 184 la. 1025, 169 N. W. 325, 3 W. C. L. J. 126; But see Norfolk & W. Ry. Co., v. Momlurant's Admr., 59 S. E. 1091; 107 Va. 515, 15 L. R. A. (N. S.) 443n; Stetz v. Mayor Boot & Shoe Co., 163 Wis. 151, 156 N. W. 971, 15.N. C. C. A. 729. 69. Taglinete v. Sydney Worsted Co., R. I. .(1919) 105 Atl. 641, 3 W. C. L. J. 662. Oregon Act amended 1921. 6627. 79 14 WORKMEN'S COMPENSATION LAWS. damages sustained by a minor, who was illegally employed the defense of contributory negligence is open to the employer when he can show by a preponderance of the evidence that there was fraud or misrepresentation as to his age on the part of the minor employee. 70 "Does the Act in question comprehend employees over 14, though under 21 years of age, when lawfully employed in mines? Unless invalid we answer unhesitatingly that it does comprehend and cover infant employees lawfully employed. Certainly they are not by the terms of the statute excluded from its provisions. The statute was enacted for the benefit both of employers and employees. To say that the act does not cover the employment of infants would be to deprive them of very material benefits, and of the compensation fund created by the act. If brought under the act, they are protected against their contributory negligence, the negligence of fellow-servants, and the defense of assumption of risk, and the burden of doubtful and expensive litigation re- quired before the statute would be removed. Disability of infancy being created by statute may certainly be removed by statute. A statute which makes it lawful to employ an infant over 14 years of age in a coal mine should certainly receive a construction that will authorize him to make a lawful contract of employment, to bind himself thereby, and to participate in all the benefits which would accrue to him, under a statute made for the protec- tion of employees. 71 In construing the Massachusetts Act as it relates to minors the Supreme Judicial Court of Massachusetts said: "The definition does not in terms exclude minors, but on the contrary includes 'every person in the service of another under any contract of hire,' with the exception of certain persons spe- cifically described. Children and minors are expressly recogniz- ed in the act in part, 2, Sec. 7, cl. C, as amended by St. 1914, c. 70. Acklin Stamping Co. v. Kutz, 78 Ohio St. 61, 120 N. E. 229, 17 N. C. C. A. 607. 71. Rhodes v. J. B. B. Coal Co., 79 W. Va. 71, 90 S. E. 796, 15 N. C. C. A. 720; Radtke Bros, et al. v. Indus. Comm., Wis. , 183 N. W. 168, (1921). 80 ELECTION, REJECTION A CONSTITUTIONALITY OP ACTS. 14 708, Sec. 3. Under part 2, Sec. 22, as amended by St. 1914, C. 708, Sec. 8, the Industrial Accident Board is authorized in its discretion to provide for the payment of a lump sum to a minor who has received permanently disabling injuries. See also St. 1915, c. 236. If a minor is not within the terms of the act and therefore not bound by them, it would follow that the insurer would be relieved from making payments thereunder to a minor employee if the contract of hire was made before he became of full age. To roach such a conclusion would result in great hard- ship. It would not be in accord with the language of the act or in harmony with its humanitarian purposes which were to cure the defects of previously existing remedies and to provide ade- quate and just protection to employees against injuries, and relief in case of accidents. ' ' Under the California Act "it shall be conclusively presumed that such employee was not guilty of contributory negligence in any case where the violation of any statute enacted for the safety of employees contributed to such employee's injury." Thus, where a minor's contract of employment included both prohib- ited employment as well as legal employment and he was killed while performing that portion of his labors which was not pro- hibited it was held that the employer was not precluded from pleading contribuory negligence. 78 Under the Massachusetts act a parent's right of action for in- juries to a minor child is not affected, although the child has accepted the act and received compensation thereunder for his injuries. 74 It has also been held that the fact that a minor was legally employed, but afterwards placed at forbidden work by a vice principal, would not bar him from his common law rights. 76 72. Gilbert v. Wire Goods Co., (1919) 233 Mass. 570, 124 N. E. 479, 4 W. C. L. J. 714. 73. Wiliams v. Southern Pac. R. Co., 173 Cal. 525. 160 Pac. 660, 15 N. C. C. A. 733. 74. King v. Viscoloid Co., 219 Mass. 420, 106 N. E. 988, 7 N. C. C. A. 254. 75. Gutmanu v. Anderson. 142 Minn. 141, (1919), 171 N. W. 303, 3 W. C. L. J. 765; Kruczkowski v. Polonia Pub. Co., 203 Mich. 213, 168 N. W. 932, 17 N. C. C. A. 611. 81 W. C. 14 WORKMEN'S COMPENSATION LAWS. In a California case the court said: "If the employee was a minor under the terms of the Workmen's Compensation Act, at the time of the first application and hearing, since she was not represented therein by a guardian, she had the right, incident to minority, of disaffirming the award of the commission rendered in such proceeding within a reasonable time after reaching the age of majority." 76 Under the Kentucky statute the failure of an employer to furnish safety devices required by statute does not entitle a guardian or the injured minor employee to sue at common law, for damages for this election applies only where the minor is employed in willful and known violation of law, and such failure does not constitute employment in violation of law. 77 "Where a minor employed in violation of the law involuntarily appears before the Kentucky Compensation Board he is not thereby estopped from the prosecution of his common law action for damages. 18 Under the Indiana Act when an employer fails to secure an affidavit of age, as in the case of a 'young person,' that is a per- son between the ages of 14 and 18 years, such person is held not lawfully employel and therefore not an employee entitled to the benefits of the act. 79 In a California case where a minor was employed without an age and schooling certificate required by the child labor law, the court said : ' ' On the whole, therefore, the contract of employment, in violation of the child labor law was illegal and not included in the policy of insurance (Mt. Vernon Co. v. Frankfort Co., Ill Md. 561, 75 Atl. 105, 134 Am. St. Rep. 636), and, there being no waiver or estoppel, the petitioner is not liable under the policy for the accident in question. ' ' 80 76. Gounillou v. Indus. A. C. of Gal., Cal. , 193 Pac. 937. 77. Freys Guardian v. Gamble Bros., - - Ky. App. , (1920), 221 S. W. 870, 6 W. C. L. J. 171 78. Louisville Woolen Mills v. Kindgen, Ky. App. , 231 S. W. 202. 79. In re Stoner, Ind. App. , (1920), 128 N. E. 938, 7 W. C. L. J. 198. 80. Maryland Gas Co. v. Indus. Comm., Cal. , 178 Pac. 858, 3 W. C. L. J, 563 82 ELECTION, REJECTION & CONSTITUTIONALITY OF ACTS. 15 A minor child working for his father is not an employee with- in the meaning of the California Act, where there has not been an actual emancipation of the child.* 1 15. Election to reject and action for damages. In actions for damages at common law, when from the language of the act, the employer is presumed to come under it, the burden is on the employee to allege and establish the employer's rejection of the act or the fact which prevents ^he application of the Workmen's Compensation Act to the employee. 82 As for example under some acts the employee may allege and prove that his average annual earnings exceed the stated amount exempted by the act, under others that he has rejected the act, that his employer employs regularly less than three or five employees, that he is a farm hand, casual employee, family chauffeur, domestic servant, outworker, official of a political subdivision, or that his employer has failed to insure his risk, as required by the Act, 83 the pleading and proof of any one of which facts would entitle the employee to sue for damages at common law. 8 * But where an employer is 81. Aetna Life Ins. Co. v. Indus. Ace. Comm., Cal. , 166 Pac. 15, A 1 W. C. L. J. 111. 82. Reynolds v. Chicago City R. R. Co., 287 111. 124, (1919), 122 N. E. 371, 3 W. C. L. J. 608; Beveridge v. 111. Fuel Co., 283 111. 31, 119 N. E. 46, 17 N. C. C. A. 463; Barnes v. Illinois Fuel Co., 283 111. 173, 119 N. E. 48, 17 N. C. C. A. 476. Palmieri v. Illinois Third Vein Coal Co., 208 111. App. 405, 17 N. C. C. A. 476; Synkus v. Big Muddy Coal & Iron Co., 190 111. App. 602; See 31 N. E. 46, Barnes v. Beamboch Piano Co., 101 Misc. Rep. 669, 167 N. Y. S. 933, 1 W. C. L. J. 703; Louis v. Smith-McCormick Const. Co., 80 W. Va. 59, 92 S. E. 249. Contra, Mitchell v. Swan wood Coal Co., (la.) 166 N. W. 391, 1 W. C. L. J. f 602; Balen v. Colfax Consolidated Coal Co., 183 la. 1198, 168 N. W. 246, 17 N. C. C. A. 512. See also Waterman Lumber Co. v. Beatty (Tex. Civ. App.) 204 S. W. 448, 2 W. C. L. J. 706; Bishop v. Chicago Rys. Co., 290 111. 194, (1919), 124 N. E. 837; 5 W. C. L. J. 175; Baggs v. Standard Oil Co. of N. Y., 180 N. Y. S. 560, 5 W. C. L. J. 740; Ruddy v. Morse Dry Dock & Repair Co., 176 N. Y. 731, 107 Misc. 109. (1919), 4 W. C. L. J. 448; Krisman v. Johnson C.iy & Big Muddy Coal & Mining Co., 190 111. App. 612, 17 N. C. C. A. 52Y; Nilsen v. American Bridge Co., 221 N. Y. 12, 116 N. E. 383, 17 N. C. C. A. 479. 83. Gayton v. Borsoisky, Mass. , 119 N. E. 831, 17 N. C. C. A. 517. 84. Talge Mahoguuy Co. v. Burrows, Ind. , 130 N. E. 867. 83 15 WORKMEN'S COMPENSATION LAWS. not presumed to come under the act the burden of proving that he has assented to come under the act is upon the employer. 85 Though where the evidence shows that the employee first prosecuted a claim for compensation under the act to final adjudication, the question of whether the employer had notified the employee of his election to come under the act is immaterial in an action at law against the employer by the employee. 86 It has also been held in some jurisdictions that the plaintiff employee need not allege the employer's rejection of the Act in his petition in an action for damages. 87 In Illinois under its Act of 1911, Sec. 3, it has been held that the employee must allege and prove that an independent violation of the factory Act was by the defendant's elective officer in order that the employee might recover damages at common law. As a general rule it is not necessary for an employee to allege that he had rejected the act, if! he has alleged the employer's rejection, which of itself, under most elective acts excludes the employee from the benefits of the act. 88 Should the employee plead and prove that he had rejected the act, prior to the acci- dental injury, for which compensation is claimed and the employer pleads and proves that he has accepted the act, then the latter may avail himself of the common-law defenses. The employee must also allege and prove negligence of the employer, his or its officers, agents or employees, 90 before he can recover. 91 But 85. Nadeau v. Caribou Water, Light & Power Co., 118 Me. 325, (1919), 108 Atl. 190, 5 W. C. L. J. 238; Basso v. John T. Clark & Son, 177 N. Y. S. 484, 108 Misc. 78 (1919), 4 W. C. L. J. 530; Garvin v. "Western Coop- erage Co., 94 Oregon 487 (1919), 184 Pac. Rep. 555, 4 W. C. L. J. 738. 86. Texas Refining Co. v. Alexander, Tex. Civ. App. - - 202 S. W. 131, 17 N. C. C. A. 471. 87. Nash v. Minneapolis and St. Louis Ry. Co., 141 Minn. 148, 169 N. W. 540, 3 W. C. L. J. 157; Salvuca v. Ryan & Reilly Co., 129 Md. 235, 98 Atl. 675, 17 N. C. C. A. 477 ; Chamberlain v. Luckenheimer Co., 25 Ohio S. & C. PI. Dec. 368, 8 N. C. C. A. 670; Gorrell v. Battelle, 93 Kan. 370, 144 Pac. 244, 7 N. C. C. A., 48. . 88. Favro v. Superior Coal Co., 188 111. App. 203; Dietz v. Big Muddy Coal Co., 263 111. 480, 5 N. C. C. A. 419. 90. Watts v. Ohio Elect. R. Co., 78 W. Va. 144, 83 S. E. 659. 91. Spivok v. Independent Sash & Door Co., 173 Cal. 438, 160 Pac. 565; 84 ELECTION, REJECTION ft CONSTITUTIONALITY OP ACTS. 15 under the Iowa Act, section 2477-M, Subdiv. C(4), Code Supple- ment 1913, negligence on the part of the employer is presumed if it is shown that the accident arose out of and in the course of the employment, 82 and negligence need not be pleaded. 98 This amounts to the establishment of something more than a statutory res ipsa loquitur doctrine, the constitutionality of which appears doubtful as depriving one of his property without due process of law. To compare it with criminal law it is in the nature of a presumption of guilt. Evidence which tends only to establish assumption of risk or contributory negligence has no place or bearing in an action for damages against a non assenting Iowa employer unless it tends to show willful and intentional negligence on the part of the employee. 94 In an action for damages, at common law, against the employer by an employee, his or her dependents, heirs, legal representatives, or next of kin the employer may as a general rule set up as a defense, the fact that the deceased employee was covered by the act r 95 or that he has made a claim for compensation under the Stornelli v. Duluth S. S. & A. Ry. Co., 193 Mich. 674, 160 N. Y. 415; Price v. Clover Leaf Coal Mining Co., 188 111. App. 27; Salus v. Great Northern R. Co., 157 Wis. 546, 147 N. Y. 1070; Henshaw v. Boston etc., R. Co., 222 Mass. 459, 111 N. E. 172; Walsh v. Turner Center Dairying Ass'n, 223 Mass. 386, 111 N. E. 889; Cross v. Boston & M. R. R. Co., 223 Mass. 144, 111 N. E. 676; Lindenbauer v. Weiners, 94 Misc. 612, 159 Supp. 987; West Kentucky Coal. Co. v. Smithers, Ky. App. , 211 S. W. 580, 4 W. C. L. J. 198; Hunter v. Colfax Cons. Coal Co., 175 la. 245, 157 N. W. 145, L. R. A. 1917D, 15n, Ann. Cas. 1917E, 803; Watts v. Ohio Elect. R. Co., 78 W. Va. 144, 88 S.E.659; Balen v. Colfax Coal Co., 183 la., 1198, 168 N. W. 246, 2 W. C. L. J. 621. Cannot recover if accident Is due to servant's con- tributory negligence if the employer is permitted to set up that de- fense Brown v. Lemon Cove Ditch Co., 36 Cal. App. 94, 171 Pac. 705, 1 W. C. L. J. 915. 92. Mitchell v. Mystic Coal Co., la. , 179 N. W. 428, 6 W. C. L. J. 657; Mitchell v. Swanwood Coal Co., 182 la. 1001, 166 N. W. 391. 93. Mitchell v. Phillips Mining Co., 181 la. 600. 165 N. W. 108, 1 W. C. L. J. 190; Mitchell v. Des Moines Coal Co., la. . 165 N. W. 113, 1 W. C. L. J. 200. 94. Butkovitch v. Centerville Block Coal Co., Iowa , (1920), 177 N. W. 479, 6 W. C. L. J. 35. 95. Zukas v. Appletou Mfg. Co., 297 111. 171, 116 N. E. 810. 85 15 WORKMEN'S COMPENSATION LAWS. act, or has in that manner exercised the option frequently given him when the employer has defaulted as to some duty required of him by the act, 96 which defenses release the employer from liability for damages. But this contention will not avail others than the employer and in an action against third parties election of the employe, to reject need not be alleged nor proved by the claimant. 97 The employer's rejection of the Act need not be alleged in every count. 98 It is held in Arizona that the Compensation Act does not restrict or limit the right of a personal representative to sue for wrongful death under paragraph 3372 Eev. Statutes, Arizona 1913. 99 In an action at common law for injuries caused by the negli- gence of a non-assenting employer, it was incumbent upon the plaintiff to prove, as he had alleged, that he was in the exercise of due care at the time of the injury. Defendant's admission during the course of the trial that he was employing more than five workmen, and that he was not an assenting employer did not relieve the plaintiff from the necessity of proving his allegation ; the admission as to the number of workmen being immaterial as there was no allegation as to that fact, and in the absence of an appropriate allegation by way of a brief statement, it is assumed that the defendant is in Maine a non-assenting employer. 1 96. Brabon v. Gladwin Light etc. Co., 201 Mich. 697, 167 N. W. 1024, 2 W. C. L. J. 302; Arkansas Valley Ry. Light & Power Co. v. Ballinger, Ark. , (1919), 178 Pac. 566, 3 W. C. L. J. 581. 97. Voce v. Central Illinois Public Service Co., 286 111. 519, (1919) 122 N. E. 134, 3 W. C. L. J. 613. 98. Hughes v. Eldorado Coal & Mining Co., 197 111. App. 259. 99. Inspiration Consol. Copper Co. v. Conwell, Ariz. , 190 Pac. 88, 6 W. C. L. J. 249; Behringers Admix, etc., v. Inspiration Copper Co., 17 Ariz. 232, 149 Pac. 1065. 1. Nicholas v. Folsom, Me. , (1920), 110 Atl. 68, 6 W. C. L. J. 182; Nadeau v. Caribou Light and Power Co., 118 Me. 325, 108 Atl. 190. 86 CHAPTER III. WHO COMES UNDER THE ACT. Sec. 16. General. 17. Every Person, Corporation, Association, etc., As Employers. 18. Every Person, Corporation, Association, etc., As Employers (Cont.) 19. Employees Generally. 20. Who are Employees. 21. Who Are Employees (Cont'd). 22. Employment Through Agents And Assistants. 23. Employee Doing Incidental Work. 24. Loaned Employees. 25. Partnership As Employer. 26. Employers of Teamsters. 27. Employer Of Less Than Stated Number Of Employees. 28. Regularly Employed And Usual Business Of Employer. 29. Casual Employments And Regularly Employed In Unusual Business Of Employer. 30. Employments Not Casual. 31. Farm Labor. 32. Employments Held Not To Be Farm Labor. 33. Domestic Servants. 34. Persons Whose Average Annual Earnings Exceed A Stated Amount, Excluded. 35. Officials Of Political Subdivisions. 36. Employees Of The State And Its Political Subdivisions. 37. Independent Contractors. 38. Workmen Held Independent Contractors Not Employees. 39. Workmen Held Employees And Not Independent Contractors. 40. Owner of Premises As Employer Of The Employees Of His Con- tractors And Subcontractors. 41. On, Or About the Premises. 42. Liability of Owner Or Lessor To Employees Of Lessee. 43. Dual Employers, Employments, And Business Enterprises. 44. Subrogation And Third Persons As Affected By The Acts. 45. Subrogation And Third Persons As Affected By The Acts. (Cont'd). 46. Cases Exclusively Covered By Federal 47. Extra Territorial Application Of Acts. 87 16 WORKMEN'S COMPENSATION LAWS. 16. General. The following provisions with varying slight modifications are typical of most American Compensation Acts. "The word 'employer' as used in this act shall be construed to mean every person, partnership, association, corporation, trustee, receiver, and every other person, including any person or corporation operating a railroad, and any public service corpora- tion, using the service of another for pay ." "The word 'employee' as used in this act shall be construed to mean every person in the service of any employer as defined in this act, under any contract of hire, express or implied, oral or written ." In the great majority of claims for compensation, no question arises as to whether the required contractual relation of employer and employee exists. There are, however, many cases where the question is difficult of determination and other cases where it is purposely made so by persons seeking to evade liability under the act. 1 For example, a workman may be loaned by one employ- er to another, an owner of teams employs drivers and rents the teams and drivers, sometimes including himself, for a stipulated sum for both, frequently a series of contracts and sub contracts clouds the question. Again, two or more employers between whom contractual relations exist may be interested in the same enterprise, making it difficult to say whether one is an employee of a particular employer or of all of them. A shareholder and vice president of a corporation who worked with the regular workmen, though at the same time acting as foreman, has claim- ed compensation as an employee and recovered ; 2 while it has been held that the president and majority stockholder of a manufacturing corporation could not obtain compensation for injuries received while engaged in manual labor for the corporation. 8 It would be impossible to formulate any gen- 1. Mezansky v. Sissa, 1 Conn. Comp. Dec. 430. 2. Beckman v. Oelerich & Son, 174 App. Div. 353, 160 N. Y. S. 791; Benjamin v. Rorenberg Bros., 223 N. Y. 569, 119 N. B. 1030, 18 N. C. C. A. 906, Affg 180 N. Y. App. Div. 234, 167 N. Y. S. 655, 1 W. C. L. J. 670. 3. Bowne v. Bowne Co., 221 N. Y. 28, 116 N. E., reversing the order 176 App. Div. 131, 162 N. Y. S. 244. But see Kennedy v. Kennedy 88 WHO COMES UNDER THE ACT. 16 eral rule on these diverse cases that would be of much assist- ance. More can no doubt be acomplished by a study of the rulings and reasons of courts and commissions in the decided caes, which will facilitate reasoning by analogy to the logical ruling to be applied to the facts of the case at hand. In an Iowa case the court said of the terms "employer" and "em- ployment" "They are not of the technical language of the law or of any science or pursuit and must, therefore be construed according to the context and the approved usage of the lan- guage."* The construction of the terms employer and employee, as above set out, gives the general suggestion that a contract of hire, written or oral, express or implied, must be found to exist between the person claiming compensation and the one against whom the claim for compensation is made, otherwise the latter is not liable to pay the compensation provided under the act. 5 As to when or where such contract exists is sometimes difficult of determina- tion and much conflict is found in the decisions. The burden of establishing the existence of the contract or the relationship of employer in reference to some matter outside the risks assumed titled to compensation. 6 Mfg. etc. Co., 177 App. Div. 56, 163 N. Y. S. 944, reargument granted in 178 App. Div. 946, 165 N. Y. S. 1094; Howard v. Howard, 221 N. Y. 605, 117 N. E. 1072, 15 N. C. C. A. 461. 4. The State v. Foster, 37 la. 404. 5. Lenk v. Kansas & T. Coal Co., 80 Mo. App. 374; Rhatigan v. Brooklyn Union Gas Co., 136 App. Div. 727; 121 Supp. 481; Kimball v. Cushman, 103 Mass. 194; Wood v. Cobb, 3 Allen, 58; United States Board and Paper Co. v. Landers, 47 Ind. App. 315, 93 N. E. 232; Sing- er Mfg. Co. v. Rahn. 132 U. S. 518; Sibley v. State, 89 Conn 682, 96 Atl. 161, L. R. A. 1916C, 1087; Hillestad v. State Industrial Ins. Com., 80 Wash. 426, 141 Pac. 913, Ann. Cas. 1916B, 789; Kemp v. Lewis, 3 K. B. 543, 7 B. W. C. C. 422 C. A.; Wray v. Taylor, 109 L. T. Rep. N. S. 120; Bobbey v. Crosbie, 6 B. W. C. C. 592 C. A.; In re Cox, 225 Mass. 220, 114 N. E. 281; Pierson v. Rapid Transit Co., 102 Misc. Rep. 130, 168 N. Y. S 425, 1 W. C. L. J. 705; Acklin Stamping Co. v. Kutz (Ohio), 120 N. E. 229, 2 W. C. L. J. 883; In re Connerford, 247 Mass. 571, 113 N. E. 460; Nissen Transfer & Storage Co. v. Miller, Ind. , 125 N. E. 652, 5 W. C. L. J. 519; Matter of Fitzgerald, 21 Misc. 226. 6. Zeitlow v. Smock, Ind. App.. 117 N. E. 665; Rockford City Tr. Co. v. Industrial Comm., 111., 129 N. E. 135. 89 17 WORKMEN'S COMPENSATION LAWS. 17. Every Person, Corporation, Association, etc., as Employ, ers. It has been held that the test by which to determine whether a person is an employer of another is to ascertain whether, at the time the injury was suffered, the other was subject to such person 's orders and control and was liable to be discharged for disobedience of orders or misconduct. 7 It appears however from the decisions that this rule is not always uniformly applied. It has been held that a caddie for a golf club, paid by the member whom he serves, is an employee of the club and not of the member he might be serving at the time of the accident ; 8 that an infant employer can- not evade the responsibilities of the act by reason of his infancy; 9 that the relation of employer and employee does not depend upon the legality of the contract of employment; 10 that an employee may compel the appointment of an administrator to take the place of the deceased employer from whom the employee was entitled to compensation; 11 that an owner of a chartered vessel and not the charterer is the employer of the captain; 12 that a person who has made colorable transfer of his business and not the transferee is the employer ; 13 that the owner of a garage is not the employer of another's chauffeur Avith whom he has an agreement to pay 7. United States Board & Paper Co. v. Landers, 47 Ind. App. 315, 93 N. E. 232; Tuttle v. Embury Martin Lumber Co., 192 Mich. 385, 158 N. W. 875; Shepard v. Jacobs, 204 Mass. 110, 90 N. E. 392, 26 L. R. A. (N. S.) 442, 134 Am. St. Rep. 648. But see Pollard v. Goole & Hull Steam Towing Co. Ltd., 3 B. W. C. C. 366, C. A.; State ex rel. Vir- ginia & Rainy Lake Co. v. District Court, 120 Minn. 43, 150 N. W. 211; Mason v. Western Metal Co., 1 Cal. I. A. C. Dec. 284; Smith v. Eich- elberger, 175 111. App. 231. Washington Act, 1921 6604-3. 8. Harris v Claremont Country Club, 2 Cal. Ind. Com. 972; Clare- mont Country Club v. Indus. Ace. Com., 174 Cal. 395, 163 Pac. 209, 15 N. C. C. A. 448; Chisolm Chase, Mass. , 1921, 131 N. E. 161. 9. Re Smith, 17 West L. Rep. (Can.) 650. 10. Boyle v. A. Cheney Piano Action Co., N. Y. App. , 184 Supp. 374, 7 W. C. L. J. 93. 11. L. R. A. 1916A (note) 113, Re Bryne, (1910 Prob.), 44 Ir. Law Times 98, 3 B. W. C. C. 591. Who are employers, see L. R. A. 1916A, note p. 13; Also L. R. A. 1916A, note p. 245. 12. Norman v. Empire Literage & Wrecking Co., 2 N. Y. St. Dep. Rep. 480; Mackinnon v. Miller, (1909), 46 Scotch L. R. 299, 2 B. W. C. C. 64, Ct. of Sess. 13. McCormick v. Sander, 37 N. J. Law J. 56. 90 WHO COMES UNDER THE ACT. 17 him a commission on any sales of automobiles he helps to effect where the chauffeur is injured while cranking a car which the garage owner was at the time trying to sell to a prospective buyer; 14 that a contractor who assigned his contract but hired the employees and superintended the work was the real" employer ; 18 that several different persons who employ a watchman to watch their respective premises are joint employers ; 16 and also that only the employer on whose premises he was injured is liable to pay compensation ; 1T that an employee may elect which of two em- ployers to proceed against for compensation; 18 that where a janitor, employed by a public school and others, was injured while at work in the school, the latter was liable for compensation; 19 that employers jointly interested are severally liable to their re- spective employees 20 but where it is uncertain which of two or more interested in a joint enterprise is the employer, all are liable; 21 that an employee who had been instructed by an officer of the company to do certain work about the home of an officer and was killed in such private work the company was liable for compensation : 22 that six firms employing the same night watch- 14. Lane v. Herrick, 3 Cal. Ind. Ace. Com. 29. 15. Schuman v. Employer's Liability Assurance Corp., 2 Mass. Ind. Ace. Bd. 599; Kramer v. Schalke,.The Bulletin, N. Y. Vol. 1, No. 8, p. 8. 16. Curran v. Newark Gear Cuttin Machine Co., 37 N. J Law J. t\. 17. Mason v. Western Metal Supply Co., 1 Cal. Ind. Ace. Com. (Part II) 284, 11 N. C. C. A. 245, affirmed, Western Metal Supply Co. v. Pillsbury, 172 Cal. 407, 156 Pac. 491; James v. Witberbee, Sherman & Co., 2 N. Y. St. Dep. Rep. 483. 18. Johnson v. Mountain Commercial Co , 1 Cal. Ind. Ace. Com. (Part II), 100. 19. Penfleld v. Town of Gla=tonbury, 1 Conn. Comp. Dec. 637. 20. Old Times Distillery Co. v. Zehnder, 52 8. W. 1051. 21 Ky. Law Rep. 753; Spooner v. Detroit Saturday Night Co., Mich. Indus. Ace. Bd. July 1913; Walker v. Santa Clara Oil & Dev. Co., 2 Cal. Ind. Ace. Com. 5. 21. Schoen v. Cliicagr St P. M. & O. Fy. Co., 127 N. W. 433, 112 Minn. 38, 45 L. R. A. (N. S.) 84; Sinner v. Town of Colchester, 1 Conn. Comp. Dec. 286. 22. Del Prlore v. Booth Bros. A H. I. Granite Co., 1 Conn. Comp. Dec. 300. Contra re William A. Jones, Claim No. 4173 Ohio Ind. Ace. Bd. June 4. 1913. 91 17 WORKMEN'S COMPENSATION LAWS. man do not constitute an association; 23 that one employed in the capacity of teamster could request a passerby to assist in such work, the Court remarking that, "The service rendered, though casual standing alone, was in the usual course of the relator's business, and therefore within the statute," and the passerby was awarded compensation ; 24 that a bank is not an employer of one of its directors who performed no duties in connection there- with, except to attend directors' meetings, for which he received $5.00 for each meeting ; 25 that dairies are employers within the meaning of the act and not farmers ; 26 that charitable institutions are employers; 27 that a railroad company is the employer of an apprentice fireman although the latter received no pay for his work; 28 that railroads engaged only in intrastate commerce can be considered employers within the meaning of the act. 29 "When the Act excludes employees of railroad companies operating steam railroads as common carriers, the legislative intent was held to be that roads not operating as common carriers should remain under the act. 30 The relation of employer and employee was not terminated ba cause the employee laid off from work the day preceding the 23. Western Supply Metal Co. v. vPillsbury, 172 Gal. 407, 156 Pac. 491, Ann. Gas. 1917E, 390. 24. State v. Ramsey Co., 138 Minn. 416, 165 N. W. 268, 1 W. C. L. J. 642; Paul v. Peter Nikkei et al., 1 Gal. [nd. A.CC. Com. 648; Gin- ther Knickerbocker Co., 1 Cal. I. A. C. 458; Tucker v. Buffalo Cotton Mills, 57 S. E. 626, 76 S. C. 539. 25. Burnham v. The Thames National Bank, 1 Conn. Comp. Dec. 339. 26. Bulletin No. 11, Minn. Dep. Labor & Ind. 22. 27. Mac. Gillivray v. The Northern Counties Institute for the Blind, 4 B. W. C. C. 429, 11 N. C. C. A. 77; Porton v. Central (Unemployed) Body for London (1908), 100 L. T. 102, 2 B. W. C. C. 296; 11 N. C. C. A. 78, Leg. Op. la. Ind. Com. (1915), 13; Garcia v. County of Los Ange- les, 3 Cal. Ind. Ace. Com. 330; Burns v. Manchester & S. W. Mission (1908) 99 L. T. 579; 1 B. W. C. C., 305; Gilroy v. Mackie and others, 46 Scotch L. R. 325, 11 N. C. C. A. 78. 28. Smith v. Western & A. R. Co., 67 S. E. 818, 134 Ga. 216. 29. Blevins v. The Dayton Union Ry. Co., 2 Bull. Ohio Ind. Com. 30. See also Minneapolis, St. P. & S. S. M. Ry. Co. v. Ind. Com. of Wis., 141 N. W. 1119; 153 Wis. 552, 3 N. C. C. A. 707. 30. State ex rel. Winston-Dear Co. v. Dist. C. of St. Louis Co., 146 Minn., 176 N. W. 749, 5 W. C. L. J. 711. 92 WHO COMES UNDER THE ACT. . 17 accident. The fact that he had been sent home by the superin- tendent and was told not to work when unable had no bearing inasmuch aa he was doing work assigned him on the day of the accident. 31 Where an employee was set to work without a physical exami- nation, though the employer's rules required it, the employer was held to have waived the formality and the employee when injured in the course of his employment was held to have been an em- ployee. 32 Where the evidence showed that two persons were jointly run- ning a rock crushing business, though they sought to show that the sales department was a separate business, the employee who was killed at the crushing plant was held to be an employee of the joint employers. 83 One who contracted to take a picture for a film company for a certain sum and agreed to furnish all appurtenances and as- sistants, is the employer of those hired by him, the film company is not the employer of such assistants. 84 One employed as a pumper at an oil well had authority to secure incidental help, who would be in the employ of the owners of the oil lease. 35 A jobbing grinder who worked for other firms than his employ- er, was while so engaged not in the employ of the principal em- ployer. 86 An oil company who selected, directed and controlled a timber sealer who was working for a lumber company upon the property of the oil company was the employer of the sealer, who was killed 31. Chicago Cleaning Co. v. Ind. Board of 111., 283 111. 177, 118 N. B. 98, 1 W. C. L. J. 940, 18 N. C. C. A. 906 32. Illinois Central R. Co. v. Ind. Board of 111., 284 111. 267, 119 N. E. 920, 2 W. C. L. J. 444. 33. Gray v. Ind. Ace. Comm., 34 Cal. App. 713, 168 Pac. 702, 1 W. C. L. J. 151. 34. McDough v. Ind. Ace. Comm., 34 Cal. App. 177, 166 Pac. 1024, 13 N. C. C. A. 448. 35. Tillburg v. McCarthy & Townsend, 179 N, Y. App. DIv. 598, 166 N. Y. S. 878, 15 N. C. C. A. 449. 36. Gates v. Thomas Turner & Co., (1916) W. C. & Ins. Rep. 335, 15 N. C. C. A. 450. 93 17 WORKMEN'S COMPENSATION LAWS. by a tree felled by the lumber company, even though the timber company contributed a portion of the employee's wage. 37 A manufacturing company which was installing a blow pipe system in another company's plant was the employer of a man who was under its direction and control, even though he was paid by the other company. 38 Where a partnership sublet a portion of its contract on a building to a corporation, and for the accommodation of the corpo- ration hired a man who was never informed that he was in the employ of the corporation, but thought he was an employee of the partnership, the latter was held liable as his employer. 39 A watchman employed and paid by an interstate railroad at a crossing where the tracks of an intrastate railroad also crossed and half of whose wages were paid by the latter railroad, was an employee of both roads and could recover from the intrastate road even though the injuries resulting in death were caused by the interstate road. 40 The mere signing of checks for the wages of an employee does not make one an employer of the person receiving the checks. 41 Where two men applied to G. for work and the next day ho directed one of them to work for his father because G. could not use him, and .he was injured, the father was the employer even though he may have been originally hired by G. 42 One who works under a general contractor in the repair of a city's fire alarm wires and is paid by the contractor, but, at the time of the injury, is doing the work in accordance with the orders of the city's superintendent of the fire department, is entitled to compensation as an employee of the city. 43 37. Kirby Lumber Co. v. McGilberry, Tex. Civ. App. , 205 S. W. 835, 3 W. C. L. J. 75. 38. Arnett v. Hayes Wheel Co., 201 Mich. 67, 166 N. W. 957, 1 W. C. L. J. 1061, 18 N. C. C. A. 916. 39. Scott v. O. A. Hankinson & Co., 205 Mich. 353, 171 N. W. 489, 3 W. C. L. J. 759, 18 N. C. C. A. 917. 40. San Francisco, Oakland Terminal Rys. v. Ind. Ace. Comm., 180 Cal. , 179 Pac. 386, 3 W. C. -L. J. 682, 18 N. C. C. A. 918. 41. Lezala v. Indus. Comm., Mich. , 175 N. W. 87. 42. Smith v. Eichelberger, 175 111. App. 231; Consolidated Fire Works v. Koehl, 190 111. 145. 43. Chisolm Case, Mass. 1921, 131 N. E. 161. 94 WHO COMES UNDER THE ACT. 18 18. Every Person, Corporation, Association, etc., as Em- ployers (Cont'd) One is none the less an employer by reason of a workman having been in his employment a very short time 41 or that he has a contract with a third person by virtue of which compensation will eventually fall on such third person. 45 It has been held that one is not the employer of a workman who applied for work and was refused it, but was sent by the first party to another who had requested Of him the loan of a man; 40 that work men engaged in mining coal are employees of the mine owner, though the operations are carried on under a contract with a third party, who selects and pays the workman but the mine owner has reserved control and supervision over the mine; 47 that the principal of an agent who employs helpers or assistants for the benefit of the principal is the employer of such helpers or assist- ants ; 48 that a firm which employed a ganger to unload a barge of sulphur was not the employer of the men whom the ganger hired to help him and with whom he divided the money received for the work; 40 that the individual members of a labor union, an unincorporated association with no funds, are the employers of their janitor and cannot avoid personal liability for compensa {ion; no that a rancher who hires nearby railroad section men to help fight a fire, though the railroad is not in danger, is their employer, even though their foreman also requested them to as- 44. Lysons v. Knowles & Sons, Ltd., 3 W. C. C. 11; Heist v. Wis- consin-Minnesota Light & Power Co., T- \Vis. , (1920) 179 N W. 583, 6 W. C. L. J. 728. 45. Gallagher v. New York Central R. R. Co., The Bulletin, N. Y. Vol. 1. No. 11, p. 21. 46 Boswell v. Gilbert, 2 B. W. C. C. 261, C. C. 47. Skinner v. Stratt.on Fire Clay Co., Vol. 1, No. 7, Bui. Ohio Com. p. 103. 48. Dolan v. Judson, 1 Conn. Comp. Dec. 362; Schmidt v. William Pfiefer, B. W. B. B. Co., Bui. No. 1, 111 .p. 118; McNally v. Diamond Mills Paper Co., The Bui. N. Y. Vol. 1. \o 11, p 12; Peabody v. Town of Superior, Bud. Wis. Inds. Com. Vol. 1, p. 99. 49. Soloski v. Strickland, 1 Conn. Comp. Dec. 564. Contra: Bobbey v. Crosbie, W. C. & Ins. Rep. 366, (1916) Rev'g W. C. ft Ins. Rep. 258 (1915) 15 N. C. C. A. 450. 60. Gerber v. Central Council of rftocktou, 2 Ca'i. I. A. C. Des 654. 95 18 WORKMEN'S COMPENSATION LAWS. sist; 51 that one who had a contract with a firm of plumbers and assigned to the firm one of his workmen to work for its benefit but paid the workman himself is the workmen's employer; 62 that a corporation may be the employer of one of its officers; 53 that a receiver conducting the business of a corporation is the employer of its employees; 54 that a land owner is not the employer of a woodcutter hired by an agent of a contractor who contracted with the land owner to cut his wood, the woodcutter furnishing his own tools and determining his own hours; 55 that the fact that a father from time to time gave his son, nineteen years old, small sums of money did not make him his son's employer; 56 that a church could accept the Connecticut Act, but was not the employer of choir boys to whom it paid but twenty-five cents, per month, for moral and disciplinary purposes ; 57 that a principal contractor is not the employer of one hired by a subcontractor on a wood 51. Mazzini v. Pacific Coast Ry., 2 C'al. I. A. C. Dec. 758; Kennelly v. Stearns Salt & Lumber Co., 190 Mich. 628, 157 N. W. 378; London & Lancanshire Guaranty & Ace. Co. v. Ind. Ace. Com., 173. Cal. 642, 161 Pac. 2. 52. lacovazzi v Coppolo, 1 Conn. Comp. Dec. 476. 53. In re Rawnes, 64 Ind. App. , 118 N. E. 387, 1 W. C. L. J. 562; Reddy^ v. National Excavating & Foundation Co., 178 App. Div. 943, 164 N. Y! Supp. 1110; Re Howard, 221 N. Y. 605, 117 N. E. 1072; Berman v. Reliance Metal Spinning and Stamping Co., 175 N. Y. S. 838; Cray- v. Craycroft-Herrold Brick Co., 2 Cal. Ind. Ace. Com. 654; Angus v. White Gulch Mining Co., 3 Cal. Ind. Ace. Com. 87; Wilton v. Water- bury Rolling Mill Co., 1 Conn. Oomp. Dec. 78; Bowne v. Bowne, 176 App. Div. 131, 162 Supp 244; Matter of Beckman v. Oelerich & Son, 174 App. Div. 353, 160 Supp. 791; Kenney v. Kenney Mfg. & Engineer- ing Co., 7 N. Y. St. Dep. Rep. 383, 163 Supp. 944; Contor v. Rubin Musi- cant Co., 3 N. Y. St. Dep. Rep. 392; Koslowitsky v. Koslow Iron Works, 4 N. Y. St. Dep. Rep. 360; In re Moseley, Jr., 2 Bull. Ohio Ind. Com. 19. 54. Wood v. Camden Iron Works (D. C.) 221 Fed. 1010; Devine v. Delano, 111 N. E. 742; Unrine v. Salina Northern R. Co. (Kan.) 3 W. C. L. J. 633, 178 Pac. 614. 55. Donlon Bros. v. Ind. Ace. Com., 173 Cal. 250, 159 Pac. 715; Fi- delity, etc. Co. v. Brush, 176 Cal. 448, 168 Pac. 890, 1 W. C. L. J. 153. 56. Aetna Life Ins. Co. v. Industrial Ace. Com., 175 Cal. 91, 165 Pac. 15. 57. Loveland v. Parish of St. Thomas Church, 1 Conn. Comp. Dec. 14 A church pastor is not an employee under the Iowa\ Act Leg. Op. la. Ind. Com. (1919), 15. 96 WHO COMES UNDER THE ACT. 18 cutting job; 58 that an association formed as a medium of employ- ment of its members, collecting their pay and distributing the same without deduction and without control over the work of the members, is not an independent contractor; 89 that where the own- er of a building in need of repairs, called upon a general contract- or and asked him to do the work, and he sent a plasterer who was in the habit of doing odd jobs for him, charging by the hour or job, such plasterer was not in the employ of the contractor; 60 that a contract to furnish the stone work for a post office building was held to show the relation of subcontractor and contractor and not employee and employer; 81 that where a contract provided that a buyer of timber should reimburse the seller for wages paid sealers, not to exceed $50.00 per month each, a sealer employed by, and who worked under the direction of the seller, at a salary of $70.00 per month, was not an employee of the buyer." Where an award was made against an employer who was a subcontractor and also against the insurance carrier of the general contractor, it was held that the commission had had no authority to make an award against any other person than the immediate employer, and the award against the general contractor's carrier was dismissed. 83 In an earlier case in the same state the court said, "This court decided in Sturdivant v. Pillsbury et al., 172 Cal. 581 r 158 Pac. 222, and Carstens v. Pillsbury et al., 172 Cal. 572, 158 Pac. 218, * * that under the Constitution the Legislature was not empowered to confer judicial authority upon the commission to inqure into, determine and enforce liabilities under Sec. 30 of the act, in favor of the employee against persons other than his immediate employer." 84 Contra to the above, under the Massachusetts Act, an employee of an independent con- 58. Tangournos v. Smith, i83 N. Y. App. Div. 751, 171 N. Y. S. 256, 2 W. C. L. J. 686. 59. Holcomb v. Standard Oil Co., et a 1 ., 5 Cal I A. C. Dec. 240. 60. Woodhall v. Irwin, 167 N. W. 845, 201 Mich. 400. 61. Mobley v. J. S. Rogers Co., (Ind. Apr.), 119 N. E. 177. 62. Kirby Lumber Co. v. McGilberry, (Texas), 205 S. W. 835. 63. Worswick Street Paving Co. v. Ind Ace. Comm et al., 186 Cal. , 185 Pac. 953, 5 W C. L. J. 342, 185 Pac. 958, 5 W. C, L. J 349; 185 Pac. 958; 5 W. C. L. J. 350; 185 Pac. 959, 5 W. C. L. J, 351. 64. Thaxter v. Finn. 178 Cal. 270, 173 Pac. 163. 2 W. C. L. J. 431. 97 W. C. 7 19 WORKMEN'S COMPENSATION LAWS. tractor may recover compensation from the principal where he was engaged in work for and under the control of the principal, upon the principal's premises, and in the course of the princi- pal's business, though his immediate employer was a subcon- tractor of the principal. 65 Section 31 of the Illinois Act provides that if the principal contractor does not require the subcontractor to protect his em- ployees by insurance, the principal employer shall be deemed an employer jointly with the immediate employer. 66 19. Employees Generally. The subject, who are employees, is naturally the other half of the subject, who are employers, as you do not have the one without the other. While the definition of the term employee, as given in a number of the acts, is as specific as it well may be, there are nevertheless many cases where the application of the definition is difficult and an exami- nation of the decisions will be helpful. It may properly be reiterated here that the rules for deter- mining the existence of the relation of employer and employee are the same as those at common law for the relation of master and servant. 07 Though it does not follow from the fact of the existence of the relation of employer and employee or master and servant that the compensation act applies, as it must further be determined that the relation does not come within any one of the employments exempted by the act. The term employee, as used in some Acts, is a broader term than ' ' workman, ' ' which is used instead in other acts. As for example in an English case a lec- turer was held not to be a workman and therefore not under the act. 68 65. In re Comerford, 229 Mass. 573, 118 N. E. 900, 1 W. C. L. J. 793. 66. Butler Street Foundry & Iron Co. v. Ind. Board of Illinois, 277 III. 70, 115 N. E. 122, 15 N. C. C. A. 486. 67. Western Indemnity Co. v. Pillsbury, 172 Gal. 807, 159 Pac. 721; Lenk v. Kansas & T. Coal Co., 80 Mo. App. 374; Rhatigan v. Brooklyn, Union Gas Co., 136 App. Div. 727, 121 Supp, 481; Kimball v. Cushman, 103 Mass. 194; Wood v. Cobb, 3 Allen 58; United States Board & Paper Co. v. Landers, 47 Ind. App. 315, 93 N. ,E. 232; "Singer Mfg. Co. v. Rahn, Vt. , 1921, 113 Atl. 818, 132 U. S. 518, 33 L. Ed. 440; Kelly's Depend- ents v. Hoosac Lbr. Co., Vt. (1921), 113 Atl. 818. 68. Waites v. Franco-British Exhibition (Inc.) (1909), 2 B W. C. C. 199. 98 WHO COMES UNDER THE ACT. 19 In a recent New Hampshire case the court said, "The test to determine whether an employee is entitled to the benefit of the act is to inquire whether: (1) He was engaged in manual or mechanical labor ; (2) any part of his work was~done in proxi- mity to hoisting apparatus or power-driven machinery (Moran v. Nashua Mfg. Co., 78 N. H. 567, 103 Atl. 312) ; and (3) whether five or more persons engaged in manual or mechanical labor were employed in and about the mill, etc., in which he worked." 611 Where miners subtracted a certain sum per ton from the price paid them for mining coal and paid it to a shot firer whom they hired, supervised, and had the authority to discharge, it was held the power was delegated to them by the operators, and the shot firer was an employee of the mine operators. 70 An applicant for a position as a conductor on a street railway, who had never been appointed and was to receive no compensa- tion unless he was accepted, and then to receive a bonus at the end of the first month, was not an employee of the street rail- way. 71 In a Connecticut case the court said: "One is an employee of another when he renders service for him and what he agrees to do or is directed to do is subject to the will of that other in the mode and manner in which the service is to be done and in the means to be employed in its accomplishment as well as in the result to be attained," and held that a reporter who was under the direction of the publishers was an employee, even though he had other employment when not serving the publishers. 72 In a Utah case, the court adopted the definition from 2 Words and Phrases (New Series) 261, "An employee is one who works for and under the control of another for hire." 73 69. Regnier v. Rand, 79 N. H. , 108 Atl. 810, 5 W. C. L. J. 559. 70. Bid well Coal Co. v. Davidson (Iowa), 174 N. W. 592, r> W. C. L. J. 71. 71. Fineburg v. Pubic Service Ry. Co., 94 N J. L. , 108 Atl. 311, 5 W. C. L. J. 299. 72. Kinsman v. Hartford Courant Co., 94 Conn., , 108 Atl. 562, 5 W. C. L. J. 361. 73. Strieker v. Indus. Comm., Utah . 188 Pac. 849, 5 W. C. L. J. 920. 99 20 WORKMEN'S COMPENSATION LAWS. That the term applies only to those in civil, as distinguished from military service, was held in a New York case. Notwith- standing the employee in that case was paid by the city of New York, he was held to be in military service and not protected by the Compensation Act. 74 It has been held that in construing the word, courts will apply the rule of liberal construction. 75 20. Who are Employees. Employees who enter into a pri- vate agreement with their employers to waive their rights under the act are nevertheless employees within the intent of the act, and entitled to its benefits, 78 first, because such agreements are expressly prohibited by special provisions in most Compensation Acts, and, second, they have been held to be contrary to public policy. An employee is such within the moaning of the Compen- sation acts even though his contract of employment existed prior to the passage of the act. The acts do not impair the obligations of the contract, 77 .as all contracts are subject to the police power ; 78 though the acts do not apply to an action for injuries which occurred prior to the passage of the act. 79 It has been held that where an agreement has been made to pay compensation to the captain of a sailing vessel, during his disability, the owners were estopped from afterwards denying that the relation of master and servant existed; 80 that though a workman obtained employment by means of a false statement in 74. Muller v. New York, 189 App. Div. 363, 178 N. Y. Supp. 416. 75. Marshall Field & Co. v. Industrial Comm., 285 111. 333. 76. Powley v. Vivian & Co., 169 App. Div. 170, 154 Supp. 426, 10 N. C. C. A. 835; Chicago Railways Co. v. Industrial Board, 276 111. 112, 114 N. E. 534; In re Geo. M. Gerhauser, 2nd A. R. U. S. C. C. 241; Shaughnessy v. Northland S. S. Co., Wash. , 162 Pac. 546, B 1 W. C. L. J. 1602. 77. State ex rel. Nelson-Spelliscy Co. v. District Court of Meeker County, 128 Minn. 221, N. W. 623, 11 N. C. C. A. 636; State v. City of Seattle, 73 Wash. 396, 132 Pac. 45. 78. In re McGuire, 31 Sup. Ct. 259, 55 L. Ed. 328. 219 U. S. 549; Railway v. Schubert, 224 U. S. 603, 56 L. Ed. 911; State v. Creamer, 85 Ohio St. 349, 39 L. R. A. (N. S.) 694. 79. Arizona & N. M. Ry. Co. v. Clark, 207 Fed. 817. 80. Goodsell v. Steamship "Loyd", 7 B. W. C. C. 631. 100 WHO COMES UNDER THE ACT. 20 writing that amounted to a misdemeanor, under the New York Penal Law, 939, he was nevertheless an employee within the meaning of the Compensation Act; 81 that the mere inten- tion of an employee to quit his position after a certain period does not discontinue his status as an employee where he has not yet acted on his intent; 82 that a substitute, em- ployed and paid by a workman who is ill, is the employee of the sick workmen's employer; 83 but it has been held otherwise where a substitute other than the one authorized was employed ; 84 or where one was employed unnecessarily and with- out authority; 8 " that a carpenter who voluntarily did work on a structure in the course of construction, in hope of later being employed, was not an employee and compensation was refused ; 8 " that a journeyman paper hanger hired by a foreman of a depart- ment store 's wall paper department to go to the residence of pur- chasers to hang paper, was an employee of the department store, as it paid him for his work and retained authority to control the work; 87 that an apprentice qualifying himself for the operation of an elevator was an employee, 88 even though such apprentice may receive no pay for his services; 89 that a piece worker over whose work the employer exercises general supervision is an em- ployee; 90 that a physician injured when returning from attend- 81. Kenny v. Union Ry. Co., 166 App. Div. 497, 152 Supp. 117, 8 N. C. C A. 986; Galveston H. S. A. Ry. Co. v. Harris; 107, S. W. 108; 48 Tex. Civ, App. 434. 82. Qoering v. The Brooklyn Mining Co., 2 Cal. Ind. Ace. Com. 124; 12 N. C. C. A. 245. 83. Goshman v. Doggish, 1 Conn. Comp. Dec. 572; Campbell v. City of Los Angeles, 2 Cal. Ind. Ace. Com. 300; Clark v. Morrison and Burns, 2 Cal. Ind. Ace. Com. 110. 84. McClelland v. Todd, (1909), 43 Irish L. T. J. 75; 2 B. W. C. C. 472. 85." Corrigan v. Hunter, 122 S. W. 131, 139 Ky. 315. 86. Steiman v. Anshi Sfard, 2 Cal. Ind. Ace. Com. 944; Artenstein v. Employers Liability Assur. Corp. Ltd., 2 Mass. Wk. Comp. Cases 699. 87. In re McAllister 229 Mass. 193, 118 N. E. 326, 1 W C. L. J. 618. 88. Pettee v. Noyes, 133 Minn. 109, 157 N. W. 995; Kilbury v. Vitcb, 4 N. Y. St. Dep. Rep. 434. 89. Smith v. Western & A. R. Co., 67 S. E. 818; 134 Ga. 216. Contra: Turner v. S. S. Haulwen. 8 B. W. C. C. 242; Beatty v. San Diego Elec. Ry. Co., 5 Cal. Ind. Ace. Com. 241. 90. State ex rel. Va. & Rainy Lake Co. v. DIsf. Ct of St. Louis, Co., et. 101 20 WORKMEN'S COMPENSATION LAWS. ing to an incapacitated employee was entitled to compensation, as he attended to all compensation cases for his employer under general contract of hire to render such services; 91 that the superintendent of a mill is an employee ; 92 that the general man- ager of a corporation is an employee; 93 (though they are by some acts expressly excluded) 94 that an expert mining engineer retained for consulting purposes is not an employee; 95 that a small boy who receives candy and fruit for helping a delivery man for a grocery store, deliver goods, is not an employee, 96 that book agents or canvassers, who may devote as much time or as little as they desire, to their work, are no employees; 97 that a salesman working on a commission with a guaranteed net re- turn is an employee ; 98 that a moving picture actor is an em- ployee ;" that where a married woman cannot contract with her husband she can not contract to be his employee. 1 al., 128 Minn. 43, 150 N. W. 211, 7 N. C. C. A. 1076; Travis v Hobbs, Wall & Co., 2 Cal. Ind. Ace. Com. 506; Hale v. Johnson, 2 Cal. Ind. Ace. Com. 366; Ryan v. Tipperary North Riding County Council, 8 B. W. C. C. 415; Stonaker v. Jones & Delaney, 2 Cal. Ind. Ace. Com. 831; Malott v. Healey, 2 Cal. I. A. C. Dec. 103; In re Reinwold, 168 App. Div. 425; 153 Supp. 598; Missouri K. T. Ry. Co. v. Romans, 114 S. W. 157. (Tex. Civ. App. . . ,) 91. Getzlaff v. Dr. N. T. Enloe, 3 Cal. Ind. Ace. Com. 18. 92. Aken v Barnet & Aufsesser Knitting Co., 118 App. Div. 463, 103 Supp. 1078; Miller's Mut. Casualty Co. v. Hoover et. al., Tex. Civ. App. , 216 S. W. 475, 5 W. C. L. J. 325. 93. Head v. Fidelity and Deposit Co., 1 Cal. Ind. Ace. Com. (Part II) 451. 94. Bowne v. S. W. Bowne Co., N. Y. App. Div. , 116 N. E. 364, B 1 W. C. L. J. 1183; Millers' Indemnity Underwriters v. Cook, Tex. Civ. App. 229 S. W. 598, Section 9 West Virginia Act Managers, Assistant. Managers, Assistant Superintendents excluded. 95. Report of Nevada Ind. Com. July 1, 1913 to Dec. 31, 1914, p. 26. 96. Taylor v. The New York Supply Co., 1 Conn. Comp. Dec. 182. 97. Skidmore v. Brown, 2 Cal. Ind. Ace. Com. 493. 98. Gurnett v. L. P. Ross Co., 167 N. Y. Supp. 1102, 181 App. Div. 910. Brown v. Ind. Ace. Comm. 174 Cal. 457, 163 Pac. 664. 99. Chandler et. al. v. J. L. Lasky Feature Play Co., 2 Cal. Ind. Ace. Com. 653, See also Stites v. Universal Film Co., 2 Cal. Ind. Ace. Comm. 653, 12 N. C. C. A. 1033. 1. In re Humphrey, 227 Mass. 166, 116 N. E. 412, 15 N. C. C. A. 458. 102 WHO COMES UNDER THE ACT. 20 The president of a corporation, owning half of the stock, in- jured while superintending a job, was not an employee, where his salary was not considered in arriving at the premium in taking out a policy covering the employees. - But where the president of a corporation was employed by its manager to work in its coal yard at $2.00 per day, was carried on the payroll, and obeyed the manager's orders, he was an em- ployee. 8 Where the superintendent of light lines, in a telephone con- versation with his wife, authorized her to get some one to fix a break in the lines, and mentioned a certain one to get, the court held thai the suggestion was merely advisory, and a different party selected by the wife was an employee entitling his dependents to receive compensation for his death. 4 One who, being slightly intoxicated, was ordered to go home but returned to work and was killed; was held to be an employee at the time of meeting with the fatal accident. 8 The president and treasurer of a corporation, who managed and directed its business, received a salary which was included in the payroll, and on which premium was paid to the insurer, was not entitled to compensation, where there was no separate statement added to the payroll estimating the wage value of the labor incidental to his occupation, as distinguishable from his salary as an officer. 8 But where it was not shown that a portion of the salary received by such officer was in contemplation of his performance of manual duties an award cannot stand. 7 2. Cashman's Case, 230 Mass. 600, 120 N. E. 78, 2 W. C. L. J. 637. 3. Dewy v. Dewy Fuel Co., Mich. 178 N. W. 36, 6 W. C. L. J. 330. 4. American Bridge Co. v. Funk Ind. Comm., Iowa , 173 N. W. 119, 4 W. C. L. J. 374. 5. Heist v. Wisconsin-Minnesota Light and Power Co., - - Wis. , 179 N. W. 683, 6 W. C. L. J. 728. 6. Skouitchi v. Chic Cloak & Suit Co., 183 N. Y. S. 321, (1920). 6 W. C. L. J. 492, affd. 1921, 130 N. E. 229; Hubbs v. Addison Elect. Light & Power Co., N. Y. App. , (1921). 130 N. E. 302. 7. Kolpien v. O'Donnell Lbr. Co., N. Y. App. , (1921), 130 N. E. 103. 103 20 WORKMEN'S COMPENSATION LAWS. A shot firer, selected by the miners themselves from whose wages a small amount was deducted and paid into the union which paid the firer, though these provisions were not considered when the arrangement of hiring was made, was held to be an employee of the mine, where the company agreed with its miners that they might select, supervise, and discharge the shot firer. 8 One engaged to do a specific job, over which the employer re- tains no right of control, is not an employee. 9 A taxi driver, allowed to retain 25 per cent of the amount earned, accounting to the owner of the taxi for the remainder, is a bailee and not an employee. 10 A substitute is not an employee entitled to the protection of the act unless the one he substituted for was within the act. 11 Nor are partners employees. 12 A minor child working for his father is not an employee within the meaning of the California Act, where there has not been an actual emancipation of the child. 13 See section 14, ante. One drafted into the army, and sent as a member of a military company to work with civilian employees of a logging company operating for the government, is within the protection of the act. 14 Under the Vermont act an employee who receives over $2000 a year, under a contract to continue for a period of a year or longer at a determined or determinable wage amounting to more than $2000 a year is excluded from the benefits of the act. 15 8. In re Duncan, Ind. App. , (1920), 127 N. E. 289, 6 W. C. L. J. 148; Bidwell Coal Co. v. Davidson, Iowa , 174 N. W. 592, 5 W. C. L. J. 71. 9. Roberts v. Indus. Comm., Cal. , (1921), 197 Pac. 978. 10. Rockefeller v. Indus. Comm., Utah , (1921), 197 Pac. 1038. 11. Same. 12. Same. 13. Aetna Life Ins. Co. v. Indus. Ace. Comm., Cal. , 165 Pac. 15, A 1 W. C. L. J. 111. 14. Rector v. Cherry Valley Timber Co., Wash. , (1921), 169 Pac. 653. 15. Kelly's Dependents v. Hoosac Lbr. Co., Vt. , (1921), 113 Atl. 818. North Dakota Act amended 1921, 8, $2400. 104 WHO COMES UNDER THE ACT. 21 21. Who are Employees. (Cont'd) It has been held that a nurse is the employee of the hospital in which she works, even though the hospital makes a special charge to the patient for the nurse, and only pays that amount to the nurse when it has been paid by the patient: 18 that neither a professional nurse nor a physician is an employee under the Iowa and British acts; 17 that chorus girls, vaudeville performers and professional football play- ers may be employees; 18 that a superintendent of construction, having peculiar skill and knowledge as an inventor of an appa- ratus in use, is allowed great liberty of action as to purchase of materials and manner of construction, does not necessarily indi- cate that lack of control on the part of his employer which would make the superintendent an independent contractor rather than an employee 19 That where an agent of a company employed others to assist him in making sales, deliveries and collections, invested some of his own capital in the business, and was under no supervision or direction of his principals, he was not an em- ployee; 20 that a traveling salesman, selling goods for the defend- ant, receiving half the profits for his work, paying his own ex- penses and being forbidden to solicit regular customers of the company, was an employee ; 21 that the fact that a workman under- takes to do a special job with his own tools and materials, does not of itself prevent him from being an employee ;" that the manager of defendant's business, who had no agreement as to the amount of his wages, but drew large sums from time to time, was an employee; 28 that an employee who was employed for fixed hours 16. Williamson v. St. Catherine's Hospital, 2 Cal. Ind. Ace. Com. 430, 11 N. C. C. A. 497. 17. Leg. Op. la. Ind. Cora. (1915), 14; Murphy v. Enniscarthy Board of Guardians, 2 B. W. C. C. 291, C. A. 18. Gaiety Theatre Co. v. Mary Rockwell, 1 Cal. Ind. Ace. Com. (Part 1) 111; Howard v. Republic THeatre, 2 Cal. I. A. C. Dec. 514; Walker v. Crystal Palace Football Club, 3 B. W. C. C. 53. C. A. 19. Turner v. Oil Pumping & Gasoline Co., 2 Cal. I. A. C. Dec. 496. 20. Fineblum v. Singer Sewing Machine Co., 1 Conn. Comp. Dec. 126. 21. Reed v. Booth & Platt Co., 1 Conn. Comp. Dec. 121; Brown v. Indus. Comm. Cal. , 163 Pac. 664, A 1 W. C. L. J. 119. 22. In re Rhienwald 168 App. Div. 425, 153 N. Y. Supp. 598. 23. Howard v. George Howard Inc., The Bull. N. Y. Vol. 1, No. 11, P. 14. 105 21 WORKMEN'S COMPENSATION LAWS. and at a specified salary, but was allowed a commission for new business obtained after hours was an employee regardless of which work he was doing; 24 that where a claimant had a contract as supervisor of defendant's casting department and spent half his time travelling in the interest of the company, of which he was director and treasurer, though he received no salary for the latter duties, this did not preclude him from being an employee ; 25 that convicts are not engaged in any contract employment; 26 under the British act one is not ordinarily considered an employee, when he is paid for his services by a share in the profits, 27 but it has been held otherwise under some American acts. 28 It has been held that where a steel tester making 2 per week obtained an agreement with his employers, which allowed him to live, rent free, in a cottage nearby in return for which he was to see to the cleaning of the offices, his daughter doing the work, and he was killed by gas, while asleep in his bedroom, there was no contract of service and deceased was not an employee ; 29 that one who visited defendant's office seeking employment and was directed by defendant to go to the defendants logging camp, on a logging train and was injured on the way, was not an employee ; 3rt that the relation of employer and employee is not limited to ex- press contracts; 31 that the rights of employees are not affected 24. Cameron v. Pillsbury, 173 Cal. 83, 159 Pac. 149. 25. Welton v. Waterbury Rolling Mill, 1 Conn. Comp. Dec. 78; Eagle- son v. Harry G. Preston Co., Perm. , 109 Atl. 154, 5 W. C. L. J. 744. 26. Ryan v. Metropolitan Chair Co., 1 Conn. Comp. Dec. 37; (Wk. Comp. Act. Wash. 17), Op. Atty. Gen. Sept. 17, 1913. 27. Admiral Fishing Co. Ltd. v. Robinson, 3 B. W. C. C. 247 C. A.; Tindall v. Great Northern Steam Fishing Co., 6 B. W. C. C. 480 H. L..; Boon v. Quance, 102 L. T. 443, 3 B. W. C. C. 106 C. A; Burman v. Zodiac Steam Fishing Co., 7 B. W. C. C. 767 C. A.; Smith v. General Motor Cab Co., Ltd., (1911), A. C. 188; Daggett v. Waterloo Taxicab Co., Ltd., 3 B. W. C. C. 371 C. A. 28. Reed v. Booth & Platt Co., 1 Conn. Comp. Dec. 121, Op. Sp. Counsel to la. Ind. Com., (1915), p. 3. 29. Wray v. Taylor Bros. & Co., Ltd. 6 B. W. C. C. 529, C. A. 30. Susznik v. Alger Logging Co., 76 Or. 189, 147 Pac. 922.. 31. Reitmeyer v. Core Bros. & Co., Pa. , 107 Atl. 739, 4 W. C. L. J. 644. 106 WHO COMES UNDER THE ACT. 22 by the invalidity of their employer's subcontract; 82 that one in- jured while on the premises and before the contract of employ- ment was entered into was not an employee. 88 22. Employment Through Agents and Assistants. The agent who with authority express or implied, employs help for the benefit of his principal's business, thereby creates the relation of employer and employee between such help and his principal. 84 So it has been held that where a driver, employed to solicit sales of beer and make delivery, was permitted to employ helpers, a helper who was injured while in the performance of his duty was entitled to compensation from the brewery; 35 that an expert, hired by a factory owner to supervise the installation of machinery, who hired assistants, paid by the owner, one of such assistants being injured while so engaged was entitled to compensation from the factory owner; 36 that workmen hired by an agent of a com- 32. Wauson Lumber Co. v. Industrial Acci. Comm., 166 Wis. 204, 164 N. W. 836, 1 W. C. L. J. 140. 33. Brassard v. Delaware & H. Co., 186 App. Div. 647, 175 N. Y. S. 359, 4 W. C. L. J. 130, 18 N. C. C. A. 912; California Highway Comm. v. Indus. Comm., Cal. , 181 Pac. 112, 4 W. C. L. J. 150. 34. Paul v. Nikkei, 1 Cal. I. A. C. Dec. 362; Dolan v. Judson, 1 Conn. Comp. Dec. 648; Gallagher v. Federal Transfer Co., and Maryland Gas. ualty Co., 1 Cal. Ind. Ace. Com. (Part II), 39; Paduca Box & Basket Co. v. Parker, 136 S. W. 1012, 143 Ky. 607, 43 L. R. A. (N. S.) 179 111. Cent. R. Co. v. Timmons, 100 S. W. 337; 30 Ky. Law Rep. 1155; Yazoo ft M. V. R. Co. v. Slaughter, 45 So. 873; 92 Miss. 289; Wells v. Ky. Distillers & Warehouse Co., 138 S. W. 278, 144 Ky. 438; Tucker v. Buffalo Cotton Mils, 57 S. E. 626, 75 S. C. 539; Peterson v. Pellasco. 2 Cal. Ind. Ace. Com. 199, 11 N. C. C. A. 377; Tillburg v. McCarthy, 166 N. Y. S. 878, 179 App. Div. 593; 15 N. C. C. A. 449; State ex rel. Menaber v. Dist. Court of Ramsey Co., 138 Minn. 416, 165 N. W. 268; Yolo Water & Power Co. v. Ind. Ace. Comm., 35 Cal. 14, 168 Pac. 1146, 15 N. C. C. A. 452, State ex rel. Nienabar v. Dist. Ct. of Ramsey Co. et al., 138 Minn. 416, 165 N. W. 268, 1 W. C. L. J. 642. 35. Sandon v. Kendall Mass., , 123 N. E. 847, 4 W. C. L. J. 501; Schmidt v. Wm. Pfeifer Berlin Weiss Beer Brewing Co., Bui. No. 1, 111. p. 118; Vance v. Peter A. Frazee ft Co., 166 N. Y. Supp., 117, 179 App. Div. 963. 36. McXally v. Diamond Mills Paper Co., The Bui. N. Y. Vol. 1. No. 11, p. 12, Opitz v. Hoertz, 194 Mich. 626, 161 N. W. 866. 107 22 WORKMEN'S COMPENSATION LAWS. pany, which took over the logging work of an independent con- tractor, became the employees of the company; 37 that when a town's agent builds a bridge for the town at a stipulated price per day for himself and his workmen, he makes such workmen the employees of the town ; 38 that a railroad company is not liable for damages to one employed by a conductor when he has a full crew, and there is no emergency; 39 that the son of a town marshal injured while operating a pump at his father's request, when the latter had no express authority to hire an assistant, was not entitled to compensation from the town - 4 that one employed to do a specific piece of work cannot make those whom he may employ to help him, the employees of his employer ; 41 that a public school is the employer of a window washer hired twice a year by its janitor and paid by the janitor out of his own wages without authority from the school board, though not without its knowledge; 42 that one who is acting as the agent for another, and hires a man without disclosing his principal may become liable to such employee for compen- sation; 43 that a foreman in full charge of all the employees in a room, is an "agent," whose knowledge of an accident makes written notice unnecessary: 44 that where a substitute, un- officially appointed, sustains an injury, he is not entitled to com- pensation ; 4B that where the father of the owner of a building had authority to look after small matters about the building and there 37. Freeman v. Dells Paper & Pulp Co., 150 Wis. 93, 135 N. W. 540. 38. Peabody v. Town of Superior, Bui. Wis. Ind. Com. Vol. 1, p. 99, Village of West Salem v. Ind. Com., 162 Wis. 57, 155 N. W. 929. 39. Clarke v. Louisville & N. R. Co., Ill S. W. 344; 33 Ky. Law Rep. 797; Vassar v. Atlantic Coast Line R. Co., 54 S. E. 849; 142 N. C. 68; 7 L. R. A. (N. S.) 950; Yazoo & M. V. R. Co. v. Stansberry, 53 So. 389; 97 Miss. 831; Wagon v. Minneapolis & St. L. R. A. Co., 80 Minn. 92; 82 N. W. 1107; But see Paul v. Peter Nikkei, 1 Cal. Ind. Ace. Com. (Part II) 648, 11 N. C. C. A. 376; McCutcheon v. Marinette, Tomahawk & Western R. Co., Fourth Annual Report (1915), Wis. Ind. Com. 13. 40. Noonan v. City of Perris, 2 Cal. Ind. Ace. Com. 109. 41. Kackel v. Serviss, 180 App. Div. 54, 167 N. Y. Supp. 348. 42. Sabini v. Loura (1916), 3 Cal. Ind. Ace. Com. 354. 43. Scott v. O. A. Hankinson & Co., Mich. , 171 N. W. 489. 44. In re Simmons, Me. , 103 Atl. 68, 1 W. C. L. J. 984. 45. In re Chas. C. Logan, 2nd A. R. U. S. C. C. 244. 108 WHO COMES UNDER THE ACT. 23 was 110 clear line drawn wherein his authority would cease, his employment of a contractor to clean the building was held to be sufficiently authorized so as to hold the son, even though as princi- pal he was not disclosed. 46 23. Employee Doing Incidental Work. Some of the acts provide that if employments are incidental to the operation of the usual business of the employer, they are subject to the act. But regardless of whether it is covered by the act it often becomes a pertinent question whether the work in which the employee was injured was incidental to the main purpose of the employer's busi- ness and therefore included by the act, or is incidental to a part of one of the employments expressly excluded by the act. It has been held in Illinois, that the widow of a workman killed while blasting stumps on a township road, was not entitled to compensation because such work was incidental employment in connection with the repair of the road (work not included under the act), and the workman was not an employee within the act, which also excludes employments casual or not in the usual course of the employer's business, 47 because blasting, while one of the hazardous employments included by the act, was in this case but casual and therefore excluded from the act. The court said: "The work of dynamiting the stumps was a mere casual or incidental employment in connection with the mat- ter of grading and repairing the road, and the evidence does not show that the road district had ever before used dynamite in con- nection with road grading at any time, and the evidence clearly shows that the work would only continue for a few hours at most. There was no expectancy, so far as the evidence shows, that dyna- mite would ever be again used by the district in its road work. In the case of Aurora Brewing Co. vs. Ind. Bd., 277 111. 142, 46. Davis v. Indus. Comm. 111. , 130 N. E. 333 (1921). 47. McLaughln v. Industrial Board, 281 111. 100, 117 N. E. 819; 1 W. C. L. J. 504; Mattoon Clear Water Co. v. Ind. Com'n. et al.. 291 111. 487. 126 N. E. 168. 5 W. C. L. J. 671; Contra, see Lanagan v. Saugerties, 180 App. Div. 227, 167 N. Y. Supp. 664. 1 W. C. L. J. 676; State ex rel. City of Northfleld v. Disk Court of Rice Co., 131 Minn. 352, 155 N. W. 103, 11 N. C. C. A. 366. 109 23 WORKMEN'S COMPENSATION LAWS. 115 N. E. 207, "this court held that the Legislature never intended an employee who was engaged for one job lasting only three or four days to be within the terms of the Workmen's Compensation Act, even though the employee had been employed at irregular intervals during several previous years -to perform similar work." In a California case, where workmen were blasting stumps to convert a dairy farm to a fruit farm they were held to be engaged in work incidental to agricultural work and therefore excluded from the benefits of the act. In other words the blasting of stumps was considered part of the usual business of the farmer. 48 The manufacture of drugs is one of the hazardous employ- ments, which alone are covered by the New York Act. A handy man, employed by such establishment, who also acted as porter and elevator man had occasion to reach into the elevator shaft for a board, in so doing he lost his balance, fell into the shaft and was killed. On the question of whether this incidental work was properly a part of the usual course of the employer's busi- ness the court said: "We feel perfectly secure, however, in holding that where, as in this case, an employee is injured while performing an act which is fairly incidental to the prosecution of a business and appropriate in carrying it forward and pro- viding for its needs, he or his dependents are not to be barred from recovery because such act is not a step wholly embraced in the practise and characteristic process or operation which has been made the basis of the group in which employment is claimed." 49 A carpenter fell overboard, and was injured, while repairing a boat owned by the hay and grain merchants by whom he was employed. He was awarded compensation. 50 An employee of a 48. Martin v. Russian River Fruit & Land Co., 1 Gal. Ind. Ace. Com. (Part II) 18; Reily v. Newhall Lumber Co., 3 Cal. Ind. Ace. Com. 208. -49. Matter of Larsen v. Paine Drug Co., 218 N. Y. 252, 112 N. E. 725, Aff'g 169 App. Div. 838, 155 Supp. 759, 11 N. C. C. A. 327; Kimbol v. In- dustrial Ace. Comm., 173 Cal. 351, 160 Pac. 150, L. R. A. 1917B, 595, Ann. Cas. 1917E, 312; Lanagan v. Town of Saugerties, 180 N. Y. App. 227, 167 N. Y. S. 654, 1 W. C. L. J. 675. 50. Chertkoff v. Schaeffer & Son, 5 N. Y. St. Dep. 423; Fields v. Wright et al. 5 Cal. Ind. Ace. Com. 224. 110 WHO COMES UNDER THE ACT. 23 garbage reduction company drove one of its collecting wagons, but while doing some extra work climbed on the roof of a build- ing to pull down a rope used to hoist fertilizer material he was helping to load, he fell through a skylight and was killed. It was held that he was entitled to compensation, as the injury was received in the course of his employment. 51 Where a chauffeur, waiting in a garage for his master's machine to be repaired, voluntarily and to no useful purpose cranks the engine and is injured, all control and responsibility for the work being out of his hands, it was held that what he did was not at the time in- cidental to his employment, and he was not entitled to compen- sation. 52 In an Illinois case where a corporation was engaged in general contracting work, including street paving, and contracted with a teaming company to haul stone, an award against the corpora- tion on account of the accidental death of a teamster was affirm- ed. The court said : The enterprise cannot be considered a mere incident to the general business in which plaintiff in error was engaged. It was the business or enterprise itself. * * * If it was only the hauling of one load of crushed stone by a farmer or business man who was not engaged in construction or contract- ing work generally, undoubtedly then the proper conclusion would be to hold the hauling of such single load a mere incident to the main business." 68 It would appear therefore that if the work being done may properly be within the ordinary expectation or contemplation of the parties as being necessary or proper for the employee to do, to aid in carrying out either directly or indirectly the main purpose or business of the employer, even though the employee steps aside from his usual work to do this unusual or isolated act or work, he should nevertheless receive compensation when injured in such work." 51. Ross v. Genesee Reduction Co., 180 App. Div. 846, 168 N. Y. Supp. 61, 1 W. C. L. J. 683. 62. De Long v. Krebs, 1 Cal. I. A. C. Dec. 592. 68. . Parker-Washington Co. v. Industrial Board of 111., 274 HI. 498, 113 N. E. 976. 14 N. C. C. A. 1079. 64. Wendt v. Industrial Ins. Comm. of Wash., 80 Wash. 111. 141 Pac. Ill 23 WORKMEN'S COMPENSATION LAWS. In another Illinois case a company was engaged in the manu- facture and sale of ice, and in the sale of coal, coke and wood, and also maintained a horse barn where it kept horses which it used in connection with its business. The deceased, a teamster employed by the company to deliver ice and coal, was kicked by a horse and killed while feeding it. It was contended that the deceased was not engaged in that part of the company's business which could properly be termed extra hazardous and therefore was not under the act. The court said: "Here the duties of the deceased required him to work in and around the plant where the ice was manufactured, and included the loading of ice and the care of the horses in a large stable on the premises of plain- tiff in error immediately adjacent to the main ice plant. We cannot see how it can fairly be held that the employment in which the deceased was engaged was not a part of plaintiff in error's business or occupation of manufacturing and selling ice. * * * The men in the building of plaintiff in error where the machinery was located and the ice manufactured were certainly within the act. The workmen around the building and caring for the property were within the act. Those whose duties took them to the plant to take away the product were within the act, and we can reach no other conclusion than that the duties of the deceased were of such a nature, so related to and connected with the occupation of plaintiff in error as to require that plaintiff in error, under the provisions of the workmen's compensation act, shall be held liable for the injury." 55 Section 1, of the New Hampshire Act, provides that it shall apply to "work in any shop, mill, factory or other place on, in connection with or in proximity to, hoisting apparatus or machin- ery propelled or operated by steam or other machanical power," etc. The plaintiff was injured in constructing a pulp carrier a mile from the defendant's mills. In declaring that the plaintiff 311, 5 N. C. C. A. 790; Replogle v. Seattle School Dist. No. 1, 84 Wash. 581, 147 Pac. 196, 8 N. C. C. A. 442; But see Shafer v. Parke, Davis Co., 192 Mich. 577, 159 N. W. 304, 14 N. C. C. A. 1077. 55. Surburban Ice Co. v. Industrial Board of 111., 274 111. 630, 113.N. E. 979, 14 N. C. C. A. 1080. 112 WHO COMES UNDER THE ACT. 24 did not come under the act the court said: "The place where the pulp carrier was being erected was in no way appurtenant to the defendants' mills, and in no sense a part of their manu- facturing plant. To hold that building a pulp carrier for the de- fendants more than a mile from their mills is working in their mills within the meaning of the statute would lead to results never contemplated by the legislature. Under such an inter- pretation of the statute those engaged for the defendants in felling trees, hauling them from the forest many miles from their mills could be said to be working in their mills." 56 A Country Club was held liable to pay compensation for the death of an employee who was killed while felling trees on land belonging to the Club, and from the sale of which the Club de- rived a profit, although the Club was organized for pleasure and not for profit." 24. Loaned Employees. The common-law principle 88 that an employee lent to a special employer, and who assents to the change, becomes a servant of the employer to whom he is loaned, applies to cases arising under the workmen's compensation act. 59 In a recent Wisconsin Case the Court said: "When a work- man is transferred with his own consent, by an employer to a special employer, the latter may become liable to pay an indemni- ty when he is in the exclusive control and management of the work in which the injury is received. 60 But where the employee 56. King v. Berlin Mills Co., N. H , 99 Atl. 289 (1916) 14 N. C. C A. 1082. 57. Uhl v. Hartwood Club, 177 App. Div. 41, 163 N. Y. Supp. 744. Aff'd 221 N. Y. 588, 116 N. E. 1000. 58. Wyman v. Berry, 75 Atl. 123, 106 Me. 43; Wise v. Lillie Sugar Ap- paratus Mfg. Co., 113 Pac. 403, 84 Kan. 86; W. N. Neill Co. v. Rumpf, 147 S. W. 910, 148 Ky. 810; Wolfe v. Mosler Safe Co.. 139 App. Div. 848. 124 Supp. 541; Bowie v. Coffin Valve Co., 86 N. E. 814. 200 Mass. 571. 59. Scribner's Case. Mass. , 120 N. E. 350, 2 W. C. L. J. 905; Bayer v. Bayer, Mich. , 158 N. W. 109; Burns v. Jackson, 200 Pac. 80. 60. Cayll v. Indus. Comm., Wis. , (1920), 179 N. W. 771, 7 W. C. L. J. 165; Schweitzer v. Thompson Morrie Co. of N. J., N. Y. App. , 127 N. E. 904, 6 W. C. L. J. 366. 113 W. C. 8 24 WORKMEN'S COMPENSATION LAWS. had no knowledge of the fact that he had been loaned the origi- nal employer was liable. 61 Where a miner loaned to another company to assist in ex- tinguishing a fire, and while so engaged was subject to the con- trol of the latter company, it became his employer, even though his wages were not fixed, so that a claim for compensation was properly awarded against it. 62 An employer cannot transfer his employee to the employ of another employer so as to constitute the employee a special em- ployee of the latter, without the consent of the one transferred, with the understanding that he is submitting himself to the con- trol of a new master. So where a detective bureau furnished guards to a railroad company during a strike, an employee of the bureau, transferred without his consenting to become an em- ployee of the railroad company, was not a special employee of the railroad within the meaning of the compensation act so as to preclude him from bringing a common-law action for negli- gence of the railroad company. 63 A person to whom an employee is loaned temporarily becomes the employer even though the general employer may have an interest in the special work. 64 But there is a presumption that, in the management of a machine or appliance belonging to the general employer, the loaned employee is an employee of the general employer. 65 In a Michigan case it was held that a manufacturing company, which was installing a blow pipe system in another company's plant, was the employer of a man who was under its direction and control, even though he was paid by the other company. 66 61. Inmann v. Cochran, 38 N. J. L. J. 304; Jackson v. Erie Ry. Co. 86 N. J. L. 550, 91 Atl. 1035, 6 N. C. C. A. 944. 62. Tarr v. Hecla Coal Co., Pa. , (1920), 109 Atl. 224, 5 W. C. L. J. 904; Kucharuk v. McQueen, 221 N. Y. 607, 117 N. E. 1073; De Noyer v. Cavanaugh 221 N. Y. 273, 116 N. E. 992 63. Murray v. Union Ry. Co. of New York City, N. Y. A. , (1920), 127 N. E. 907, 6 W. C. L. J. 365. 64. Westover v. Hoover, 129 N. W. 285, 88 Neb. 201, 3 N. C. C. A. 471. 65. Emacli's Case, 232 Mass. 596, 123 N. E. 86, 4 W. C. L. J. 94; Modoc Co. v. Indus. Comm., 32 Cal. App. 548, 163 Pac. 685, 15 N. C. C. A. 280. 66. Arnett v. Hayes Wheel Co., 201 Mich. 67, 166 N. W. 957, 1 W. C. L. J. 1061, 18 N. C. C. A. 916. 114 WHO COMES UNDEB TiJE ACT. 24 Where A hired two men and the following day directed that one work for his father, the father was liable for injury to the workman notwithstanding the original hiring was done by A. 07 It has been held however that a caddie for a golf club, paid by the member whom he serves, is an employee of the club and not of the member he might be serving at the time of the accident. 68 The unauthorized exchange of jobs between two employees will deprive them of their right to compensation. 60 But where the exchange is authorized, the injured employee may recover from his regular employer. 70 Where a partnership sublet a portion of their contract on a building to a corporation, and, for the accommodation of the subcontractor, hired a man, who was never informed that he was in the employ of the corporation, the employee when injured may hold either the partnership or the corporation for compen- sation. 11 The owner of a chartered vessel, and not the charterer, is the employer of the captain of the vessel. 72 Where the duties of an employee are of a dual nature, in- cluding duties to his general employer as well as to his special employer, and he is injured while acting for his general employer he cannot claim compensation from his special employer when at the time of the injury he had departed from his duties to the special employer. So where a teamster was injured while water- ing his general employer's horse, during the time he was under 67. Smith v. Eichelberger, 176 111. App. 231. Consolidated Tire Works v. Koechl, 190 111. 145. 68. Clareraont Country Club v. Indus. Ace. Comm., 174 Cal. 395, 163 Pac. 209, 15 N. C. C. A. 448. 69. Sherr & Co. v. Indus. A. C. Cal. , 166 Pac. 318. 70. In re Maroney, Ind. App. , 118 N. E. 134, 15 N. C. C. A. 242. 71. Scott v. O. A. Hankinson & Co., 205 Mich. 358, 171 N. W. 489, 3 W. C. L. J. 759, 18 N. C. C. A. 917. 72. Norman v. Empire Lighterage and Wrecking Co., 2 N. Y. St. Dep. Rep. 480; Mackinnon v. Miller, 2 B. W. C. C. 64 Ct. of Sess., 46 Scotch I. R. 299. 115 25 WORKMEN'S COMPENSATION LAWS. the control of the special employer, it was held that he must seek compensation from his general employer. 73 25. Partnership as Employer. Few questions arise in ref- erence to partnerships as employers under compensation laws that cannot be decided by reference to the general statutes and decisions, relating to the law of partnership; though there are some questions relating to partnerships under compensation laws which are not so easy of determination. The question has been raised whether a member of a partnership is its employee and entitled to compensation when injured in the course of his em- ployment. In a California case it was decided he was not an em- ployee within the meaning of the compensation act even though at the time of his death he was working under an agreement with the partnership firm, whereby it paid him a stipulated price per day and expenses. 74 Ordinarily partners and co-adventurers in business do not sustain the relation of employer and employee, on the theory that no one can at once be both. 75 Where the de- ceased was employed by a partnership, one of whose members was his father with whom he lived, it was held that he was an employee of the partnership from which compensation might be demanded. 76 It has been held that an employee who has suffered disability cannot obtain compensation from one member of a partnership on the allegation that the individual defendant was the em- 73. Pigeon v. Employers Liab. Assn. Corp., 216 Mass. 51, 102 N. E. 932, 4 N. C. C. A. 516. 74. Cooper v. Industrial Ace. Com. (Gal.), Mar. 6th, 1918, 171 Pac. 684, 1 W. C. L. J. 899; Ellis v. Ellis & Co., 92 L. T. 718; 7 W. C. C. 97; Reinking v. Aetna Life Ins. Co., 3 Cal. Ind. Ace. Com. 82. Held in Britten v. Brit- ten et al., 5 Cal. Ace. Com. 187, that where he received wages irrespec- tive of profits he was an employee. But see Howard v. George Howard, Inc. (1916), 9 N. N. S. St. Dep. Rep. 355. 75. Ellis v. Ellis (1905), 1 K. B. 324, 7 W. C. C. 97; Boon v. Quance, 102 L. T. 443, 3 B. W. C. C. 106; In re C. E. Cooper, Vol. 1, No. 7, Bui. Ohio, Ind. Com. p. 180; Ferranti v. Kennedy, 1 Conn. Comp. Dec. 196; Shaw v. D. F. Foley, 1 Cal. Iiid. Ace. Com. (Part II), 629. 76. McNamara v. McNamara, 91 Conn. 380, 100 Atl. 31, A 1 W. C. L. J. 296, 15 N. C. C. A. 459; Rogers v. Rogers, Ind. App. , 122 N. E. 778, 18 N. C. C. A. 918, 4 W. C. L. J. 58. 116 WHO COMES UNDER THE ACT. 25 ployer. 77 A member of a co-partnership working under a sub- contract is an independent contractor, and not an employee of the general contractor. 78 A partnership contracted with a con- tractor to install certain machinery, and one of the partners was injured while helping to unload machinery billed to the contrac- tor. It was held that the partner was not an employee of the contractor, 79 but he was an employee when he received separate pay for such work. 80 A creditor assumed the management of the business of a part- nership for the purpose of securing himself and rehabilitating the firm. It was held that the partnership and not the creditor was the employer of the injured workman. 81 The contrary was held where an assignee for the benefit of creditors who took over the business for the purpose of winding it up and distributing its assets pro rata among all the creditors. 82 Where one contracted with a partnership for the use of a team and driver and the partnership sent one of its members and a driver, he was held to be an independent contractor and not an employee of the one who contracted for his services. 88 77. Dupre v. Coleman, 143 La. 69, 78 So. 241, 1 W. C. L. J. 982. But see Coady v. Igo, 91 Conn. 54, 98 Atl. 328, 15 N. C C. A. 457. Employees of individual partners cannot be added to employees of partnership to make five and bring the partnership under the Act. 78. Kasovitch v. L. R. Wattis Co., 2 Cal. Ind. Ace. Com. 357; But see Dyer v. James Black Masonry & Contracting Co., 192 Mich. 400, 158 N. W. 959; Rockefeller v. Indus. Comm. Utah (1921) 197 Pac. 1038. 79. Anderson v. Perew, 2 Cal. Ind. Ace. Com. 727. 80. Dyer v. James Black Masonry etc. Co., 192 Mich. 400, 158 N. W. 959; Mich. Act amended 1921, Part I, 7. 81. Maffia v. L. Aquilino, 3 Cal. Ind. Ace. 15; Zanotti Aquilino & Lagomarsino Co., 3 Cal. Ind. Ace. Com. 53; United States Fidelity & Guaranty Co. v. Ind. Ace. Comm. of Cal. 174 Cal. 616. 163 Pac. 1013, 15 N. C. C. A. 457. 82. Maffla v. L. Aquilino, 3 Cal. Ind. Ace. Com. 15. Held not an as- signment and partners liable. United States Fidelity, etc. Co. v. Indus- trial Ace. Com. 174 Cal. 616, 163 Pac. 1013. 83. Sayers v. Girard, 1 Cal. I. A. Dec. 352. But see Wood v. Tupptr Lake Chemical Co. (1916), 9 N. Y. St. Dep. Rep. 372. 117 26 WORKMEN'S COMPENSATION LAWS. Where an award was made against a husband and wife in California the award against the wife was dismissed, it being held that she was not a partner in her husband's business. 84 Where a man entered into a contract of hire with a partner- ship and thought he was working for the partnership, he was held to be an employee of the partnership, though he was in- jured while doing work for a subcontractor of the partnership. 85 26. Employers of Teamsters. When teamsters are perform- ing work directly connected with the business of the owner, no question arises, as they are then the employees of such owner. But where an owner of teams and wagons contracts with a third party to furnish team and teamster for a stipulated price per day for both to the third party, and the owner pays the teamster, but the third party exercises general control over him with ref- erence to his work but with no authority to discharge him from his general employment with the owner, it has been held by one line of decisions that the teamster is the employe of the owner and can obtain compensation alone from him, the court in one case holding the act "inapplicable to any relation of master and servant as generally understood at common law, other than that arising out of the contract between the master and the servant, whereby the servant engages to work for the master, and the master on his part engages to pay the servant for such work; in other words, that it is inapplicable to a condition of things where a servant employed by a master directly is re- quired, as part of his contract of employment, to work for some other person for a compensation payable not to the servant but to the immediate master." 86 84. Lezaa v. Ind. Comm., 170 Wis. , 175 N. W. 87, 5 W. C. L. J. 338. 85. Scott v. O. A. Hankinson & Co., 205 Mich. 353, 171 N. W. 489, 3 W. C. L. J. 759. 86. Rongo v. Waddington & Sons Inc. et al., 87 N. J. L. 395, 94 Atl. 408, 9 N. C. C. A. 402; Jones v. Liverpool, 14 Q. B. D. 890; Kirkpatrick v. In- dustrial Ace. Comm., 31 Cal. App. 668, 161 Pac. 374; Kellogg v. Church Charity Foundation of L. I., 203 N. Y. 191, 96 N. E. 406, 38 L. R. A. (N. S.) 481n, 3 N. C. C. A. 444; Pigeon v. Employers Liability Assurance Corporation, 216 Mass., 51, 102 N. E. 932, 4 N. C. C. A. 516; Dale v. Saunders, 218 N. Y. 59, 112 N. E. 571, 15 N. C. C. A. 454; In re Clancy, 118 WHO COMES UNDER THE ACT. 26 Another line of decisions hold that the third party is the special employer from whom alone the teamster can obtain com- pensation. The court in one of these cases remarked: "The principles of law which control in this class of cases are quite well settled. A servant in the general employment of one person, who is temporarily loaned to another person to do the latter 's work, becomes, for the time being, the servant of the borrower, who is liable for his negligence. But, if the general employer enters into a contract to do the work of another, as an indepen- dent contractor, his servants do not become the servants of the person with whom he thus contracts, and the latter is not liable for their negligence." 87 The court in this case, also approves the doctrine of the case of Schmedes v. Deffaa, 214 N. Y. 675; 108 N. E. 1107, rev'g 153 App. Div. 819, 138 Supp. 931, in which a livery stable keeper who had an order from an undertaker to furnish carriages for a funeral and not having a sufficient num- ber of his own applied to another liveryman for an additional carriage and driver.* The second liveryman sent a carriage and driver as requested. The court remarked that this clearly was 228 Mass. 316, 117 N. E. 347, 1 W. C. L. J. 87, 15 N. C. C. A. 454; Hunt v. N. Y., N. H. & H. R. R., 212 Mass. 102, 98 N. E. 787, 40 L. R. A. N. S. 778; Corliss v. Keown, 207 Mass. 149, 93 N. E. 143; Waldock v. Winfield, 2 K. B. 596; Hogan's Case, Mass. , (1920), 127 N. E. 892, 6 W. C. L. J. 321; Golden & Boter Transfer Co. v. Brown & Schler Co., Mich. , (1920), 177 N. W. 202, 6 W. C. L. J. 58; State ex rel. B. M. Gilmore Co. v. District Court of Hennepin Co., Minn. , (1920), 179 N. W. 216, 6 W. C. L. J. 697. 87. Hartel v. T. H. Simonson & Son. Co., 218 N. Y. 345, 113 N. E. 255; O'Neill v. Sperry Engineering Co., 1 Conn. Comp. Dec. 387; Gimber v. T. P. Kane Co., 2 N. Y. St. Dep. Rep. 475; Nolan v. Cranford Co., 4 N. Y. St. Dep. 337; Christiansen v. McLellan, 133 Pac. 434, 74 Wash. 318; Scribners Case, 231 (Mass.) 132, 120 N. E. 350, 2 W. C. L. J. 905; Arnett v. Hayes Wheel Co., 201 Mich., 67, 166 N. W. 957, 1 W. C. L. J. 1061; Dale v. Hyal Const. Co., 175 N. Y. App. Div. 284, 161 N. Y. S. 540, 15 N. C. C. A. 454; Nolan v. Cranford Co., 219 N. Y. 581, Aff'g. 171 N. Y. App. Div. 959, 155 N. Y. S. 1128; Schweltz v. Thompson & Morris Co. of N. J., N. Y. App. , (1920), 127 N. E. 904, 6 W. C. L. J. 365; In re Willis Hainer, 3rd A. R. U. S. C. C. p 97. Contra, see O'Boyle v. Parker Young & Co., Vt. , 112 Atl., 385, (1921). 119 26 WORKMEN'S COMPENSATION LAWS. a case where the first liveryman procured additional facilities for doing his own work, and it was held that the first liveryman was liable for the driver's negligence. Other decisions hold that the teamster may claim and obtain compensation from either or both, the owner, his general em- ployer, or the third party, his so-called special employer in whose work the teamster is injured. 88 Again it has been held that where the teamster sues the third party, his so-called special employer, for damages at common law on account of the latter 's negligence the court will dismiss the case for lack of jurisidiction for the reason that the teamster must make his claim if any under the Compensation Act. 89 There is likewise considerable conflict in the decisions in cases where the owner of teams drives one of them himself. It being held in some jurisdictions that he is the employee of the person thus employing him and his teamsters, 90 but he himself was the employer of his teamster. 91 In other jurisdictions it is held that he is not an employe, but an independent contractor and also a casual employee. 92 It has also been held that a workman is not an employee of the foreman of a general employer just because at 88. De Noyer v. Cavanaiigh, 221 N. Y. 273, 116 N. E. 992, Aff'g, 177 N. Y. App. Div. 939, 163 N. Y. Supp. 1114, 114 N. E. 1074; Employers' Liability Assur. Corp. v. Ind. Ace. Comm. of Cal., 177 Pac. 273, 3 W. C. L. J. 407. 89. Lee v. Cranford Co., 182 App. Div. 190, 169 N. Y. S. 370, 1 W. C. L. J. 854, 16 N. C. C. A. 406. 90. Walters v. McGovern, 4 N. Y. St. Rep. 361; Rider v. Little Co. (Mich.) Ind. Ace. Bd. Apr. 1913; Mantz v. The Faulk Co., Fourth Annual Rep. (1915) Wis. Ind. Com. 15; Seward v. Sunset Trading Co., 3 Cal. Ind. Ace. Com. 49; Fiorio v. Ferrie, 1 Conn. Comp. Dec. 459; Tuttle v. Emburg- Martin Lumber Co., 192 Mich. 385, 158 N. W. 875; Centrellos Case, 232 Mass. 456, 122 N. E. 560, 3 W. C. L. J. 740. 91. Stevens v. Tittle, 2 Cal. Ind. Ace. Com. 145. But see also, Western Indemnity Co. v. Pillsbury, 172 Cal. 807, 159 Pac. 721. 92. Cheevers v. Fidelity & Dep. Co., 1 Mass. Ind. Ace. Bd. 365, 219 Mass. 244, 106 N. E. 861; Ryan v. County Council of Tipperary (S. R.) 48 Ir. L. T. 69, 5 B. W. C. C. 578; See v. Leidecker, 152 Ky. 724, 154 S. W. 10; Little v. Hackett, 116 U. S. 379, 29 L. Ed. 652. In Chisholm v. Walker (1909), 46 Scotch L. R. 24, 2 B. W. C. C. 261; Sayers v. Girard, 1 Cal. I. A. C. 352. 120 WHO COMES UNDER THE ACT. 26 the time he was injured he happened to be driving a team that was owned by the foreman. 93 "The relator's husband, Charles Jacobson, was employed by Minneapolis. He was driving a sprinkling wagon. He furnished his team and the running gears of the wagon. The city furnished the tank. He kept the sprinkler in the rear of his house and stabled his horses in his barn on his premises and fed and cared for them at his own expense. He worked eight hours a day commencing at 8, and quitting at 5, with an hour off at noon, and received for his services and the use of his team and wagon $6 per day. On the day of his injury he had finished his day's work, and gone home and stabled and fed his horses, and had eaten his supper. After supper he went to the stable to doctor one of his horses which had a sore neck. While he was so en- gaged the horse killed him. * * * "The facts stated give no right to compensation. The plaintiff's work for the day was done. He was not to do service for the city until the next morning. The horses were his and he fed and cared for them and furnished them and his wagon ready for work at a definite time. The accident did not arise out of his employment any more than would an accident which came while he was repairing his wagon or while doing other work in preparation for his next day's work for the city. The relator cites cases where a teamster, in- jured while caring for his horses after their work for the day was done was allowed compensation. Smith v. Price, 168 App. Div. 421, 153 N. Y. Supp. 221; Costello v. Taylor, 217 N. Y. 179, 111 N. E. 755; Suburban Ice Co. v. Industrial Board, 274 111. 630, 113 N. E. 979. They involve situations where a teamster was doing work for his employer in the care of his employer's team and as a part of the work for his employer." 95 Claimant a garbage collector was injured as a result of his horses becoming frightened while he was taking his horses and equipment back to the barn to his immediate employer. Claim- 93. Yolo Water ft Power Co. v. Ind. Ace. Com. 35 Cal. App. 14, 168 Pac. 1146. 95. State ex rel. Jacobson v. Dlst. Court of Hennepin Co., 144 Minn. 259, 175 N. W. 110, 5 W. C. L. J. 288. 121 26 WORKMEN'S COMPENSATION LAWS. ant's immediate employer Boadi was not subject to the provisions of the compensation act. In holding that he was entitled to compensation for an injury arising out of and in the course of the employment the court said: "Boadi was not subject to the provisions of the Compensation Act, and that act provides (Stats, sec. 2394 3) that an employer subject to the provisions of the act shall be liable for compensation to an employee of a contractor or subcontractor under him who is not subject to the act in any case where such employer Avould have been liable for compensation if such employee had been working directly for such employer. The city of Milwaukee is subject to the pro- visions of the act, and this provision plainly made the claimant here the employee of the city while carrying out Boadi 's con- tract with the city to the same extent that he was an employee of Boadi so far as the purposes of the Compensation Act are concerned. So there can be no doubt of the existence of the re- lation, of employer and employee within the meaning of the Compensation Act at the time of the accident. That the -claimant was then performing service growing out of and incidental to his employment seems equally beyond doubt. He was taking the garbage collection equipment, part of which belonged to the city, to its usual place of storage and care so that it should be ready for the work of the following day. We can hardly con- ceive of a service which grows out of and is incidental to his employment as a garbage collector if this is not such a ser- vice." 96 Where a garbage collector for a city, hired teams and team- sters and sent them out to collect garbage for the city, and "one of the teamsters was injured while returning to his general em- ployer's barns after completing his days work for the city, the court, held that he must look to his general employer, and not the city, . for compensation, saying : where a horse and wagon has been let by the general employer into the service of another, the driver is subject to the control, and therefore is the agent 96. City of Milwaukee v. Fera (1919) 174 N. W. 926, 5 W. C. L. J. 336; In re Cornerford, 229 Mass. 573, 118 N. E. 900, 1 W. C. L.* J. 793. 122 WHO COMES UNDER THE ACT. 27 of his general employer as to the care and management of the horse. 97 27. Employer of Less than Stated Number of Employees. The following provision with slight variations is phrasiology and number of employees is typical of nineteen American Com- pensation Acts: "If the employer has less than five employees regularly employed in his business the act. . . .shall not ap- ply to such employment unless such employees and their em- ployers voluntarily elect in the manner herein specified to be bound by this act." Changing conditions in an employers business makes it diffi- cult of determination at times whether an employer, has five or more employees regularly employed in his business, and .there- fore under the act, or less than five and not under the act. It has been held that the employees of a partnership could not be added to the number of the employees of an individual member of the partnership, so as to bring the individual member and his employees under the act ; 98 that musicians furnished by a leader, twice each week, to play in an amusement park, the leader stipulating the amount of compensation they were to receive, were regular employees of the park and could be counted in de- termining whether the employer had five or more; 99 that the phrase "having regularly less than five employees" refers to the number of employees actually on a job, or in the service of an employer at the time of the injury; 1 that an employer who en- deavors to evade liability under the act by temporarily loaning one of his employees, so he has less than five will still be con- sidered under the act ; 2 that a farmer who does not regularly 9J. Mackey v. City of New York, 184 N. Y. S. 495 (1920). 7 W. C. L. J. 117. 98. Coady v. Igo, 91 Conn. 54, 98 All. 328; Sullivan v. Pitgerald, Conn. Comp. Dec. Oct. 26, 1916. 99. Boyle v. Mahoney & Tierney, 92 Conn. 404, 103 All. 127, 1 W. C. L. J. 937, 18 N. C. C. A. 905. 1. Garde v. Chaplin, 1 Conn. Comp. Dec. 607; Regnier v. Rand, 98 N. H. 108 Atl. 810, 5 W. C. L. J. 559. 2. Grtschuck v. S. Borden 6 Co., 1 Conn. Comp. Dec. 633. 123 27 WORKMEN'S COMPENSATION LAWS. employ four or more men is not an employer, within the meaning of the Wisconsin Act, because he temporarily, at more or less temporarily recurring times, employed four or more men for specific work; 3 that a corporation which owns and operates a saw mill, which is not in operation on all the working days of the year, but when in operation requires five or more employees to operate it, is an employer having regularly five or more em- ployees, within the meaning of the Ohio Act.* While it has been held that where a coal wagon driver hires a passerby to help him move his mired wagon, the passerby who was injured in this work was entitled to compensation from the employer of the coal wagon driver, in that his work was part of the usual business of the employer, 5 but he could not properly be .counted and considered as the fifth employee or as one "regular- ly employed" in the employer's business, so as to bring the em- ployer under the act, when he had but four other employees. Whether officers of a corporation could be counted to make up the required five or more employees within the meaning of the act would depend on the facts of the particular case, whether they were actually regularly employed in the usual course of the business of the corporation. Assuming for the sake of the ex- ample that an act is limited in its application to employers of five or more employees. The fact that an employer regularly em- ployed six men in his usual business, two of who rejected the act, would not in the author's opinion, exempt the employer from the operation of the act as one who has less than five em- ployees, though if an employer has four men employed in his usual business and employs another whose average annual earn- ings exceed three thousand dollars or other stated amount men- tioned in several acts as exempting an employee from its opera- tion, the employer would not then, according to the language of some acts, be presumed to be under them, as a person whose average annual earnings exceeds the stated amount, is as a rule 3. Kelly v. Haylock, 163 Wis. 326; 157 N. W. 1094; 11 N. C. C. A. 382. 4. Clements v. The Columbus Saw Mill Co., 1 Bui. Ohio Ind. Comm. 161. 5. State v. Ramsey & Co., 138 Minn. 416, 165 N. W. 268. 124 WHO COMES UNDER THE ACT. 27 not considered an employee for the purposes of the acts, and the employer would not have five employees within the meaning of the act, as for example 8 of the North Dakota Act, 1921. In the determination of this question it is, however, nece&sary to examine carefully the specific provisions of the various acts. In the determination of the question of whether a city lighting plant in Kansas employed the required number of men to bring it within the act it was held that the required number of fifteen could not be made up by including mere clerical employees in the office of the city clerk. The court said: "It is not within the letter or spirit of this statute that clerical employes like the clerk and stenographer in the city clerk's ofiBce should be in- cluded within the list of those engaged in the hazardous enter- prise of operating an electric light and waterworks system. 7 An employer of less than five employees will not come under the operation of the act by reason of the fact that he is engaged in drilling an oil or gas well since the oil or gas well is not a mine, within the meaning of the provision extending the effect of the act to mines irrespective of the number of workmen em- ployed. 8 Where it appears that a company, which is being sued for per- sonal injuries by its servant, employs more than five servants, it is subject to the Texas Workmen's Compensation act, whether as a matter of fact it had really become a subscriber or not, and consequently cannot plead assumption of risk. 9 Where a brick manufacturer operated a silica bed in con- nection with his brick business, and who employed more than four employees, he was liable for the death of a silica miner, al- though fewer than the stated number of employees were en- gaged at the silica bed, since more than the stated number were 7. Udey v. City of Winfleld. 97 Kan. 279, 155 Pac. 43. 14 N. C. C. A. 943. 8. Hollingsworth v. Berry, Kan. , (1920), 192 Pac. 763, 6 W. C. L. J. 676. 9. Wichita Falls Motor Co. v. Meade, Tex. Civ. App. , 203 8. W. 71, 2 W. C. L. J. 135. 125 28 WORKMEN'S COMPENSATION LAWS. regularly employed in the same business or in common employ- ment. 10 A teamster having more than five employees comes within the act notwithstanding all of the teamster's employees were not working at the same job but worked on various different jobs. 11 28. Regularly Employed and Usual Business of Employer. The phrase "regularly employed in the employer's business" and the phrase "usual business of the employer" appears in con- nection with slightly varying phraseology in the compensation act of many states. "There are few words more current in our speech than the word 'business,' few that include a greater variety of subjects and yet none which in popular speech, have greater or more marked singleness in denotement. When one's business is the subject of common speech, no one can be in doubt as to the reference. It would be a very exceptional person we do not know how to otherwise describe him who would not understand that the reference is to be the habitual or regular occupation that the party was engaged in with a view to winning a livelihood or some gain. These objects are necessarily implied when one's business is spoken of. Eliminate livelihood and gain, and it is 110 longer business, but amusement, which no one confounds with business. What we have said as to the popular understanding of the word business is just what Webster defines it, 'Some particular occupation or employment habitually engaged in for livelihood or gain.' In the case quoted from, the defendant, a married woman, re- sided with her husband in a house which she owned, and in the course of remodeling the house she employed the claimant to do some plastering, which would require about two days to complete. Claimant had been at work a few hours, when he was injured by the fall of a scaffold. In holding that defendant was not en- 10. Indus. Comm. v. Funk, Colo. , (1920), 191 Pac. 125, 6 W. C. L. J. 436. 11. Colbourn v, Nichols Del, , (1920), 109 Atl. 882, 6 W. C. L. J. 140. 126 WHO COMES UNDER THE ACT. 28 gaged iii 'business,'* as contemplated by the Compensation Act, the court further said: "The points of difference between the employment the defendant was engaged in and the business which is contemplated by the act and understood in common parlance, are so marked that the two cannot be confounded; one cannot be the equivalent of the other. The defendant's employment was not in any way dependent on patronage; it had not for its object profit or gain, but simply her own personal gratification and comfort; it was not regular or habitual, but it terminated with the completion of the one thing that engaged her attention at Ilio time. ;uul there is not the slightest indication that she con- templated resuming or doing a life service for another, nor indeed that she had ever attempted anything of the kind before." 12 "The term 'business,' in common parlance, means that em- ployment which occupies the time, attention and labor." 13 Referring to the word "business" as used in the Minnesota Act, the Supreme Court of that State said: "Assuming that the lease obligated defendant to erect a shelter for his tenant's stock, or that he had voluntarily agreed so to do, we may say, in a certain ense. that the erection became his business or duty. But that cannot be the meaning of the word 'business' in this statute. It must have the same general significance with respect to the work or calling of the employer as the words 'trade, profession, or occupation,' hence must refer to the employer's ordinary vo- cation, and not to every occasional, incidental, or insignificant work he may have to do. When we speak of a person's trade or profession, we generally refer to that branch of the world's activites wherein he expends his usual everyday efforts to gain a livelihood." 14 In constructing a sewer, a city is not engaged in an enterprise involving any element of gain or profit, and such work is not within the Kansas Act on that account. 15 12. Marsh v. Groner, 258 Pa. 473, 102 Atl. 127, 2 W. C. L. J. 134. 13. Stephenson v. Primrose, 8 Porter (Ala.) 155, quoted with approval in Adam v. Musson, 37 111. App. 501. 14. State ex rel. Lennon v. District Court of Douglas County .138 Minn. 103. 164 N. W. 366. 15. Roberts v. Ottawa, 101 Kan. 228, 165 Pac. 869; Redfern v. Eby. - Kan. , 170 Pac. 800. 127 28 WORKMEN'S COMPENSATION LAWS. The harvesting of ice by a farmer for farm purposes, and not as a business or for pecuniary gain, is not within the New York Act. 16 The term "gain or profit," as used in the Nebraska Act. means pecuniary gain. 17 Considering the meaning of the term "usual course," the Supreme Court of Minnesota has said: "The words 'usual course' must be regarded as more restrictive than the language employed in the Connecticut and English Acts. This is the view taken by the California courts in London and Lancashire, etc., Co. v. In- dustrial Comm., 173 Cal. 642, 161 Pac. 2, and La Grande Laundry Co. v. Pillsbury, 173 Cal. 177, 161 Pac. 988. * * * The Su- preme Court of Illinois, in construing the clause 'the usual course of trade, business, profession, or occupation of the employer/ in Uphoff v. Industrial Comm, 271 111. 312, 111 N. E. 128, L. R. A. 1916E, 329, held that an injury received by a workman hired by a farmer to erect a broom corn shed on his farm was not re- ceived in the usual course of business of the employer. The Illi- nois Act differs from ours, in that an employee is excluded from the benefits of the law if the employment is casual or if the in- jury did not occur in the usual course of the employer's trade, etc. But the meaning of the latter clause is not affected by the conjunction, which serves merely to show the relation to what precedes," 18 One employed by a paper bag company to install an engine, was not within the New York Act, as the employer was not engaged in the business of installing machinery. 19 The owner of a hotel 16. Mullen v. Little, 186 App. Div. 169, 173 N. Y. Supp. 578. 17. Ray v. School Dist. of Lincoln, in Lancaster County, Neb. , (1920) 181 N. W. 140; Rooney v. City of Omaha, Neb. , (1920), 181 N. W. 143; Allen v. State, 173 App. Div. 455, 160 N. Y. S. 85; Redfern v. Eby, 102 Kan. 484, 170 Pac. 800; Gray>. B.oard of Comm. of Sedgwick Co., 101 Kan. 195, 165 Pac. 867, L. R. A. 1918P, 182; Sexton v. Pub Service Comm. 180 App. Div. Ill, 167 N. Y. S. 493. 18. State ex rel. Lennon v. District Court of Douglas County, 138 Minn. 103, 164 N. W. 366. 19. McNally v. Diamond Mills Paper Co., 178 App. Div. 342, 164 N. Y. Supp. 793; Dose v. Moekle Lithographic Co., 179 App. Div. 519, 165 N. Y. Supp. 1014. 128 WHO COMES UNDER THE ACT. 28 is not pursuing his business within the meaning of the Compen- sation Act, when he causes rooms to be occasionally painted and decorated, though it is usual to have work of that nature done from time to time. 20 A foreman constructing a cottage for employees of a large cor- poration constantly employing carpenters on its buildings was held to be employed in the "usual course" of the business of the employer.* 1 AVhere an employee was engaged in trimming trees for his employer, an electric company, under directions of the company's agent, which he had been hired to do, the work was held not to be casual or outside the usual course of the trade, business, profession or occupation, though the company may have no interest in trimming the particular tree on which the employee was working at the time of the injury. 22 An employee injured while repairing a clamshell dredge, which his employer intended to sell was not injured- in the course of his employers business of leasing roadmaking machines. 23 Thought a man em- ployed for an emergency job, loading ice upon a refrigerator car, the work to last a few hours, is a casual employee, he is within the protection of some acts where the work is the regular business of the employer. 24 Employments which are both "casual and not incidental to the operation of the usual business of the employer" are not com- pensable. As where a machinist was hired by a farmer to re- 20 Holbrook v. Olympia Hotel Co., 200 Mich. 597, 166 N. W. 876, 1 W. C. L. J. 1076; La Grande Laundry Co. v. Pillsbury, 173 Cal. 777, 161 Pac. 988; See Walker v. Ind. Ace. Comm.. 177 Cal. 737, 171 Pac. 954, 2 W. C. L. J. 29. 21. Miller v. Ind. Ace. Comm., 32 Cal. App. 250, 162 Pac. 651. 22. In re Howard, 218 Mass. 404. 105 N. E. 636. 23. Stanbury v. Ind. Ace. Comm., 36 Cal. App. 68. 171 Pac. 698, 1 W. C. L. J. 925 24. Paul v. Nikkei, 1 Cal. I. A. C. Dec. 648, 11 N. C. C. A. 375; Shouler v. Greenburg. 1 Cal. I. A. C. Dec. 146; Cowles v. Alexander & Kellogg. 2 Cal. I. A C. Dec. 615; English v. Cain. 2 Cal. I.A.C. Dec. 376; McDermott v. Fanning, 3 Cal. I. A. C. Dec. 14; Brain v. Eisf elder. 2 Cal. I.A.C. Dec. 30; Walker v. Ind. Ace. 177 Cal., 737. 171 Pac., 954, 2 W. C. L. J. 29; Johnston v. Monasterevan General Store Co., (1908), 42 Irish L. T. 268; 2 B. W. C. C. 183; Blyth r. Sewell, (1909), 2 B. W. C. C. 478. 129 W. C. 9 28 WORKMEN'S COMPENSATION LAWS. pair a tractor used in plowing and was injured before he had finished the work ; 25 or where a carpenter was injured while con- structing a small chicken house on land being set out to lemon trees, the business of the employer being horticulture and the job being finished within four days; 20 where a rooming-house keeper employed a plasterer for a period of less than one week to plaster certain rooms in the house the employment was con- sidered both casual and not in the usual course of the business of the employer. 27 A retired physician conducted a farm for profit. The swaying of some trees shook the roots and thereby the wall of a building on his property. He employed a man to top the trees. It was held, that it was for the purpose of the employers trade or business, and therefore under the act. 28 The fact that the cause requiring the employment is unusual and extraordinary does not prevent the employment from being in the usual course of the employer's business as where a rancher hires men to fight a fire to save the grass on his range, 29 or an automobile mechanic who is present at a race on Sunday to re- pair his employer's cars if necessary, 30 or the fact that the em- ployer was injured in the construction of a building, which was being Constructed to house coal, the handling of which was to be 25. Maryland Casualty Co. v. Pillsbury, 172 Cal. 748, 158 Pac. 1031; Roberts v. Indus. Ace. Comm., Cal. , 1921, 197 'Pac. 978. 26. Brockman v. Sheridan, 2 Cal. I. A. C. Dec. 1061; Sutton v. Rabinowitz, 5 Cal. Ind. Com. Rep. 29; Geller v. Rep. Novelty Works, 168 N. Y. S. 263, 180 App. Div. 762. 27. Augustine v. Cotter, 2 Cal. I. A. C. Dec. 49; Trenholm v. Hough,-! Cal. I. A. C. Dec. 260; Casterlotts v. McDonnell, 1 Cal. LA. C. Dec. 351; Blood v. Ind. Ace. Com. of Colip, 157 Pac. 1140; Holbrook v. Olympia Hotel Co., 200 Mich. 597, 166 N. W. 876, 1 W. C. I* J. 1076; Solomon v. Bonis (N. Y.), 168 N. Y. S, 676, 1 W. C, L,. f f 687. - 28. Cotter v. Johnson, 45 Ir. L. T, 259, 5 B. W.-C. C. 568 ; Tombs v. Bomford, 6 B. W. C. C. 338; Thompson v. Twiss, 90 Conn. 444, 97 Atl. 328; Lyman v. Lobu and Barrow, 5 Ind. Com, Cal., 46; Evans v. Bay City Garage Corp., 5 Cal. Ind. Com., 122; -Smyth .v. Sm 30. Frint Motor Car Co. v. Ind. Comm., Wis. , 170-N. W. 285, 3 W. C.-L. J. 399. - .-- . - - -"- WHO COMES UNDER THE ACT. 28 undertaken in addition to the employer's regular course of busi- ness.* 1 The California, Connecticut, Iowa, Minnesota, British and Missouri acts are alike in that a casual employee may be under the act if his work is part of the usual business of his employer, but if both casual and not in the usual business of the employer the employee is not under the act. The court in a Minnesota case said: "The language of the statute leaves no room for construc- tion. Though casual, if the employment is in the usual course of the business of the employer, the compensation act applies. The Minnesota Act is in this 1 respect modeled on the British Work- men's Compensation Law, which has been similarly construed . . . Part of the business of a municipal corporation is the im- provement and repair of its public streets. Respondent, when injured, was an employee of the relator and engaged in this work. The compensation act applies." 82 One employed to clean house in a large lodging house was held to be engaged in the usual course of business, . though the em- ployment was casual. The court said, "But the intermittent character of the employment is not of itself sufficient to exclude it from the purview of the statute, section 14 does not except em- ployments that are casual only but those that are both casual and not in the usual course of the business." 33 The acts of some of the states provide that if the employment is "casual or not in the trade or business of the employer" it is exempted. In these jurisdictions, it is held that if an employ- ment is casual, that alone excludes it from the act and the fact that it is in the usual course of the employer's business is iin- 31. State ex rel. Lundgren v. Dist. Court Washington County, 141 Minn. 83, 169 N. W. 488, 3 W. C. L. J. 159, 18 N. C. C. A. 139. 32. State ex rel. City of Northfield v. Diet. Court of Rice Co., 155 N. W. 103, 11 N. C. C. A. 366; State v. Ramsey Co., 138 Minn. 416, 165 N. W. 268, 1 W. C. L. J. 642; Hill v. Begg, 2 K. B. 802. 1 B. W. C. C. 320; Cotter v. Johnson. 5 B. W. C. C. 568; Smith v. Buxton, 84 L. J. K. B. 697, 11 N. C. C. A. 383; But see McLoughin v. Ind. Ace. Com., 34 Cal. App. 739, 168 Pac. 1065. 1 W. C. L. J. 497. 33. Walker v. Ind. Ace. Comm. 177 Cal. 737, 171 Pac. 954, 2 W. C. L. J. 29, 18 N. C. C. A. 140. 131 29 WORKMEN'S COMPENSATION LAWS. material, 34 or if it is not in the usual course of the employers business it is immaterial whether or not it is casual. 35 A carpenter employed in the construction of a silo upon a dairy farm was held to be employed in dairy labor within the meaning of the California act, and such labor was in the regular course of the employer's business. 36 The owning and renting of houses as an investment is not a ' ' business ' ' within the meaning of the California act. 37 The owner of a department store, who employs a number of carpenters regularly about the store and maintains a carpenter shop in the building, while engaged in a non hazardous business in the conduct of the. store, is in so far as the carpenters are con- cerned, conducting a hazardous business and they are entitled to compensation. 38 29. Casual Employments and Regularly Employed in Usual Business of Employer. There are few states whose acts do not exclude casual employment. The term casual employment, when it appears in the act in the conjunctive with " usual business of the employer" is not as significant and is not the subject of so much contention and varying construction as has arisen over it in those states where casual employments are exempted from the compensation act, regardless of whether or not they are in the usual course of the employer's trade or business. Under the 34. King's Case, 220 Mass. 290, 107 N. E. 959; In re, Gaynor, 217 Mass. 86, 104 N. B. 399, L. R. A. 1916A, 363 and note; Sabella v. Brazil- ere, 86 N. J. L. 505, 91 A. 1032; Baer's Exp. etc., Co. v. Ind. Bd., 282 111. 44, 118 N. E. 412, 1 W. C. L. J. 512; Western Union Tel. Co. v. Hickman (C. C. A.) 248 Fed. 899, 2 W. C. L. J. 8; Thede Bros. v. I n d. Comm. (111.) 3 W. C. L. J. 242, 121 N. E. 172, Nebr. 3656, 106. 35. Packett v. Moretown Creamery Co. (Va.) 99 Atl. 638; Walker v. Ind. Ace. Com., 177 Cal. 737, 171 Pac. 954; Shafter Estate Co. v. Ind. Ace. Com. of Cal., 166 Pac. 24; Fields v. Wright, et al., 5 Cal. Ind. Comm. 224. 36. Globe Indemnity. Co. v. Ind. Ace. Comm., Cal. , 187 Pac. 452, 5 W. C. L. J. 486. 37. Lauzier v. Ind. Ace. Comm., Cal. App. , 185 Pac. 870, 5 W. C. L. J. 356. 38. Alterman v. A. I. Namm & Son, 190 N. Y. App. Div. 76, 179 N. Y. S. 584. 5 W. C. L. J. 426. 132 WHO COMES UNDER THE ACT. 29 former type of act the important question to determine is whether the particular employment is in the course of the employer's business. It if is, it is covered by the act and it is immaterial whether or not the employment is casual. The construction that has been placed upon this term in various jurisdictions will be of some value here in that it is in a sense the antonym of the phrase "regularly employed," as used in many acts. Its contruction will therefore throw some light on this latter phrase that will assist in determining whether an employer has five or more employees "regularly employed" and is -inder the act, or whether some of his employees are casual so that the total number of his properly to be counted employees is less than five. Webster defines "casual" as "happening without design and unexpectedly, coming without regularity, occasional." It is defined in a New Jersey decision as follows: "The ordinary meaning of the word 'casual' is something which happens by chance and an employment is not casual that is, arising through accident or chance where one is employed to do a particular part of a service recurring somewhat regularly with the fair expectation of its continuance for a reasonable period." 38 As illustrative of the distinction between the wording of the acts in respect to casual employment, under the Massachusetts Act no one whose employment is "casual" can recover compen- sation, while, under the British Act, and all acts containing similar provisions, one whose employment is "of a casual nature" comes within the acts, provided it is for the purpose of the employer's 39. Sabella v. Brazelerio, 86 N. J. L. 505, 91 All. 1032, 6 N. C. C. A. 958. See, also. Dyer v. James Black Masonry & Contracting Co., 192 Mich. 400, 158 N. W. 959; Dewhurst v. Mather. 2 K. B. 754, 1 B. W. C. C. 328; Aurora Brewing Co. v.Ind. Board, 277 111. 142, 115 N. E. 207; Chicago G. W. Ry. v. Ind. Com., 284 111. 573, 120 N. E. 508, 18 N. C. C. A. 132. 3 W. C, L. J. 15; Carter v. Industrial Ace. Comm., 34 Cal. App. 439. 168 Pac. 1065. 1 W. C. L. J. 497; Sales v. Abbott W. C. & Ins. Rep. would not leave surviving him "beneficiaries or heirs" to whom a pension would be payable from a fund to which the city had contributed. "Whether or not a person is an employee within the meaning of the Workmen's Compensation Act must be determined from the situation existing during his lifetime. If during his lifetime deceased was not an employee of the city of Chicago within the meaning of the Workmen's Compensation Act, and not entitled to receive compensation under its terms, he cannot become an employee after his death. The fact that deceased died leaving no one surviving entitled to receive a pension under the Firemen's Pension Fund Act, could not, ipso facto, after his death bring the deceased within the provisions of the act from which he was ex- eluded during his lifetime." 96 Where a city employee was injured he must show in his dec- laration that the defendant was operating under the Illinois Act, and that he was engaged in a class of work which was haz- ardous, for there is no presumption that he comes under the act. 97 37. Independent Contractors. Whether one is an em- ployee or an independent contractor is often a close question and one of importance, because independent contractors are not en- 96. City of Chicago v. Indus. Comm., 111. , (1920), 127 N. E. 351, 6 W. C. L. J. 142; State ex rel. Fletcher v. Carroll, 162 Pac. 593, Wash. , B 1 W. C. L. J. 1611. 97. Obrien v. Chicago City Ry. Co., 111. , (1920), 127 N. E. 389, 6 W. C. L. J. 144. See 3, 111. Act. Am. 1921. 158 WHO COMES UNDER THE ACT. 37 titled to compensation benefits from their principals, as they are not generally covered by the compensation acts, 98 except, if at all, in the capacity of employers. The common law decisions on this question are of as much weight and authority as the decisions of courts and commissions in cases where the question arises out of claims for compensation. It was expressly held in an Ohio decision that the law of inde- pendent contractors was in no wise changed by the enactment of the Compensation Act," which may be generally considered to be true. The questions to be determined, in deciding whether one is an independent contractor or an employee, are: "Who lias the general control of the work? Who has the right to di- rect what shall be done? Who shall do it and how it shall be done? If the answer to these queries shows that this right re- mains in the employer, the relation of the independent contractor does not exist between the contractor and the employer. On the other hand, if the employer has not this privilege it does exist." 1 It has also been said that, "the test of an independent con- tractor is that he render service in the course of independent occupation, following the employer's desire in results 2 but not in means; but the employer's authoritative control is to be dis- tinguished from mere suggestions as to detail, or necessary co- operation where the work is part of a larger undertaking." 3 98. State ex rel. Virginia & Rainy Lake Co. v. Dist. Court of St. Louis, 128 Minn. 43, 150 N. W. 211, L. R. A. 1916a, n. 247, 7 N. C. C. A. 1076, 970; Columbia School Supply Co. v. Lewis, 63 Ind. App. 386, 115 N. B. 103; Cinofsky v. Indus. Comm., 290 111. 521; Tsangournas v. Smith, 171 N. Y. 8. 25, 17 N. C. C. A. 698. 99. Buddinfcer v. Champion Iron Co., Vol. 1 No. 7, Bui. Ohio Indus. Com. p. 70: Norton v. Day Coal Co., Iowa , (1920), 180 N. W. 905; Kelley's Dependents v. Hoosac Lbr. Co., Vt. , 1921, 113 Atl. 818. 1. Mason & Hodge Co. v. Highland, (Ky.) 116 S. W. 320; Tuttle v. Em- bury-Martin Lumber Co., 192 Mich. 385, 158 N. W. 875; 26 Cyc. 970, 15 N. C. C. A. 496; Strieker v. Indus. Comm., Utah , (1920), 188 Pac. 849, 5 W. C. L. J. 920. 2. Kelley v. Delaware. L. & Western R. Co., Pa. , 113 Atl. 419. 3. Thompson v. Twiss, 90 Conn. 444, 97 Atl. 328, 15 N. C. C. A. 487; Western Indemnity Co. v. Pillsbury, 172 Cal., 807, 159 Pac., 721; Pace v. Appanoose Co., 184 la. 498. 168. N. W. 916, 2 W. C. L. J. 884; Franklin Coal A Coke Co. v. Indus. Comm., 111. , (1921). 129- N. E. 811. 159 37 WORKMEN'S COMPENSATION LAWS. Each case must be determined on its own facts and ordinarily no one feature of the relation is determinative, but all must be con- sidered together. 4 It would, however, appear safe to say that one indispensable element to his character as an independent contractor is that he must have contracted to do a specific work and have the right to control the mode and manner of doing it. 5 Other cases hold that the vital factor to establish the status of employer and em- ployee as distinguished from principal and independent contractor is that of direction and control, another case, that one who con- tracts to do or get done certain work at a fixed price is not a work- man within the meaning of the Compensation Act. 7 Courts will sometimes disregard the contract and depend en- tirely upon the conduct of the parties in order to determine their relation, 8 especially is this true if the contract appears to be only a colorable arrangement to enable the master to evade liability to a servant for failure to perform a duty imposed by law, 9 however. 4. McCoy v. Kirpatrick, 1 Gal., I. A. C. Dec. 599; Wewinski v. Vite, 1 Conn. Comp., Dec. 629. 5. Powley v. Vivian & Co., 169 N. Y. App. 170, 154 Supp. 426, 10 N. C. C. A. 835. Citing Alexander v. R. A. Sherman Sons Co., 86 Conn. 292, 85 Atl. 514; Hexamer v. Webb, 101 N. Y. 377, 4 N. E. 755; Cunningham v. International Ry. Co., 51 Texas 503; Andrews v. Boedecker, 17 111., App. 213; Indiana Iron Co. v. Gray, 19 Ind. App. 585, 48 N. E. 803; Parrott v. Chicago Great Western Ry. Co., 127 Iowa 419; 103 N. E. 352; Williams v. National Register Co., 157 Ky. 836; 164 S. W. 112; Smith v. State Work- men's Ins. Fund, 262 Penn. 286, 105 Atl. 90, 3 W. C. L. J. 374; Kelly's Dependents v. Hoosac Lbr. Co., Vt. , (1921), 113 Atl. 818. 6. Hart v. Mammoth Copper Mining Co., 1 Cal. Ind. Ace. Com. (Part I), 77; State ex rel. Va. & Rainy Lake Co. v. District Court of St. Louis Co., 128 Minn, 43, 150 N. W. 211, 7 N. C. C. A. 1076; Kasovitch v. Wattis Co., 2 Cal. lud. Comm. 357; Pottcrrf v. Fidelity Coal Mining Co., 122 Pac. 120, 86 Kan. 774; Chicago R. I. & P. Ry. Co. v. Bennett, 128 Pac. 705, 36 Okla. 358; Johnson v. Carolina C. & O. R. Co., 72 S. E. 1057, 157 N. C. 382; Robideaux v. Herbert, 118 La. 1089, 43 So. 887; Linton v. Smith, 8 Gray (Mass.) 147; Richmond v. Sitterding, 43 S. E. 562, 101 Va. 354, 99 Am. St. Rep. 879, 65 L. R. A. 445; Meredosia Levee & Drainage Dist. v. Ind. Comm., 285 111. 68, 120 N. E. 516, 17 N. C. C. A. 683. 7. Simmons v. Faulds, 3 W. C. C. 169. 8. Anderson v. Foley Bros., 124 N. W. 987, 110 Minn. 151. 9. Nelson v. American Cement Plaster Co., 115 Pac. 578, 84 Kan, 797. 160 WHO COMES UNDER THE ACT. 37 all the circumstances should be considered. 10 So, too, it has been held that where one company is merely an instrument in the hands of another to evade liability both having the same officers and offices, a workman in the employ of one will be considered in the employ of both; 11 that the employees of a contractor did not be- come the employees of the company whose president directed them to proceed with work on a wall, assuring them that it was safe; 12 that one who is merely employed by the owner to superin- tend the work and hire employees is not liable for compensation to the employees; 18 that an independent contractor may at the same time be an agent of the principal for whom he is doing the work so that the principal is liable for the contractor's negligence under the doctrine of respondent superior; 14 that the rights of the employee under the Workmen's Compensation Law are not affected by the invalidity of his employer's subcontract. 18 An employee in a junk yard was paid by the day after cars reached the yard, and were spotted, but until then he was to strip engines at $4.00 per engine, using the tools of his employer. The court held that while the employee was stripping the engines he was not an independent contractor and injuries arising out of the employment of stripping the engines came within the protec- tion of the compensation act. 16 In another case the deceased worked for the defendant part of the time carting coal. He also obtained coal from the defendant at the "mine price" and delivered it to customers, receiving as compensation for his efforts the difference between the mine price and his selling price. On the day of the accident he came to the mine to procure coal for one of his customers and the defendant 10. Travis v. Hobbs Wall & Co., 165 111. App. 481. 11. Asplund v. Conklin Construction Co., 165 111. App. 44. 12. Kaplan v. Friedman Construction Co., 148 App. Div. 14, 132 Supp. 233. 13. Batchelder v. Charles W. Kreis and Mary E. Powers. 1 Cal. In. Ace. Com. (Part II) 63. 14. Norweigan Danish Methodist Epis. Church v. Home Tel. Co., 119 Pac. 834, 66 Wash. 511. 15. Wausau Lumber Co. v. Ind. Comm. 166 Wis. 204, 164 N. W. 836. 16. Cinofsky v. Indus. Comm. (1919). 111. . 125 N. E. 286. 5 W. C. L. J. 185. 161 W. C. 11 38 WORKMEN'S COMPENSATION LAWS. informed him that he had a delivery for him to make. Finally it was decided that he would first make the delivery to his custom- er and then haul the load for the defendant. He was killed soon after leaving the mine. The court in reversing an award said : "It is well recognized, in all cases brought under the act, that the burden is upon claimant to furnish the evidence from which the inference can reasonably be drawn that the injuries or death were caused by an 'accident arising out of and in the course of his em- ployment,' within the meaning of the workmen's compensation act." 17 Where the claimant hauled garbage in his own truck furnishing the gasoline for it, the cans being handled by others, it was held that he was an independent contractor though paid $25.00 per day for himself and truck. 18 Where there is a written contract of employment, the question whether or not the relation is one of employer and employee or employer and independent contractor, is to be determined from the contract. 10 38. Workmen Held Independent Contractors not Employees. In the following cases the workmen were held to be independent contractors and not employees. One who agreed with the re- spondent to build a silo for $20.00, respondent to furnish the foundation, the materials, and a helper but having no directive rights over the work; 20 one who undertook to do a job of slat<; roofing for a fixed sum ; 21 a workman who agreed to cut and pile wood on the defendant's land for a fixed rate per cord, cutting as much as he pleased and when he pleased and working part of the time for other people ; 22 a teamster who did general hauling and 17. Sugar Valley Coal Co. v. Drake, Ind. App. , 117 N. E. 937, I'l N. C. C. A. 254. 18. State Indus. Comm. v. Wiseman, 183 N. Y S 112, 6 W. C. L. J. 481. 19. LaMay v. Indus. Comm., 111. , (1920), 126 N. B. 604, 5 W. C. L. J 797. 20. Boyington v. Stoddard, 1 Conn. Comp. Dec. 103. 21. Perham v. American Roofing Co., 193 Mich. 221, 159 N. W. 140, 15 N. C. C. A. 489; Barnes v. Evans & Co., 7 B. W. C. C. 24. 22. Benoit v. Bushnell, 1 Conn. Comp. Dec. 172; Snow v. Winkler, 1 162 WHO COMES UNDER THE ACT. 38 was hauling bags of a cement company at 25 cents per trip ;- 3 a whitewasher who entered into a contract to do a job of white- washing for a certain price and to furnish the necessary material and labor; 24 a taxicab driver receiving one-fourth of the proceeds for his services in operating the company's car; 26 a man who agrees to paint a building and to receive a certain amount while he works and is at liberty to hire an assistant for whom he re- ceived the same amount, but on whose services he makes a profit, the owner of the building furnishing the material; 28 one contract- ing to erect a building and deliver it completed, hiring his own assistants, who is not, as to details, subject to the direction of ilu- company building it;- 7 a carpenter who agreed to build a barn for the respondent, being paid by the hour, but hiring other men, and making some profit on their wages as well as on the materials furnished by him, and doing the work from general plans without any supervision as to methods; 28 a decorator who agreed to paper a house being erected, the decorator to have complete liberty as to the hours of work; 20 a number of associated workmen working under the direction and control of one of their number as their leader and business manager, who are treated collectively under a common firm name as directed by the leader; 30 a number of Conn. Comp. Dec. 76; Donlon Bros. v. Industrial Acci. Comrn., 173 Cal. 250, 159 Pac. 715; Fidelity etc., Co. v. Brush, 176 Cal. 448, 168 Pac. 890. 1 W. C. L. J. 153. 23. In re Stull, Ohio Ind. Comm. No. 117139, Oct. 4, 1915, Flickenger v. Indus. Comm., Col. , (1919), 184 Pac. 851, 5 W. C. L. J. 8; In re Win. Musolf 3rd. A. R. U. S C. C. 152. 24. McDermott v. Gdndal & Sons. 111. Ind. Bd., Aug. 3, 1914; Fin klestein v. Balkin, 103 Supp. 99; Hungerford v. Bonn. 183 App Div. 818, 171 N. Y. S. 280, 2 W. C. L. J. 682; Kackel v. Serviss 180 App. Div. 54. 167 N. Y. S. 348, 1 W. C. L. J. 235; Holbrook v. Olympia Hotel Co., 200 Mich 597, 166 N. W. 876, 1 W. C. L. J. 1076. 25. Smith v. General Motor Cab Co., Ltd., 80 L. J. K. B. 839, 1 N. C. C. A. 576. 26. Wright v. Barnes, and Fidelity & Casualty Co., 1 Conn. Comp. Dec. 260, 248. 27. Edmonson v. Coca-Cola Co., , Tex. Civ. App. , 150 S. W. 273. 28. Crittenden v. Robbins, 1 Conn. Comp. Dec. 523. 29. Lewis v. Stanbridge, 6 B. W. C. C. 568. 30. Penas v. Utah Construction Co., 2 Cal. Ind. Ace. Com. 749; Kas- cvitch v. L. R. Wattis Co., 2 Cal. Ind. Ace. Com. 357. 163 38 WORKMEN'S COMPENSATION LAWS. men engaged under the claimant to chop down trees for a lump sum for the job, which was to be distributed among the gang by arrangement among themselves: 31 a salesman and collector on a purely commission basis who employed various persons to help him, furnished his own conveyance and invested some of his own capital in the business; 32 two men who were owners of a corn cutter hired out the machine with their own services, to various farmers to cut corn for silos at the rate of $2.00 an hour, while actually engaged, for the machine and their services; 33 a teamster paid per load for one definite service, producing one agreed result, having full control of his team, his time, his methods of work, as to whether or not he hired help and of all details except as toi what is to be hauled, teaming as such being hiscegular business; 3 " M. Co. who agreed to furnish night watchmen to the owners of piers, where cargo were stored and the M. Co. had the sole right of hiring and discharging the watchmen; 35 a plasterer theretofore doing journeyman work, who makes an oral contract to do a plastering job for a lump sum and is given free hand to employ assistants, and takes risks of profit and loss, and is not to be controlled or supervised; 36 the owner of a concrete mixer who agreed to build culverts for a town at the rate of $15.00 per day for himself, the machinery and three other employees; 37 one who agreed to blast and break up stone to be used by the respondents for building purposes, receiving wages per day, but using his 31. Curtis v. Plumtre, 6 B. W. C. C. 87; Gilmore v. Sexton, 1 Cal. I. A. C. Dec. 257; Rose v. Pickrell, 1 Cal. I. A. C. Dec. 85; Soloski v. Strickland, 1 Conn. Comp. Dec. 564; Helton v. Tall Timber Lumber Co. of La., La. (1920), 86 So. 729, 7 W. C. L. J. 299. 32. Fineblum v. Singer Sewing Machine Co., 1 Conn. Comp. Dec. 126. In re James Reed, 3rd A. R. U. S. C. C. 152. 33. Busse v. Brugger, Third Annual Report (1914), Wis. Ind. Com. 78, LaMay v. Indus. Comm., 111. (1920), 126 N. E. 604, 5 W. C. L. J. 797. 34. McCoy v. Kirkpatrick, 1 Cal. I. A. C. Dec. 599; Ryland v. Harve M. Wheeler Lumber Co., La. , (1920), 84 So. 55, 5 W. C. L. J. 850. 35. Oberg v. W. J. McRoberts & Co., 6 N. Y. St. Dep. Rep. 386. 36. Baker v. Armstrong, 2 Cal. I. A. C. Dec. 1057; In re Thomas Proud Dinwiddie Cons't Co., 2nd A R. U. S. C. C. 207. 37. Day v. Ellington, Third Annual Report (1914), Wis. Ind. Com. 74. 164 WHO COMES UNDER THE ACT. 38 own tools and providing the dynamite and assistants used, and being under no direction or duty from the respondent; 88 a car- penter wprking in a shop on materials furnished by the employer and receiving $1.00 an hour for his services, while thus working using the tools and appliances of his shop ; 89 a man working under contract to cut fire wood at a certain price per cord, he agreeing to furnish his own tools and determining his own hours of labor; 40 a man who verbally agreed to break steel and clear cinders at so much per ton, and who employed five or six men to assist him and was paid weekly; 41 a workman who entered into a written agreement with a mining company to carry out specific blasting operations, where the mining company had exercised no control over the men apart from the agreement; 42 a mine owner, giving another a contract to mine, reserved no rights to interfere with details of the work, but only required it to be done in conformity with the contract and the mining rules ; 43 a member of a copart- nership working under a subcontract ; 44 the members of a partner- ship which entered into a contract with a contractor to install certain machinery, one of the partners, living at the place of business being injured while helping to unload machinery billed to the contractor; 45 a rabbit trapper who was paid according to the number of animals caught, the principal furnishing the traps and the use of a cottage while the man was thus engaged; 46 one who agreed to cut mine props at a specified sum each, he employ- ing his own assistants and receiving no directions as to how to 38. Wowinski v. Vito, 1 Conn. Comp. Dec. 629. 39. Crittenden v. Dr. B. B. Robbing Bristol Trucking Co., 1 Conn. Comp. Dec. 523. 40. Donlon Bros. v. Industrial Ace. Com., 173 Cal. 250, 159 Pac. 715, 15 N. C. C. A. 492; Parsons v. Industrial Ace. Com. 178 Cal. 394, 173 Pac. 585, 2 W. C. L. J. 619. 41. Vamplew and others v. Pargate Iron & Steel Co., 88 L. T. 756, 5 W. C. C. 114. C. A. 42. Reid v. Leitch Collieries, 7 B. W. C. C. 1017. 43. Merri weather v. Say re Mining & Mfg. Co., 49 So. 916, 161 Ala. 441. 44. Kasovitch v. L. R. Wattis Co., 2 Cal. Ind. Ace. Com. 357. 45. Anderson v. Perew, 2 Cal. Ind. Ace. Com. 727. 46. McConnell v. Galbraith, 7 B. W. C. C. 968. 165 38 WORKMEN'S COMPENSATION LAWS. do the work; 47 a principal voluntarily assisting a contractor who was doing work for him ; 48 a stage hand who carried baggage for different theatre troups when he was not busy doing. work at the theatre of his employer; 49 one who agreed to drag some logs with his horse, being paid a certain sum per day, and was not obliged to do the work himself but might have sent a servant; 50 a man who had contracted with the harbor commissioners to furnish a yawl and four men to work a pilot station and was drowned while taking a pilot out to a ship in the harbor, he being under no obligation to do the work personally; 51 one employed to move machinery at cost plus ten per cent employing and di- recting his assistants and being paid for his own time when he worked; 52 a stone contractor employed by a general contractor to do the stone work on a building supplying his own tools, equip- ment and laborers; 53 one contracting to furnish an engine, men and team to a county for grading work at a fixed daily pay; 54 one hired to move some building material in his own way through his own servant; 55 the mere fact that a workman is requested to construct a building in a certain way is not conclusive that he i& not an independent contractor; 56 a farmer engaged by contractor to do hauling for a price per team ; 57 a woman who hauled farmers ' milk to the plant of a manufacturer of milk products, controlling 47. Sickle v. Pierson, 37 N. J. Law J. 15; Clark v. Tall Timber Lbr. Co., 140 La. 380, 73 So. 239. 48. Artenstein v. Employer's Liability Assur. Corp., 2 Mass. Ind. Ace. 699. 49. Huscroft v. Bennett, 7 B. W. C. C. 41. 50. Chisolm v. Walker & Co., 2 B. W. C. C. 261. 51. Walsh v. Waterford Harbor Commissioners, 7 B. W. C. C. 960 C. A. 52. Carleton v. Foundry etc. Products Co., 199 Mich. 148, 165 N. W. 816, 1 W. C. L. J. 410, 15 N. C. C. A. 492. 53. Mobley v. Rogers Co. (Ind. App.), 119 N. E. 477, 2 W. C. L. J. 47. 54. Pace v. Appanoose County, 184 la. 498, 168 N. W. 916, 2 W. C. L. J. 884. 55. In re Comerford, 224 Mass. 571, 113 N. E. 460, I. W. C. L. J. 793. 56. Connolly v. Industrial Ace. Com. 173 Cal. 405, 160 Pac. 239, 15 N. C. C. A. 490. 57. Zeitlow v. Smock, 64 Ind. App., v. 117 N. E. 665, 1 W. C. L. J. 174. 166 WHO COMES UNDER THE ACT. 38 her own equipment and receiving payment from the farmers through the agency of the manufacturer; 58 an owner of teams and hcrses who let them with drivers to a company at a rate per hour, paying the drivers, and driving a team himself, and who was in- jured in management of the horses of his team ; 59 one who w.as en- gaged in the business of stable keeping, teaming and jobbing and let to a town for work on its road a cart, a pair or horses, and himself for an undivided price of $600 per day; 00 one employer to remove trees prepartory to grading street, to be paid in lump sum, he furnishing his own tools, controlling his own time, etc.; 61 one employed to cut with his own tools, such timber as in his judg- ment was best suited to his purpose in converting it into units for which he was to be paid and over which his employer exercised no control; 62 a contract providing for digging a tunnel for an express consideration, but contained no reservation of any control of the work more than was necessary to insure its producing the result provided; 63 where a drainage district supervised a ditch cleaning operation as to results only, while the person injured operated his own machine, furnished his own workmen, and direct- ed the manner of work for a per diem compensation, the latter was an independent contractor; 04 a painter, agreeing to paint three smokestacks for a corporation where has absolute control of himself and his helper as to the time when he is to begin work, and as to where he shall commence, unhampered by directions from the corporation and not subject to its discharge; 63 a painter, work- ing by the job and by the hour on the residence of his employer, 68. Sawtels v. Ekenberg Co., 206 Mich. 246, 172 N. W. 681, 4 W. C. L. J. 252. 59. Centrello's Case, 232 Mass. 456, 122 N. E. 560, 3 W. C. L. J. 740. 60. Winslow's Case. 232 Mass. 458, 122 N. E. 561, 3 W. C. L. J. 741. 61. Stern v. Thompson, (Iowa) 3 W. C. L. J. 470; Roach v. Hibbard & Gifford, 184 N. Y. Supp. 418 (1920), 7 W. C. L. J. 130. 62. Parsons v. Industrial Ace. Comm. 178 Cal. 394, 173 Pac. 585, 2 W. C. L. J. 619. 63. Industrial Comm. v. Maryland Casualty Co., 65 Colo. 279, 176 Pac. 288, 3 W. C. L. J. 95. 64. Meredosia Levee and Drainage Dist. v. Ind. Comm. of Illinois, 285 111. 6S, 120 N. E. 516. 3 W. C. L. J. 24. 65. Litta v. Rlley Lumber Company, 120 N. E. 730, 224 N. Y. 321. 167 38 WORKMEN'S COMPENSATION LAWS. and who hired his own assistants; 66 a workman who transferred freight from one railroad to another at a specified price per ton; 67 a man engaged in trucking business, owning own trucks, who hauls for another and is permitted to haul as he pleases without reporting before or after work. 68 "The right to supervise, control and direct the work in one of the tests for determining whether a person is an independent contractor or an employee, but it is not the sole and only test. One who takes contracts for cleaning and painting the walls of brick buildings, agreeing to furnish his own tools, scaffolding, and materials, to employ his own help, keep his own time, to furnish workmen's compensation insurance for the workers whom he employs, who is under no obligation to do the work in person, who is paid on weekly estimate/* 50 per cent of the value of the work done, the balance being reserved until the completion or acceptance of the work, is an independent contractor, and not an employee under the Workmen's Compensation Act." 69 One employed to draw logs at $2.50 a cord, furnishing his own team and doing the work at his own convenience, was an inde- pendent contractor. 70 A painter who agreed to paint a certain number of windows for an agreed amount and was doing the work in his own manner and using his own brushes, was an. independent contractor. 71 Where a contractor when asked to do some plastering for the owner of a house sent a plasterer, who furnished the material, kept his own time and did the work in his own manner, and it was the plasterer's practice to render a bill for labor and materials to the contractor, the plasterer was held to be an independent con- tractor. 72 66. Hungerford v. Bonn, 171 N. Y. S. 280, 2 W. C. L. J. 682. 67. Smith v State Workmen's Ins. Fund, 105 Atl. 90, 17 N. C. C. A. 69t>. 68. Flickenger et al. v. Ind. Ace. Comm. et al. (Gal.), 184 Pac. 851, 5 W. C. L. J. 8. 69. Barrett v. Selden-Breck Construction Co., 103 Neb. 850, 174 N. W. 866, 5 W. C. L. J. 291. 70. Robichaud's Case, 234 Mass. , 124 N. B. 890, 5 W. C. L. J. 247. 71. Prince v. Schwartz et al., 190 App. Div. 820, 180 N. Y. S. 703, 6 W. C. L. J. 727. 72. Woodhall v. Irwin et. al., 201 Mich. 400, 167 N. W. 845, 2 W. C. L. J. 296. 168 WHO COMES UNDER THE ACT. 38 Where a man was employed to cut wood at a fixed sum per cord using his own method and time, he was held to be an independent contractor and where he had his son helping, the son to receive half of the fathers remuneration, the son was also considered an independent contractor. 78 One who contracts to remove freight from the cars of one road to the cars of another, having full control over the manner of doing the work, was held to be an independent contractor/ 4 and one engaged to assist him was not entitled to compensation from the one for whom he contracted to perform the work. 75 Where a decedent furnished and erected a scaffold from which he fell while painting a sign, he was held to have been an inde- pendent contractor. 76 In a recent Massachusetts case the court said: "The undisputed facts shown by the record and found by the Industrial Accident Board are that at the time of the injury the claimant with his team was hauling a load of ashes for the town of Lee to be used in the construction of a public way. It was provided by his contract ot employment that he should furnish the team, feed, take care of and drive the horses for a fixed daily remuneration. The entire management and mode of transportation were under his control and the only orders given by the town 's foreman were to direct him where to go for the ashes and after the ashes had been loaded, in which work he took no part, to dump the ashes at a designated place. It is plain as a matter of law under McAlister's Case, 229 Mass. 193, 118 N. E. 326, Centrello's Case, 232 Mass. 456, 122 N. E. 560, and Winslow's Case, 232, Mass. 458, 122 N. E. 561; that 73. Fidelity & Deposit Co. of Maryland et al. v. Brush et al., 176 Cal. 448, 168 Pac. 890, 1 W. C. L. J. 153, 15 N. C. C. A. 489; Clark v. Tall Timber Co., 140 La. 380, 73 So. 239, 15 N. C. C. A. 489; In re Anna M. Lutz, 2nd A. R. U. S. C. C. 219. 74. Smith v. State Workmen's Ins.. Fund, 262 Pa. 286, 105 Atl. 90, 3 W. C. L. J. 374, 17 N. C. C. A. 691. 75. Zoltowski v. Lernes Coal & Lumber Co., Mich. , 183 N. W. 11 (1921). 76. Rheinwald v. Builders' Brick & Supply Co., 223 N. Y. 572, 119 N. B. 1074, 17 N. C. C. A. 683. 169 39 WORKMEN'S COMPENSATION LAWS. when injured he was not an employee of the town but an indepen- dent contractor. It having been rightly held and ruled by the board that there could be no recovery under St. 1911, c. 751, and amend- atory acts, the decree dismissing his claim for compensation must be affirmed." 77 A mail carrier was held to be an independent contractor where the route was let to the lowest bidder. 78 Special delivery messen- gers are employees of the United States. 79 Where a contractor drove a team himself it did not change his status to that of an employee. 80 39. Workmen Held Employees and not Independent Con- tractors. In the following cases the workmen were held to be employees and not independent contractors : A cook on a monthly salary put in charge of a boarding house by a manufacturing company under whose direction and control the work was to be done, and the cook to have in addition to his salary all profits from boarding the company's employees. 81 A company engaged in building operations employed two brothers to hire and pay all its employees for which the brothers received by way of wages a lump sum without account being kept of their time. 82 A mason employed at a stated sum per hour to hire other men and work according to the employer's plan, though the latter exercised no control over the workmen employed by such mason. 83 A vaude- ville actress employed on a vaudeville circuit, though she furnish- ed her own costumes and skates. 84 A man was employed by a company to superintend the construction of a building and hire 77. Eckert's Case, 233 Mass. 577, 124 N. E. 421, 4 W. C. L. J. 713. 78. In re Aaron W. Wallace, 3rd A. R. U. S. C. C. 152; In re Wm. J. Scott, 2nd A. R. U. S. C. C. 208; In re Wm. Nicholas, 2nd A. R. U. S. C. C. 212. 79. In re Jacob Cahan, 2nd A. R. U. S. C. C. ,208. 80. Norton v. Day Coal Co., la , 180 N. W. 905. 81. Michael v. Western Salt Co., 2 Cal. I. A. C. Dec. 501. , 82. De Palma v. The Home Construction Co., 1 Conn. Comp. Dec. 358. 83. Maddix v. Hotchgreve Brewing Co., 154 Wis. 448, 143 N. W. 189. In re Melbourn G. Meyers, 2nd A. R. U. S. C. C. 219. 84. Howard v. Republic Theater, 2 Cal. I. A. C. Dec. 514. 170 WHO COMES UNDER THE ACT. 39 men to do the work, the company furnishing the money to pay the men, also the materials for building. 85 A carpenter employed periodically at a daily wage by a shop owner in whose shop he is put to work to fill an order for window frames on the basis of twenty-five cents per frame. 86 A driver employed for no definite time to haul logs for a lumber company and subject to the com- pany's right to discharge him at any time, the work being done under the control of the company both as to time and place. 87 A man employed to collect cream and deliver butter at a stipu- lated wage, receiving an additional amount for the use of his automobile, and to hire a helper, the employer exercising full control over both the man and his helper. 88 Bowling alley boys working periodically at setting up pins and receiving twenty- five per cent of the amount received by the owner of the alleys for each game served by the boys. 89 A laborer engaged in felling specified trees and cutting them into cord wood at $1.00 per cord, out of which he paid helpers at the same rate he himself re- ceived. 90 One employed by a manufacturing Company to squeeze boxes in its factory at so much per box, with the right to hire and pay his own assistant, receiving a stipulated price per box, but iising the company's machinery and doing the work as and when directed by its foreman. 91 A mechanic to put on lath in a state institution at twenty-five cents a bunch, who was authorized 85. Rankel v. Buckstaff-Edwards Co., 120 N. W. 269, 138 Wis. 442, 20 L. R. A. (N. S.) 1180. 86. Hale v. Johnson. 2 Cal. I. A. C. Dec. 339. 87. Tuttle v. Embury-Martin Lumber Co., 192 Mich. 385, 158 N. W. 875; 15 N. C. C. A. 496; Van Simaeys v. Cook Co., 201 Mich. 540, 167 N. W. 925, 2 W. C. L. J. 323; Western Indemnity Co. v. Prater, Texas , 213 N. W. 355, 4 W. C. L. J. 455. 88. Golden v. The Delta Creamery Co., 2 Cal. Ind. Ace. Com. 743, 12 N. C. C. A. 385. 89. Weaver v. Eyster & Sione, l.Cal. I. A. C. Dec. 563. 90. Pearce v. Frapwell, 3 Cal. Ind. Ace. Com. 75; Fischer v. Dunshee, 2 Cal. Ind. Ace. Com. 849. 91. Messmer v. Bell & Coggeshall Co., 117 S. W. 347. 133 Ky. 19; Aisen- berg v. C. F. Adams Co., Conn. , (1920) 111 Atl. 591. 7 W. C. L. J. 28; Franklin Coal & Coke Co. v. Indus. Comm. 111. , (1920), 129 N. E.811. 171 39 WORKMEN'S COMPENSATION LAWS. to secure other men to help him to whom he paid the saint; amount. 92 A quarry worker paid a stipulated price for each day worked, although he was allowed to choose his own helpers and use his judgment as to where to work. 93 A plumber hired to fix some pipes, and supplied with materials by the owner who super- intended the work and paid him by the hour. 9 * Where A arranged with B to cut wood for $4.50 a cord and B arranged with C to do the work for $4.25 a cord and C arranged with D to do the work for $4.00 a cord and D was injured at the work, A was his employer. 95 A worker who hauled stones at a stip- ulated price per day and was allowed to work for other people when not badly needed by his first employer. 96 One who employ- ed carpenters to erect a building, directed the details of the work paid the carpenters and had the right to discharge them, but looked to the owner of the building to reimburse him for the carpenter's wages. 97 A construction superintendent who had great liberty of action as to purchase of material and man- ner of construction by reason of having a peculiar skill and knowledge as the inventor of an apparatus used in construction work. 98 A member of a partnership employed by the principal contractor on a building to do the glazing work and was injured while overseeing the unloading of glass for the contractor when it arrived for which he received compensation additional to that received under the partnership contract for the glazing work. 99 A person employed to collect bills for about two hours 92. Jones v. Commonwealth of Mass., 2 Mass. Ind. Ace. Bd. 721; McNally v. Diamond Mills Paper Co., 223 N. Y. 83, 119 N. E. 242, 2 W. C. L. J. 110. 93. Paterson v. Lockhart, (1905), 7 F. 954 Ct. of Sess. 94. McNally v. Fitzgerald (1914) 7 B. W. C. C. 24 C. A. 95. Lachuga v. Kataoka, 2 Cal. Ind. Ace. Com. 764, - 96. O'Donnell v. Clare County Coucil, 6 B. W. C. C. 457 C. A. 97. Battey v. Stanage, 3 Cal. Ind. Ace Com. 288; Yolo Water etc., Co., v. Industrial Ace. Comm., 35 Cal. App. 14, 168 Pac. 1146, 1 W. C. L. J. 499. 98. Turner v. Oil Pumping and Gasoline Co., 2 Cal. Ind. Ace. Com. 471. Rosedale Cemetery Assn. v. Industrial Ace. Comm. 37 (Cal.) App. 706, 174 Pac. 351, 2 W. C. L. J. 754. . 99. Dyer v. James Black Masonry and Contracting Co., 192 Mich. 400, 158 N. W. 959. 172 WHO COMES UNDER THE ACT. 39 per day at a compensation agreed upon at the time and, with one unimportant exception, was not employed by anyone else. 1 A miner employer to mine coal at a fixed price per ton, using his own tools and being paid extra for timbering. 2 One employed to draw pillars in a coal mine at a certain price per ton, but working under the same rules and control as the other em- ployees. 8 A person who makes a series of subcontracts all of which are guaranteed by the employer, merely as a subterfuge in an attempt to escape liability under the Compensation Act. 4 A foreman, as to those employees that do not know that he has an independent contract with his principal. 8 A window washer employed by a janitor of a public school regularly, twice a year, at a sum based upon the time estimated to complete the work. 6 A man employed to haul milk at a certain price per gallon, who furnished his own horse and wagon. 7 Two wood choppers cut- ting wood at a stipulated price per cord, who at the suggestion of their employer hired a third person to help them, the com- pensation being divided equally among the three. 8 A carpenter working for a lump sum for his labor, the amount thereof being estimated upon the number of days required to finish the work, and he not supplying the materials or paying his assistants, and being subject to the direction of the owner. 8 A person who contracted to care for 176 naptha lights, receiving a stipulated 1. Shouler v. Jacob Greenberg, 1. Cal. Ind. Ace. Com. (Part 11) 146, 11 N. C. C. A. 382. 2. Cangreme v. Alberta Coal Mining Co., 7 B. W. C. C. 1020; Indiana Win- dow Glass Co. v. Mauck, Ind. App. , 128 N. E. 451, 6 W. C. L. J. 657. 3. Allen v. Bear Creek Coal Co., 43 Mont. 269, 115 Pac. 673. 4. Mezansky v. Sissa, 1 Conn. Comp. Dec. 430. 5. Summers v. National Tent and Awning Co., 2 Cal. Ind. Ace. Com. 778; Bowie v. Coffin Valve Co., 86 N. E. 14, 200 Mass. 571; McClure v. Detroit Southern R. Co., 109 N. W. 847, 146 Mich. 457. 6. Sablnl v. Loura, 3 Cal. Ind. Ace. Com. 354. 7. Clark v. Bailieborough Co-operative Agricultural & Dairy Society Ltd., 47 Ir. L. T. R. 113 C. A. 8. Bush v. Union Commission Co., 2 Cal. Ind. Ace. Com. 632. 9. Holmes v. Japan Beautiful Nippon Kyos In Kaisha, Inc., 2 Cal. I. A. C. Dec. 894; Kackel v. Serviss, 180 App. Div. 54, 167 N. Y. S. 348. 1 W. C. L. J. 235; Thompson v. Twiss, 90 Conn. 444, 97 Atl. 328. 173 39 WORKMEN'S COMPENSATION LAWS. amount per light, and engaged other men to assist him, and the employer retained the right to direct him as to the way, means and manner of doing the work. 10 A man hired to haul stone from a quarry, and paid a fixed sum per load. 11 A woodworker engaged to cut pieces of wood and put them together into lamps, receiving thirty-five cents per lamp, and allowed to hire two helpers to expedite the work, but using the employer's machinery and material. 12 A ship's mate, who employed its sailors. 13 A contractor who agreed to superintend certain building and clear- ing work in accordance with instructions from the property owner. 14 One employed by the hour, using either his own wagon or one of defendants, and subject to discharge at any time. 15 One employed by a contractor as a superintendent of construc- tion. 16 One employed by a contractor to supervise the work of wrecking a smokestack for $140, with a guarantee that if it did not amount to $5.00 per day the contractor would make up the deficiency. 17 A real estate agent agreeing to devote his entire time to selling his employer's lots on a commission. 18 A bread salesman who was paid a per cent of the retail price of the bread he sold. 19 A journeyman paperhanger, hired by the foreman 10. Dodge v. Massachusetts Employees Insurance Ass'n., 1 Mass.. Ind. Ace. Bd. 52. 11. Howell v. Thomas, 120 L. T. Jo. 79 C. A.; Jones v. Penwyllt Dinas Silica Brick Co., 6 B. W. C. C. 491; Evans v. Same, 4 W. C. C. 101. 12. Shaffer v. Southern California Hardwood Mfg. Cc., 2 Cal. Ind. Ace. Com. 886. 13. Nelson v. Western Steam Nav. Co., 100 Pac. 325, 52 Wash. 177. 14. Opitz v. Hoertz, 194 Mich. 626, 161 N. W. 866, 15 N. C. C. A. 498; Welden v. Skinner, etc., Corp. 103 Wash. 243, 174 Pac. 452, 2 W. C. L. J. 860; Wislow v. Wellington, N. H. (1920) 111 Atl. 631, 7 W. C. L. J. 85. 15. Columbia School Supply Co. v. Lewis, 63, Ind. App. 386, 116 N. E. 1. 16. Otis Elevator Co. v. Miller, 153 C. C. A. 302, 240 Fed. 376. 17. American Steel Foundries v. Industrial Board, 284 111. 99, 119 N. E. 902, 2 W. C. L. J. 463; Cummings v. Underwood Silk Fabric Co., 184 App. Div. 456, 171 N. Y. S. 1046, 2 W. C. L. J. 923. 18. Brown v. Industrial Ace. Comm., 174, Cal. 457, 163 Pac. 664; Cameron v. Pillsbury, 173 Cal. 83, 159 Pac. 149, 14 N. C. C. A. 496. 19. Easton v. I. A. Comm. of Cal., 34 Cal. App. 321, 15 N. C. C. A. 491, 167 Pac. 288. 174 WHO COMES UNDER THE ACT. 39 of a department store, and directed by the foreman, whenever such work was required by a purchaser, to go to the purchaser's residence and hang paper and paid by the roll with expenditures for carfare and paste. 20 An employee who is paid by the ton for unloading coal and hires and pays his own help, the employer retaining control over the manner in which the coal is to be un- loaded and having the right to discharge him at any time with- out reason. 21 Four men who agreed to go with the owner to prune his vineyard at a fixed price per acre, they being directed and controlled by the owner. 22 An awning remover, working for any one needing his services, who is engaged to do piece work for a house owner who retains control and direction of the work with the right to discharge him for disobedience. 28 A foundry worker, unloading coke from freight cars for a certain sum per ton, where there is no contract to unload a certain number of tons or work for a certain period of time, the worker having the right to quit and the foundry company having the right to dis- charge him at any time without liability. 24 A carpenter, working by the hour and paid weekly by a miller to make additions and repairs at the mill under the miller's supervision, first working a few weeks in September and later returning to do more work in November. 25 An association formed as a medium of employ- ment of members, collecting their pay and distributing same without deduction and without control over the work of the mem- bers is not an independent contractor. 2 * Musicians, although fur- nished by the leader twice each week to play in an amusement 20. In re McAlister, 118 N. E. 326, 229 Mass. 193, 1 W. C. L. J. 618; Board of Commissioners of Green County v. Shertzer, Ind. App. , (1920), 127 N. E. 843. 6 W. C. L. J. 310. 21. Decatur R. & Light Co. v. Ind. Bd. of 111., 276 111. 472, 114 N. E. 915, 15 N. C. C. A. 495; Kelley v. Delaware. L. & W. R. Co., Pa. , 113 All. 419. 8 W. C. L. J. 130. 22. Guisti v. Covell Bros, et al.. 5 Cal. I. A. C. Dec. 137. 23. Abromowitz v. Hudson View Const. Co., 177 N. Y. S. 187, 188 App. Div. 356, 4 W. C. L. J. 538. 24. Muncie Foundry ft Machine Company v. Thompson, 123 N. E. 196 (Ind. App.), 4 W. C. L. J. 56. 25. Caca v. Woodruff, 123 N. E. 120 (Ind. App.), 4 W. C. L. J. SI. 26. Hokomb v. Standard Oil Co., et al., 5 Cal. I. A. C. D. 240. 175 39 WORKMEN'S COMPENSATION LAWS. park, who stipulated the amount of compensation they were to receive, were not employees of an independent contractor. 27 A mechanic, engaged by defendant to take down an old smokestack and put up a new one, who used his own appliances and furnished needed help, in addition to two men assigned by his employer, and who had charge of the work and was told to present his bill, and whose heirs after his death were paid a bill for work done by the hour, was an employee and not an independent contractor. 28 The mere fact that compensation is fixed on the amount of work done, rather than on the amount of time, does not make a workman an independent contractor. 29 A man hired to work by the day, as soon as certain work was ready, and pending the commencement of the work was engaged in stripping engines at an agreed sum per engine, using tools of employer. 30 Where a man furnished a truck and his own services for defi- nite hours during the day, under the direction and control of the company, and agreed to so work for six months. 31 An excavation contractor, under an agreement by which he was to receive the use of timbers and blocking, in return for his services and the use of his engine and derrick by the shoring contractor, his subcontractors, and their employees, when ren- dering such services. 32 A journeyman tailor, working at home on piece work was held to be employee. 33 A special delivery letter carrier was held to be an employee. 84 27. Boyle v. Mahoney & Tierney, 103 Atl. 127, 92 Conn. 404, I. W. C. L. J. 937. 28. Cummings v. Underwood Silk Fabric Co., 184 N. Y. App. Div. 456, 171 N. Y. S. 1046. 29. Komula v. General Ace., etc., Assur. Corp. 165 Wis. 520, 162 N. W. 919. 30. Cinofsky v. Ind. Comm. (111.) 125 N. E. 286, 5 W. C. L. J. 185. 31. Eng-Skell Co. v. Ind. Ace. Comm. (Cal. App.) 186 Pac. 163, 5 W. C. L. J. 352. 32. Mandatto v. Hudson Shoring Co.., 190 App. Div. 71, 179 N. Y S. 458, 5 W. C. L. J. 436. 33. Liberatore v. Friedman, 224 N. Y. 710, 121 N. E. 876, 17 N. C. C. A. 688. 34. In re Jacob Cahan, 2nd A. R. U. S. C. C. 208. 176 WHO COMES UNDER THE ACT. 4^ A mechanic repairing engines for contractors at a specified rate per hour, varying with the class of work performed by him, for which he rendered a bill for the gross amount, without itemizing it, his wages forming a part of the payroll upon which the insurance premium was paid, is an employee and not an in- dependent contractor. 88 40. Owner of Premises as Employer of the Employees of his Contractors and Subcontractors. Most of the compensation acts expressly or impliedly provide that any person who has work done under contract on or about his premises, which is an operation of the usual business which he there carries on, shall be deemed an employer and shall be liable under the act to such contractor, his sub-contractors, and their employees, when in- jured or killed on or about the premises of the employer while doing work which is in the usual course of his business. These provisions as a rule are not held to apply to the owner of premises upon which improvements are being erected, demol- ished, altered or repaired by an independent contractor. Such contractor is deemed to be the employer of the employees of his subcontractors and their subcontractors unless the act specific- ally otherwise provides, as some of them do. 88 Some of the acts provide that if the owner of the premises fails to require his contractor to insure his compensation liability to the employees whom he employs on the premises, then the owner of the premises becomes jointly and severely liable therefore with his contractor. It was so held in an Illinois case, where a corporation con- tracted with one to wreck a smokestack for $140.00, and an em- ployee of the contractor was killed in doing the work; the corporation not having required its contractor to insure his lia- bility, was required to pay the compensation due. 87 But it was 35. State Indus. Comm. v. Tassell & Fairbanks, 184 N. Y. Supp. 426, 7 W. C. L. J. 104. 36. Helton v. Tall Timber Lbr. Co. of La., La. , (1920), 86 So. 729, 7 W. C. L. J. 299. 37. American Steel Foundries Co. v. Industrial Bd. et al., 284 111. 99, 119 N. E. 902, 2 W. C. L. J. 462. 177 W. C. 12 40 WORKMEN'S COMPENSATION LAWS. held in the same state that a grocer was not liable for injuries to an employee of a contractor, who was building a founda- tion for the grocer's dwelling house. The contractor failed to take out insurance, but as the grocer was not "engaged in busi- ness of erecting or altering dwelling houses," he was not lia- ble. 38 It has been held under the California Act that the commission has no authority to enter an award against a principal or the principal's insurance carrier, because of injuries to an employee of an independent contractor working on the principal's prem- ises. 39 A similar decision was rendered in an Illinois case. Section 1, of the Illinois Act of 1913, providing that a princi- pal shall be liable to the employee of a contractor when the con- tractor does not carry Workmen's Compensation insurance, does not apply to the owner of land, who enters into a contract with another to erect a building thereon, but applies in such case only as between the contractor and subcontractor. 40 The Minnesota Act contains the following typical provision "Any person who creates or carries into operation any fraudu lent scheme, artific or device to enable him to execute work without himself being responsible to the workmen for the pro- visions of this act, shall himself be included in the term 'em- ployer,' and be subject to all the liabilities of employers under this act." It has also been held under the Illinois act that a contractor is liable to an employee of a subcontractor if he enters into a fraudulent scheme to avoid liability for compensation. 41 38. Alabach v. Ind. Comm. et al., 291 111. 338, 126 N. E. 163, 5 W. C. L. J. 667. 39. Western Indemnity Co. v. State Industrial Accident Comm., (1916), 172 Cal. 766, 158 Pac. 1033; Sturdivant v. Pillsbury, 172 Gal. 581, 158 Pac. 222; Carstens v. Pillsbury, 172 Cal. 572, 158 Pac. 2i8; Packett v. Moretown Creamery Co., 91 Vt. , 99 Atl. 638: First Christian Church v. I. A. Comm., Cal. , 160 Pac 675. 40. Littledair v. Crowley, 1 Bull. 111. Ind. Bd. 25. 41. Parker Washington Co. v. Industrial Board, 274 111. 498, 113 N. E. 976; Butler St. Foundry & Iron Co. v. Ind. Bd., 277 111. 70, 115 N. E. 122. 178 WHO COMES UNDER THE ACT. 40 It was held under the Connecticut Act that where the claim- ant, a carpenter, was working for a subcontractor on premises owned and controlled by the respondent, and doing work which was part of the respondent's business and it further appeared likely from the evidence that the contracts were mere subter- fuges to escape liability, compensation should be awarded. The commissioner said: "Section 33, of the Compensation Act is in- tended to prevent subterfuges being successfully used to avoid the purpose of this statute and when taken in connection with Section 5, seems to me to make it my clear duty to render an award in favor of this claimant. If a series of sub-contracts of this character can be so made as to exempt everybody who has any responsibility from any liability where nine or ten people are employed, it would be very easy to make arrangements which would exempt everybody who had any responsibility where nine or ten hundred were employed, and thus the well-settled policy of the state adopted after mature consideration would be de- finitely set at naught." 42 Where an exhibitor secured floor space in an exhibition build- ing and employed a contractor to erect and decorate a booth, directing to some extent the work of the contractor's employee, it was held that under the California Act, the exhibitor was lia- ble as principal to an injured employee of the contractor. 43 So it has been held that the liability of a principal or general con- tractor, upon whose premises an employee of a contractor has been injured, is analogous to that of a surety, and he must pay any compensation, for which the immediate employer is liable, as in the case of an immediate employer who was a contract painter and employed a painter to help him paint the house of his principal. The painter was a casual employee as to both the contractor and principal, and employed in the regular trade or business of the contractor, but not of the principal. The com- mission held that the contractor or immediate employer being liable under the Compensation Act, for injuries sustained by the 42. Mezansky v. Sisaa, 1 Conn. Comp. Dec. 431. 43. Brain v. Eisnfelder, 2 Cal. I. A. C. Dec 30. 179 40 WORKMEN'S COMPENSATION LAWS. painter, the principal is also liable, though he would not have been liable if the painter had been employed directly by him. 44 In another case it was held that where a ship owner employed a contractor to clean the ship boilers, that the employees of the contractor were not employees of the ship owner, and that the work of boiler scaling on a ship is not work in the course of or for the purposes of his trade or business, within the meaning of the Compensation Act. 45 The above mentioned provisions do not, therefore, as a general rule apply to or change the law of independent contractor so as to bring contractors and subcontractors under the act unless it can be definitely shown that they are engaged in the usual busi- ness which their principal carries on, on or about the premises where the contractors and subcontractors are engaged in their work. So it has been held that it was not part of the employer 's or principal's trade or business where a contractor employed workmen to do some tarring on the premises of chemical manu- facturers; 46 or where manufacturers employed a deal porter by contract to pile timber on their premises, when the manufactur- ers never did such work themselves, it not being customary for persons in their trade to do it; 47 or owners of a barge, where they employed the mate ; 48 or where a firm of drug grinders em- ployed a contractor or ganger to unload a barge of sulphur and store it in their warehouse. 49 But in a Vermont case it was held that a teamster employed by one who has a contract with the manufacturer to haul lumber at a certain price per thousand feet, is entitled to obtain com- 44. Neel v. White, 2 Gal. I. A. C. Dec. 933; Wallace v. Pratchner, 2 Cal. I. A. C. Dec. 661. 45. Spiers v. Elderslie Steamship Co., (1909), 46 Scotch L. R. 893, 2 B. W. C. C. 205. 46. Zugg v. J. & J. Cunningham, Ltd., 1 B. W. C. C. 257, Ct. of Sess. 47. Hockley v. West London Timber & Joinery Co., 7 B. W. C. C. 652 C. A.; Packett v. Moretown Creamery Co., 91 Vt. , 99 Atl. 638, 15 N. C. C. A. 501. 48. Hayes v. S. J. Thompson & Co., 6 B. W. C. C., 130 C. A.; Luckwill v. Auchin Steam Shipping Co., Ltd., 6 B. W. C. C. 51, C. A. 49. Bobbey v. Crosbie 8 B. W. C. C. 236 C. A. 180 WHO COMES UNDER THE ACT. 41 pensation from the manufacturer of the lumber, for, the true test of employment is whether the work being done pertains to the business, trade, or occupation of the claimed employer car- ried on by it for pecuniary gain ; and if so the fact that the work is being done through the medium of an independent contractor does not relieve the employer from liability. 60 41. On or About the Premises. It has been held that work is not done "on or about one's premises," within the meaning of the acts, where a workman on a new building was killed on a public road from 110 to 160 yards away from the building, while carting water to it ; 51 where a workman was injured while doing some work he had been sent to do on a ship at a dock about 550 yards from the factory of his employers; 52 where a workman was killed at a place about two miles from the "engineering work" to which he was hauling sand from a pit; 83 where a work- man hired by a subcontractor to cart rubbish was killed in the road two miles from the site of his work ; 54 where a workman sustained an injury while stacking rails 700 yards from the "engineering" work of his employers; 55 where a miner was fatal- ly injured at a point 400 yards from the mine pit, while trans- ferring lumber from a railroad to the mine by means of a colliery cart; 58 where a driver met with an accident on the public road two miles from the factory from which he was hauling lumber to a building in the course of construction." But it has been held that where a workman was carrying goods from a factory building to a point about 32 feet distant on the other side of the street and was there injured the injury occurred about the factory; 58 that where a workman was injured while 50. Boyle v. Parker Young Co., Vt. - 1921, 112 Atl. 385. 51. Penn v. Miller, 2 W. C. C. 65 C. A. 52. Barclay, Carle & Co., Ltd., v. McKinnon, 3 F. 436 Ct. of Sess. 53. Pattison v. White & Co., 6 B. W. C. C. 61 C. A. 54. Andrews v. Andrews & Mears, 1 B. W. C. C. 264. 55. Black v. Dick Kerr & Co., Ltd., 8 W. C. C. 40, H. L. 56. Coylton Coal Co. v. Davidson, 7 F. 727, Ct. of Sess. 57. Whitton v. Bell & Sime, Ltd., IF, 942, Ct. of Sess. 58. McQovern v. Cooper & Co., 4 F. 249, Ct. of Sess. 181 42 WORKMEN'S COMPENSATION LAWS. engaged in loading a cart in the street near the entrance to his employer's premises he was about the premises. 59 42. Liability of Owner or Lessor to Employees of Lessee. Most of the acts either contain express provisions or imply liability for compensation on the part of the owner or lessor when the relation of lessor and lessee is created for the fraud- ulent purpose of avoiding liability. It has been held that the lessee of a coal mine is an indepen- dent contractor although the lessor reserves the right to inspect the premises, and it is agreed that all the workings on the prem- ises shall be done under the general supervision of the superin- tendent of the lessor. 60 Under the California Act a lessee is not a contractor of the lessor and the lessor is not liable for injuries to employees of the lessee or his subcontractors. 61 So in the case of a corporation that owned an oil well which, in default of payment of a mort- gage thereon, it turned over to the mortgagee as lessee to operate and collect the income to pay the mortgage, it was held that the corporation was not the employer of an injured workman employed by the mortgagee or lessee to look after the well. 62 In an Ohio case where a coal company, which had temporarily suspended operation of its mines, leased a portion of its lands to two former employees who employed their own help, it was held that the lessor company was not the employer of help employed by the lessees. 63 It has been held under the Wisconsin Act less- ors and lessees do not sustain the relation of principal and con- tractor to each other, and that where an employee of the lessee 59. Powell v. Brown, 12 B. 157 C. A. 1 W. C. C. 44. 60. Bokoshe Smokeless Coal Co. v. Morehead, 126 Pac. 1033, 34 Okla. 424. 61. Brain v. Eisnfelder, 2 Cal. Ind. Ace. Com. 36, 11 N. C. C. A. 378; Cypher v. United Development Co., 1 Cal. Ind. Ace. Com. (Part II) 425. 62. Farris v. Patomac Oil Co., 2 Cal. Ind. Ace. Com. 462. 63. In re Monroe, 1 Bull. Ohio Ind. Com. 186; See also Powers v. Hocking Valley Ry. Co., 31 Ohio Cir. Ct. 488. 182 WHO COMES UNDER THE ACT. 43 is injured the lessor is not liable." In a case under the Kansas Compensation Act an injured mine employee sought to hold liable both the lessor and the lessee of a mine as partners; it being shown that the lessor retained a certain supervisory con- trol over the operations of the lessee. The court in holding the lessee liable as an independent contractor said: "Whatever may be the basis of the liability of the owner in certain cases ....whether imputed agency, public necessity, or other ground, real or fictitious, this statute attaches no liability for compensa- tion to one who is not in the execution, control or management of the work, wherein the injury occurs." 65 43. Dual Employers, Employments, and Business Enter- prises. The subject of dual employers, employments, and busi- ness enterprises is as a rule not covered by specific provisions in the acts and the few decisions relating thereto are not entirely in accord. A delivery man engaged by two employers to deliver packages, had delivered all the packages belonging to A, and was on his way to deliver a package belonging to B, when he was injured, and it was held that B alone was liable for compensation. 88 So a night watchman, who has contracts of hire with six indepen- dent concerns and acts as watchman for all of them, is an em- ployee of each, and may recover from the one on whose prem- ises he is injured. 67 But a night watchman employed to patrol the outside of the premises of several firms, watching for fires and other unusual occurrances, is employed jointly by all of said firms, and they are all liable for compensation under the California Act. 68 In New Jersey it has been held, that a watch- 64. Puddy v. Ira R. Pitch, Fourth Annual Report (1915), Wis. fnd. Comm. 17. 65. Maughlelle v. J. H. Price & Sons 99 Kan. 412, 161 Pac. 907, (1916). 66. Mitchell v. Alfred Stahel & Sons, (1916), 3 Cal. Ind. Ace. Com. 303. 67. Western Metal Supply Co. v. Pillsbury, 172 Cal. 407, 156 Pac. 491; But see M. Johnston v. Mountain Commercial Co., 1 Cal. I. A. C. Dec. 100; Mason v. Metal Supply Co., 1 Cal. I. A. C. Dec. 284. 68. Frohn v. Bayle, La Coste & Co., 3 Cal. Ind. Ace. Com. 274. 183 43 WORKMEN'S COMPENSATION LAWS. man employed by several different persons to watch their premises is the joint employee of all such persons. 69 The fact that a policeman employed by a mining company, al- so happened to be a deputy sheriff and received fees from the county, did not relieve the company from liability. 70 A janitor in a public school, who also did work for other people, but was injured while at work for the school, was allowed to recover compensation from the municipal corporation employing him. 71 The fact that one is employed in a dual capacity by the defend- ant and another does not make him any the less an employee of the defendant, and the dependents may elect which of the em- ployers shall be proceeded against, under the California Act. 72 A number of firms, individuals and corporations were compelled by law to repair a dam on a stream, the water power rights being owned by them jointly. By a decree of court three referees were appointed to carry out the work to be done. It was held that the referees were the agents of the various owners and that all were liable jointly for compensation by reason of the accidental death of a workman employed by the referees, and that the amount payable by each one of the employers was proportionate to the amount of his water right in the stream where the dam was to be built. 73 A partnership was engaged to do the glazing on a building, and as such the members were independent contractors. One of the partners looked after the delivery of the glass and was paid by the general contractor for this work. He was held to be the employee of the general contractor while performing this work. 74 Where a corporation conducted a retail store and a warehouse, in which a freight elevator was operated, and therefore came 69. Curran v. Newark Gear Cutting Machine Co., 37 N. J. Law J. 21. 70. James v. Witherbee, Sherman & Co., 2 N. Y. St. Dep. Rep. 483. 71. Penfield v. Town of Glastonbury, 1 Comm. Cornp. Dec. 637. 72. Johnston v. Mountain Commercial Co., 1 Cal. Ind. Ace. Com. 100. 73. Sayres v. Ogdenbury Power & Light Co., 8 N. Y. St. Dep. Rep. 393. 74. Dyer v. James Black Masonry & Contracting Co., 192 Mich. 400, 158 N. W. 959, 15 N. C. C. A. 499. 184 WHO COMES UNDER THE ACT. 43 within the hazardous industry classification of the Illinois Act, but also conducted a farm near the city, it was held that one of its farm employees injured in the course of his employment by the kick of a horse, was not entitled to compensation under the Act, since the particular employment in which he was engaged at the time of the injury was not declared by the act to be extra hazardous." The Illinois Commission has no authority to award compensa- tion in the case of a city employee accidentally killed in a non hazardous employment even though the city may also be engaged in hazardous employments. 76 A repair shop operated by a department store company for the repair of vehicles in which machinery is used, power-driven machinery employed, and manual labor exercised, and over which the company has control or right of access, is an extrahaz- ardous business, though merely incidental to the company's principal business, and a carpenter employed in such shop is en- gaged in extrahazardous employment within the provisions of the Washington Workmen's Compensation Act. 77 In a California case the commission found that the employee was injured by accident while in employment as a janitor of a dancing hall and house and garden laborer. His injury actually occurred while pruning a fig tree. The court on appeal said: "Ohlsson was thus employed for the performance of services in two capacities : One that of a janitor, falling within the terms of the act; the other as a house and garden laborer; employees en- gaged therein being excluded from its operation. Hence, if the injury sustained by Ohlsson was due to an accident while he was engaged in labor as and under his employment as a gardner, he would not be entitled to the benefits of the act, unless the service was incidental to the work of janitor. The pruning of this fig 75. Vaughn's Seed Store v. SimoninI, 275 111. 477, 114 N. E. 168, 14 N. C. C. A. 1075. 76. Marshall v. City of Pekin, 276 111. 187. 114 N. E. 497, 14 N. C. C. A. 946. 77. Wendt v. Industrial Ins. Commission of Washington, 80 Wash. Ill, 5 N. C. C. A. 790, 141 Pac. 311 (1914); State v. Business Prop- erty Security Co., 87 Wash. 627, 152 Pac. 334, 11 N. C. C. A. 323. 185 43 WORKMEN'S COMPENSATION LAWS. tree without specific instructions so to do might well be regarded as within the scope of his employment as gardner, since the proper care thereof required such work to be done. It did not, however, interfere with the use of the driveway, and the pruning thereof had no connection with the work of janitor which by any stretch of the imagination could render it incidental there- to. Therefore the conclusion of law as found by the commission that at the time of the injury 'the applicant employee was not engaged in any of the occupations or employments excepted by section 14 of the Workmen's Compensation, Insurance and Safe- ty Act from the provisions of the said act, is without support in the facts found. Southern Pac. Co. v. Pillsbury, 170 Cal. 782, 151 Pac. 277. The New York Compensation Act does not apply to all employees, but to those only engaged in certain occupations there designated as extrahazardous, while the California act applies to all except those designated as being excluded when engaged in certain work. This being true, the decisions of the New York courts in like cases furnish a rule which we think should be followed in the case at bar." The court then cited the case of Gleisner v. Gross & Herbener, 170 N. Y. App. Div. 37, 155 N. Y. Supp. 946 (1915), in which the court said: "Where the em- ployee's ordinary duties and accustomed scope of activities do not come exclusively or predominantly within the category of enumerated employments, and only casually and incidentally does he do work fairly falling within that category, his right to remuneration must hinge on a finding that he sustained injury while actually and momentarily doing work named in the statute. If the employer shows that the employee was not so engaged when he met with injury, he is not entitled to reimbursement under the statute, even though he at times did work embraced within the statute." Also the case of Sickles v. Ballston R. S. Co., 171 N. Y. App. Div. 108, 156 N. Y. Supp. 864, where the claimant was employed as purchasing and sales agent by the de- fendant engaged in the business of storing and handling fruits, claimant being injured while buying fruit. The court said : ' ' The purchasing of goods and acquiring ownership thereto is not an incident to the business of conducting a storage house. The statute should be given a liberal interpretation, but liberality 186 WHO COMES UNDER THE ACT. 44 should not be stretched into extravagance, and it seems to me that it would be highly unreasonable to hold that this claimant was injured in a hazardous employment as described and de- fined by the statute. It certainly was not the legislative intent, in using the word 'storage' and making it a hazardous employ- ment, to include therein the duties of a purchasing agent." The court, therefore, held that the injury sustained by the employee in the instant case arose out of and in the course of his employ- ment, not as a janitor, but while engaged in garden labor, which labor is included within the term horticultural labor, in doing which he was not entitled to the benefit of the act. 78 44. Subrogation, and Third Persons as Affected by the Acts. Most of the American Compensation Acts provide that the in- jured employee may proceed either against the third person whose negligence caused the injury or against his employer for compensation. But he cannot recover from both. As a rule they also provide that the employer who has paid or is paying com- pensation is subrogated to the rights of the injured employee against the negligent third person. As to the amount that may thus be recovered from the third person the acts and decisions differ. The fact that compensation acts generally provide that the em- ployer must pay his injured employee compensation even though a third person was alone at fault, does not make them uncon- stitutional. 79 Though it has been held that in so far as the Cali- fornia act attempts to authorize an award against a third person not an employer it is contrary to the California constitution. 80 78. Kramer v. Industrial Ace. Comm. of California, 31 Cal. App. 673, 161 Pac. 278 (1916). For additional cases on, see Casual Em- ployments. 79. Stertz v. Industrial Insurance Commission, (1916), 91 Wash. 588, 158 Pac. 256; Frlebel v. Chicago City Ry. Co. et al.. 280 111. 76. 117 N. E. 467, 16 N. C. C. A. 390; Johnson v. Choate, 284 111. 214, 119 N. E 972; Peet v. Mills, 76 Wash. 437, 136 Pac. 685; Hugh Murphy Const. Co. v. Serck, Neb. , (1920), 177 N. W. 747, 6 W. C. L. J. 194. 80. Perry v. Indus. Ace. Comm., Cal. , 181 Pac. 788, 4 W. C. L. J. 350. 187 44 WORKMEN'S COMPENSATION LAWS. It has been held under the British Act that if a workman sues a third person at common law, and is defeated, he can ask the same court to assess compensation. 81 In the case of a workman injured on the premises of a third person with whom he had an agreement to accept full wages and medical service, during in- capacity, but not to exceed a period of six months, it was held that this was a recovery of damages which precluded the work- man from claiming compensation from his employer, as the re- covery of such damages need not necessarily be by legal pro- ceedings. 82 So where an employee is injured by reason of the negligence of a third persen and accepts a settlement from such third person, he is under most acts, thereby barred from making a claim for compensation , 83 It has been held, in an action at law by a widow for a tort against a third party for damages for the death of her husband, in which she did not join or subrogate the employer, that this constituted an election of remedies, and after judgment in such action is rendered against her, she cannot thereafter claim compensation. 84 Where the father of an em- ployee, who has been killed by reason of the negligence of a third party commenced an action at law against such third party for damages, an action for death benefit must be dismissed even though filed before the termination of the action at law. 85 But it has been held that the bringing of an' action by an injured em- ployee against the insurance carrier's physicians, for damages for malpractice in treating the injury does not bar the right of the employee to claim compensation. 86 Where an injured ser- vant received an award of compensation and began suit against 81. Potter v. John Welch & Son, 7 B. W. C. C. 738. 82. Page v. Burtwell, 1 B. W. C. C. 267, L. R. A. 1916A, 361, note. 83. Cook v. Employer's Liability Assurance Corp., 1 Mass. Ind. Ace. Bd. 50; Labuff v. Worcester etc., Co., 231 Mass. 170 120 N. E. 381, 2 W. C. L. J. 903; In re Cripp, 216 Mass. 586, 104 N. E. 565. 84. Moore v. Imperial Ice Co., 3 Cal. Ind. Ace. Comm., 353; But see matter of Woodward v. E. W. Conklin & Son, 171 App. Div. 736, 157 Supp. 948. 85. Newman v. Sturgis Machine Works, 3 Cal. Ind. App Com. 256. 86. McGrath v. Hydrox Chemical Co., 3 Cal. Ind. Ace. Com. 343; Pawlack v. Hayes, 162 Wis. 503, 156 N. W. 464, 11 N. C. C. A. 752. 188 WHO COMES UNDER THE ACT. 44 his physician for malpractice, it was held that the assignment of his claim, for malpractice, to the employer did not necessarily carry with it or waive further claim to compensation. 87 The provision of the California Act for subrogation to the rights of an injured employee, will not be enforced in Oregon, because in Oregon a tort action is not assignable. Therefore a claim against the deceased's employer, a California corporation, deceased being a resident of that state, will not preclude the widow's recovery against the negligent third party in Oregon on the theory that the employer was subrogated to her rights, and the widow may sue the third party and recover full compensa- tion. 88 It has been held that where the driver of a truck was injured by coming into collision with a street car, and died several days later, but before his death made a settlement with and gave a release to the street car company, this did not preclude the driver's widow from claiming compensation for his death from his employer, as the right of the dependents of the employee to compensation was independent of his rights to disability benefits before death; 89 that where the widow of a deceased workman sued a third person through whose negligence the workman is alleged to have been killed, this did not bar a claim of a depen- dent mother for compensation against the employer. 00 That an injured workman, who executed a release to a third party whose negligence caused the injury, is not estopped from claiming com- pensation from his employer because the latter did not consent to the release, and he is therefore not barred from asserting his 87. Brown v. Fuller Co., 197 Mich. 1, 163 N. W. 492. 88. Rorvlk v. Northern Pac. Lbr. Co., Ore. , (1920), 190 Pao. 331, 6 W. C. L. J. 385; Anderson v. Miller Scrap Iron Co. et al., Wis. , 182 N. W. 852. 89. In re Crlpp v. Aetna Life Ins. Co., 104 N. E. 565, 216 Mass. 586: Williams v. Vauxhall Colliery Co., 2KB. 433, 436; Howell v. Brad- ford, 104 L. T. R. N. S. 433; Milwaukee Coke & Gas Co. v. Indus. Com., 160 Wis. 247, 151 N. W. 45. 90. In re Cahill, 173 App. Div. 418, 159 N. Y. Supp. 1080; Mer- cer v. Ott, 78 W. Va. 629, 89 8. E. 952; Merril v. Marietta Torpedo Co., W. Va. , 92 S. E. 112, 14 N. C. C. A. 913. Contra, see Gray v. North British Ry. Co.. 8 B. W. C. C. 373. 189 44 WORKMEN'S COMPENSATION LAWS. claim against the third party; 91 that where an injury is caused by the negligence of a third person, and the insurance carrier of the employer has paid compensation, the right of the employee as against the third person was subrogated to the insurance carrier of the employer, and the employee then has no right of action against the third person. 92 It is held in Indiana that the insurer has the right of subroga- tion, where the policy expressly gives it "only in the event it has paid the whole liability in any given case, and not an at- tempt to provide for subrogation pro tanto," citing Knaffl v. Knoxville, 133 Tenn. 655, 182 S. W. 232, Ann. Gas. 1917 C, 1181. 93 And where the state fund has paid compensation to the in- jured servant it is entitled to be subrogated pro tanto to the right of the servant in a judgment against a third person for dam- ages. 94 It has been held that a settlement with a third person is a bar to compensation, although in making it the employee expressly reserves his right to compensation; 95 that where an employee is injured by reason of the acts of a third person and executes a release to the third person for consideration, this is a bar to a claim for compensation. 96 It has been held in New York that where an employee does not recover as much in a common-law action against a third per- 91. Woodward v. E. W. Conklin & Son, 171 App Div. 736, 157 Supp 948. .92. Royal Indemnity Co. v. Platt & Washburn Refining Co., (1917), 98 Misc. 631, 163 N. Y. Supp. 197; Louis Bossert & Sons v. Piel Bros., N. Y -- (1920), 182 N. Y. S. 620, 6 W. C. L. J. 372; Mayor and Council of Hagerstown v. Schreiner, Md. , (1920), 109 Atl. 464, 5 W. C. L. J. 858; Labuff v. Worcester Counsel. Ry's Co., 231 Mass. 170, 120 N. E. 381, 2 W. C. L. J. 903. 93. Maryland Casualty Co. v. Cincinnati C. C. St. Louis Ry. Co., Ind. App. , 124 N. E. 774, 5 W. C. L. J. 69. 94. Mayhugh v. Somerset Telephone Co., 265 Pa. 496 (1920), 109 Atl. 213, 5 W. C. L. J. 891. 95. Mulligan v. Dick, 41 Scot. L. R. 77; Murray v. North British Ry. Co., 41 Scot. L. R. 383, L. R. A. 1916A, note 361. 96. G-illiland v. Kearns, 1 Conn. Comp. Dec. 277; Silva v. Kop- perud, 2 Cal. Ind. Ace. Com. 604; Lantis v. City of Sacramento, 2 Cal. Ind. Ace. Com. 663. 190 WHO COMES UNDER THE ACT. 45 son as lie would be awarded by way of compensation under the act, that is not such an election as discharges his employer and insurer. 97 Where an injured employee was taken to the hospital, used by the employer for that purpose, it was held that that did not con- stitute an election to take compensation under the act and there- by release the negligent third party, unless it could be clearly shown that the injured employee so intended. 98 45. Subrogation and Third Persons as Affected by the Acts. It has been held, and is frequently so provided in the acts, that where the employer or his insurer is liable and pays compensation to an injured employee the legislature may require the negligent third party, who caused the injury, to reimburse them for the amounts so expended. 99 A negligent third party, whose conduct has resulted in the ac- cidental injury of the employee of another, profits materially by virtue of such provision, in that when the employee elects to claim compensation from his employer the third party is liable only for the amount of compensation paid by the employer, to- gether with the expense of suit and attorney's fees, should suit be necessary to establish the third party's negligence. It has been held under the Massachusetts Act that a dependent can proceed either against the employer or the third person whose negligence caused the death of the employee, but not 97. Matter of Woodward v. E. W. Conklin & Son, Inc., 171 App. Dlv. 736, 157 Supp. 984. 98. Wahlberg v. Bowen et al., 229 Mass. 335, 118 N. E. 645, 1 W. C. L. J. 790; Horloff v. Merwin, - - Wls. , (1920), 177 N. W. 913, 6 W. C. L. J. 416. 99. Grand Rapids Lumber Co. v. Blair. 190 Mich. 518. 157 N. W. 29. 16 N. C. C. A. 409; Vereeke v. Grand Rapids. 203 Mich. 85, 168 N. W. 1019, 2 W. C. L. J. 917; Labuff v. Worcester Consol. St. Ry. Co.. 231 Mass. 170, 120 N. E. 381, 2 W. C. L. J. 903; Davis v. Cent Vermont Ry. Co., Vt , (1921), 113 All. 539: But see Keerans v. Peoria etc. Traction Co., 277 111. 413, 113 N. E. 636. where it was beld that the Act does not affect third persons in this respect, where they are not under it. 191 45 WORKMEN'S COMPENSATION LAWS. against both; 1 that where an employee accepts compensation he is precluded from bringing an action against a third person, whose negligence caused the injury, because the right to proceed against such third person is subrogated to the employer or his insurer ; 2 that an insurer may prosecute an action in the name of the widow and administrator of a deceased employee for its own benefit; 3 that an option to accept compensation under the Act instead of damages, exercised on behalf of an infant will be set aside, if it be not for the infant's benefit. 4 But it has been held in New York that the widow may elect for a minor child, the election being binding. 5 It has been held, under the Nebraska Act, that the fact that an employer was insured against loss occasioned by compensation to an injured workman, does not bar the employer's right to sub- rogation against a third person; 6 that an employer might as- sign his right to the employee and enable the employee to sue the third party; 7 that where a city paid compensation to its ser- vant's widow' for his wrongful death, as provided in the Wis- consin Act, her cause of action against the tortfeasor, who caused 1. Barry v. Bay State St. Ry. Co., 220 Mass. 366, 110 N. E. 1031; Woodcock v. London & Northwestern Ry., 6 B. W. C. C. 471; Ma- Bomed v. Mounsell 1 B. W. C. C. 269; Labuff v. Worcester Consol. Ry. Co.., 231 Mass. 170, 120 N. E. 381, 2 W. C. L. J. 903; Anderson v. Miller Scrap Iron Co., Wis. , 182 N. W. 852. 2. Hall v. Henry Thayer & Co., 225 Mass. 151, 113 N. E. 644; Royal Indemnity Co., v. Platt etc. Refin. Co., 98 Misc. Rep. 631, 163 N. Y. Supp. 197; Turnquist v. Hannon, 219 Mass. 560, 107 N. E. 443. 14 N. C. C. A. 1015; Muncaster v. Graham Ice Cream Co., Neb. , 172 N. W. 52; Dallas Hotel Co. v. Fox, Tex. Civ. App. , 196 S. W. 647; Contra, Houlihan v. Sulzberger & Sons Co., 282 111. 76, 118 N. E. 429, 1 W. C. L, J. 536; City of Aust'n v. Johnston, Tex. , 204 S. W. 1181. 2 W. C. L. J. 845; Merrill v. Marietta Torpedo Co., 79 W. Va. 669, 92 S. E. 112. 3. Hall v. Thayer & Co., 225 Mass. 151, 113 N. E. 644. 4. Ford v. Wren & Dunham, 5 W. C. C. 48; Stephens v. Dudbridge Iron Works Co., 6 W. C. C. 48. 5. Hanke v. New York Consol. Ry. Co., 168 N. Y. S. 234, 16 N. C. C. A. 399. 6. Otis Elevator Co. v. Miller, 153 C. C. A. 302, 240 Fed. 376. 7. Thomas v. Otis Elevator Co., 103 Nebr. 401, 172 N. W. 53, 4 W. C. L. J. 114. 192 WHO COMES UNDER THE ACT. 45 his death, became the property of the city with which it might deal as it chose; 8 that under the Texas Act, prior to 1917, the insurance carrier that had paid compensation, was not subro- gated to the rights of employees against a third person, whose negligence alone caused the injury. 9 But now the insurer's right to subrogation is established more in accord with the law in many other states, the insurance car- rier or employer has the right of subrogation limited to the amount paid, and where the employee proceeds against the third party, the employer or insurance carrier should be made a party to the suit. The fact that the employee has received compensa- tion does not bar the action against the third party. 10 But in Iowa where the employee has first recovered from the third party and afterwards receives compensation from the employer, the employer has no right of action or subrogation against the third party. 11 Contra to the Towa holding on the above point is the holding in Connecticut, New York, and California. In a Con- necticut case an employee accepted a sum in excess of the amount allowed by compensation and released the third party before adjusting his compensation claim. It was held that the 8. Saudek v. Milwaukee Elect R. etc. Co., 163 Wis. 109, 157 N. W. 579; Marshall Jackson Co. v. Jeffery, 167 Wls. 63, 166 N. W. 647. 1 W. C. L. J. 892. 9. Austin v. Johnson, Civ. App. , 204 S. W. 1181. 2 W. C. L. J. 845; Aetna Life Ins. Co. v. Otis Elevator Co.. Tex. Civ. App. , 204 S. W. 376, 2 W. C. L. J. 592; Texas etc. R. Co. v. Archer (Civ. App.) 203 S. W. 796, 2 W. C. L. J. 391. 10. The Emilia De Perez, 248 Fed. 480, 2 W. C. L. J. 11; Lan- caster v. Hunter, Tex. Civ. App. , 217 S. W. 765, 5 W. C. L. J. 612, Black v. Chicago Great Western R. Co., Iowa , 174 N. W. 774. 5 W. C. L. J. 218; Wm. Cameron & Co. v. Gamble, Tex. Civ. App. , 216 S. W. 459, 5 W. C. L. J. 312; Fidelity & Casualty Co. v. Cedar Valley Electric Co., - - Iowa , 174 N. W. 709, 5 W. C. L. J. 228: City of Shreveport v. Southwestern Gas & Electric Co., 145 La. 680. 82 So. 785, 4 W. C. L. J. 605; Moreno v. Los Angeles Transfer Co.. Cal. , 186 Pac. 800, 5 W. C. L. J. 489: Stackpole v. Pacific Gas & Elect. Co., Cal. , 186 Pac. 354, 5 W. C. L. J. 461; Western States Gat? 6 Electric Co. v. Bayside Lumber Co., 187 Pac. 735, 5 W. C. L. J. 649. 11. Southern Surety Co. v. Chicago, St. P. M. & O. Ry. Co., Iowa . 174 N. W. 329, 4 W C. L. J. 710. 193 W C 13 45 WORKMEN'S COMPENSATION LAW money so paid should be applied to the obligation of the em- ployer to ra. v compensation. 12 And in New York, the law being that the claimant for compensation must assign his right against third parties, for the benefit of the state insurance fund, or the person or corporation liable for compensation, where a claimant was assaulted and the wrong doers were required under court decree to pay the claimant some money in order to suspend their sentence for assault, it was held that the employer was entitled to credit for the amounts so paid. 13 "Where the dependent mother elected to receive compensation and the employer never prosecuted its right to subrogation against the third party, the employer cannot have the compen- sation claim reduced by the amount received by the mother from the administrator of the deceased's estate, the administrator hav- ing recovered from the third party under the Survival Act for negligent killing. Had the employer pfosecuted his claim against the third party and recovered, the amount so recovered would then have been considered in the administrator's action against the third party. 34 It has been held in Michigan that the personal representa- tive of a deceased employee, by making settlement with the negligent third party, does not thereby release the deceased's employer from liability to pay compensation, nor affect the right of the employer to proceed against such third party which he may do as if no settlement had been made. 15 The wording of the California Act vests the right of subro- gation in the employer and consequently the holding in California is contrary to the Iowa case last above mentioned. The court said in a recent case: "The interest of the employer in the causo of ac- tion which the injured employer has against the third party, whose negligent act caused the injury, is in the nature of a lien 12. Rosenbaum v. Hartford News Co., 92 Conn. 398, 103 Atl. 120, 1 W. C. L. J. 930. 13. Dietz v. Solomonwitz, 179 App. Div. 560, 166 N. Y. S. 849, 16 N. C. C. A. 414. 14 Vereeke v. City of Grand Rapids, 203 Mich. 85, 168 N. W. 1019, li W. C. L. J. 917. 15. Naert v. Western Union Tel. Co., Mich. , 172 N. W. 606. 194 WHO COMES UNDER THE ACT. 45 thereon which he can enforce by action in his own name and which right cannot be impaired or destroyed by any act of the injured employee not concurred in by the employer. 18 In California an insurance carrier and the injured employee may join in an action against the negligent third party, with out an award of compensation having been made, because li- ability to pay compensation is created by the act, and not by th award. 17 Under the Kentucky Act an employee injured by the negli- gence of a third party may, after receiving compensation from the employer, join his employer in a suit to recover against th v negligent third party, his employer being entitled to receive the amount of compensation paid to the employee from UMJ amount recovered from the third party. 18 Under the Michigan Act, providing for recovery by the em- ployer or insurer from a third party tort-feasor, payment of compensation either by agreement or by order of the Industrial Accident Board, is prima facie evidence of the tort-feasor's liability. 19 It has been held that where a city paid a foreman full wages while disabled through the negligence of a third person, this did not operate as an assignment of his right ofl action to the city under the Wisconsion Act, because a foreman is not covered by it; 20 that the negligent third party cannot be sued by the employer's insurance company when he has already been sued by the employee's widow for the same act; 21 that an employee's assignment of his cause of action, against a thinl party vested title thereto in the employer who could not *** divested thereof, against bin consent, by either the employee or 16. Papineau v. ind. Ace. Comm., Cal. , 187 Pac. 108, 5 W. C. L. J. 492; Mass. Bonding & Ins. Co. v. San Francisco-Oakland Terminal Ry., 39 Cal. App. 388, 178 Pac. 974, 3 W. C L. J. 574. 17. Moreno .v. Los Angeles Transfer Co., Cal. App. , 186 Pac. SOO. 18. Book v. City of Henderson, - - Ky. App. , 197 S. W. 499, A 1 W. C. L. J. 678. 19. Grand Rapids Lumber Co. v. Blair, 190 Mich. 518, 157 N. W. 29; But see Brabon v. Gladwin Light etc. Co., 201 Mich. 697. 167 N. XV. 1024, 2 W. C. L. J. 302. 20. Hornburg v. Morris, 163 Wis. 31, 157 N. XV. 556. 21. Dettliff v. Hammond, etc. Co., 195 Mich. 117, 161 N. W. 949. 195 45 WORKMEN'S COMPENSATION LAWS. the commission; 22 that where the dependents elected to claim under the act, and the cause of action against the third person was assigned to the insurance carrier of the employer, tle carrier could maintain the action against the third person; 23 that the question of the third parties negligence was for the jury to decide; 24 that though the employer's negligence concurred with that of a third person that does not bar the employer's right to subrogation against such third person; 25 that under the Michigan Act, an employer, having made a payment to an injured employee, may recover against a third person guiltv of negligence regardless of whether the payment is in full or only partial; 26 than an employee, by accepting compensation under the New York Act, subro gates to his employer any cause of action he might have against a third person for negligently causing the employee's injury, 21 and the employer or his in- surer who is compelled to pay compensation to an employee in- jured by reason of the negligence of a third person is not limit- ed in the recovery against the third person to the actual com- pensation liability or payment, 28 though any excess recovery 22. Sabatino v. Crimmins Const. Co., 102 Misc. Rep. 172, 168 N. Y. S. 495, 1 W. C. L. J. 709. 23. Traveler's Ins. Co. v. Padula Co., 224 N. Y. 397, 121 N. E. 348, 3 W. C. L. J. 339. 24. Royal Indemnity Co. v. Platt etc. Refln. Co., 98' Misc. Rep. 631, 163 N. Y. S. 197. 25. Otis Elevator Co. v. Miller, 153 C. C. A. 302, 240 Fed. 376. Held otherwise where the employer's other employees as well as the negli- gence of the third person contributed to the injury. Cory v. France F. & Co., 1 K. B. 114 (Eng.) L. R. A. 1916A (note) 362. 26. Albrecht v. Whitehead etc. Iron Works, 200 Mich. 108, 166 N. W. 855, 1 W. C. L. J. 1013; Also N. Y. see Casualty Co, of America v. A. C. Sweet Elect. Light & Power Co., 174 N. Y. App. Div. 825, 162 N. Y. S. 107; Henderson T. & T. Co. v. Owensboro H. T. & J. Co., Ky. , 233 S. W. 743. 27. Miller v. New York Railway Co., 171 App. Div. 316, 157 Supp. 200; Royal Indemnity Co. v. Platt etc. Refin. Co., 98 Misc. Rep. 631, 163 N. Y. S. 197; United States Fidelity & Guaranty Co., v. New York Rys. Co., 93 N. Y. Misc. 118, 156 N. Y. S. 615, 14 N. C. C. A. 1018. 28. Casualty Co. v. Swett Elect Co., 174 App. Div. 825, 162 N. Y. S. 107; Otis Elevator Co. v. Miller (Nebr.) 153 C. C. A. 302, 240 Fed. 376: See also U. S. Fidelity & Guaranty Co. v. N..Y. Railways Co., 156 N. Y. S. 615, 93 Misc. Rep. 118. 196 WHO COMEb UNDER THE ACT. 45 should be paid to the injured employee. 29 Where the employee in an action against the negligent third party, recovers an amount greater than that allowed under the compensation act, the employer has no right of action against such third party. 80 Tn Illinois, when the third party is not under the act, the em- ployer or employee may bring the action against the third party. The employer being subrogated to the amount he had paid or is bound to pay, and all in excess recovered is paid to the employee. Where the employee brings the action he may prosecute the claim for compensation at the same time. 81 But where the third party is also under the act and the injury arose out of and in the course of the employment, the employee is limited to his compensation, and the employer is subrogated to the right of the employee, the recovery being limited to the amount payable under the act. 82 Where the third party is under the act but the injury did not arise in the course of the employment, an action will lie and the amount of recovery is not limited to the compensation rate. 88 In Minnesota the employer's right of recovery against the third party, where he has been subrogated by the employee's election to accept compensation, depends upon whether the proximate cause of the injury was the negligent act of the third party. 34 In Minnesota the employer is subrogated to the 29. Western Gas & Elect. Co. v. Bayside Lbr. Co., Cal. , (1920). 187 Pac. 735, 5 W. C. L. J. 649; Stockpole v. Pac. Gas. & Elect Co., - Cal. , 186 Pac. 354; See S. Dak. Act, 1921, Amendment, 9446. 30. Louis Bossert & Sons v. Piel Bros., N. Y. , (1920), 182 N. Y. S. 620; 6 W. C. L. J. 372. 31. Houlihan v. Sulzberger, 282 111. 76, 118 N. E. 429, 1 W. C. L. J. 536; Gones v. Fisher, 286 111. 606, 122 N. E. 95, 3 W. C. L. J. 596. 32. Frlebel v. Chicago City Ry. Co., 280 111. 76, 117 N. E. 467, 1 W. C. L. J. 18; Keeran v. Peoria. Bloominglon, Champaign, Traction Co., 277 111. 413, 115 N. E. 636, 16 N. C. C. A. 406; Mahowald v. Thompson Starrett, 134 Minn. 113, 158 N. W. 913, 14 N. C. C. A. 904; Vose v. Central Illinois Pub. Serv. Co., 286 111. 519. 33. Hade v. Simmons, 132 Minn. 344, 157 N. W. 507, 14 N. C. C. A. 907; Otto v. Duluth St. Ry. Co., 138 Minn. 312, 164 N. W. 1020, 16 N. C. C. A. 402; Podgorski v. Kerwin, 144 Minn. 313, 175 N. W. 694, 5 W. C. L. J. 544. 34. Carlson v. Minneapolis St. Ry. Co., 143 Minn. 129, 173 N. W. 405. 4 W. C. L. J. 513. 197 45 WORKMEN'S COMPENSATION LAW rights of the employee against the third party to the extent of the compensation paid by the employer. 35 Where the third party exercises control over the actions of the injured employee it brings him under the provisions of the act, and the right to sue the third party at common law is lost, and the employee may look to his employer, the third party or both for com- pensation under the Acts. 36 It has been held that an employee who is injured while in the service of a corporation cannot sue its president for common law damages, as his only remedy is his claim for compensation under the statute, 37 but that an injured employee entitled to compensation might sue his employer's foreman, as a 'third person' whose negligence caused the injury; 38 that a negligent third per- son, who has accepted the Compensation Act, is nevertheless subject to a suit at common law for damages by the employee of another who was liable for compensation, had the employee elected to accept compensation. 38 "What constitutes an election to accept compensation where the employees or his dependents have a right of action against third parties is a question of fact. It has been held that the fact that a widow accepted some compensation from the employer of her deceased husband, not having made a claim or having any agree- ment approved by the Board, does not constitute an election, and an action against the third party was not barred. 40 In a somewhat similar case the employer and employee made an agreement that the money paid as compensation should be returned in the event of a recovery against the third person. It was held that the action 35. Hansen v. Northwestern Fuel Co., Minn. , 174 N. W. 726. 36. Lee v. Cranford Co., 182 App. Div. 191, 169, N. Y. S. 370, 1 W. C. L. J. 854. 37. Peet v. Mills, 76 Wash. 437, 136 Pac. 685, 4 N. C. C. A. 786; Winter v. Peter Doelger Brewing Co., 175 App. Div. 796, 162 N. Y. S. 469, 14 N. C. C. A. 909; Northern Pacific Ry. Co. v. Meese, 239 U. S. 614, 10 N. C. C. A. 939, 60 L. Ed. 467. 38. Churchill v. Stephens, 91 N. J. L. 195, 102 Atl. 657, 1 W. C. L. J. 651. 39. Smale v. Wrought Washer Co., 160 Wis. 331, 151 N. W. 803. 40. Brabon v. Gladwin Light & Power Co., 201 Mich. 697, 167 N. W. 1024; 2 W. C. L. J. 302, 16 N. C. C. A. 392. 198 WHO COMES UNDER THE ACT. 45 against the third party was not precluded by the receipt of com- pensation, as the employee was bound to return it in the event of a recovery, and hence would be held to have recovered against only one of the parties. 41 Where the widow of a deceased employee entered into an agree- ment with the employer whereby she was to proceed against the third party, and the agreement provided that in the event the recovery against the third party was not equal in amount to the sum she was entitled to under the compensation law tha insurance carrier of the employer would pay such difference, and it was further agreed that should the carrier be financially unable to meet the claim the employer would be held harmless, the court held that such an agreement was not binding and so did not consti- tute an election to accept compensation and the action against the third party was not therefore barred. 42 It has been held that where the employer's right to sue the third person was established, the employer could assign it to an- other who could bring the action; 43 that third person may set up as a defense the fact that the injured employee has been paid compensation as provided under the Act; 44 that the employee's failure to pay his hospital bill for the first two weeks, when not requested so to do, does not constitute an election to accept com- pensation and release the third person. 45 Under the Kansas Act a claimant may maintain a proceeding for compensation against the employer and also an action against the third party, but can recover against only one. As stated by the court: "The statute thus gives a sort of dual cause of action, for compensation and for damages, but qualifies and limits tli.- recovery to the one or the other. The plaintiff has not accepted 41. Mingo v. Rhode Island Co., 41 R. I. 423. 103 Atl. 965, 2 W. C. L. J. 562. 42. Dettloff v. Hammond, Standish ft Co., 195 Mich. 117, 161 X. W. 949, 14 N. C. C. A. 901. 43. McGarvey v. Independent Oil ft Grease Co., 156 Wig 580, 146 N. W. 895, 5 N. C. C. A. 803; Frankfort Gen. Ins. Co. v. City of Milwaukee. 164 Wis. 77, 159 N. W. 581, 14 N. C. C. A. 1014: Saudek v. Milwaukee Elec. Ry. ft Light Co 163 Wis. 109. 157 N. W. 579, 14 N. C. 0. A. 1021. 44. Miller v. N. Y. Railways Co. 157 N. Y. S. 200 171 App. Div 316. 45. Wahlberg v. Bo wen (Mass.), 118 N. E. 645. 1 W. C L. J. 792. 199 45 WORKMEN'S COMPENSATION LAWS. the compensation provided for her and her children under the arbitration proceedings, and she has done nothing to estop herself from exercising her dual action conferred by the statute. The time will probably come in the course of the present lawsuit when plantiff must elect whether she will accept the compensation pro- vided for her or accept the damages which she may recover against Hoffman, provided she successfully maintains her cause of action against him, but there is nothing in the statute which says or infers that she need choose between the damages and the compen- sation until she knows definitely which is the more to her ad- vantage. In this respect the Kansas statute differs from some other state laws. English and Scotch decisions are cited by de- fendants, but upon careful examination we discern nothing therein which detracts from the views herein expressed. See, also, Colum- bia Law Review, June 1918, vol. 18, No. 6, p. 598. " 46 But under the Washington Act an employee has only his right of action against the employer and cannot maintain an action against the third party causing the injury unless the injury caused by the third party \vas incurred ''away from the plant of the employer. ' ' 47 The claim of the employee against a negligent third party on account of personal injuries has been held to be assignable to one who is a stranger to the entire matter. 48 Assignment by the injured employee to his employer of so much of his claim against the third party as will indemnify the employer for compensation paid, does not bar the employee's right of action against such third party. 49 A widow may not assign her right of action for the death of her husband under the Oregon Employers' Liability Act. But 46. Swader v. Kansas Flour Mills Co., 103 Kan. 378, 176 Pac. 143, 3 W. C. L. J. 129. 47. Zenor v. Spokane & I. E. R. Co., 109 Wash. , 186 Pac. 849, 5 W. C. L. J. 634; Madden v. Northern Pac. Ry. Co., 242 Fed. 981, 16 N. C. C. A. 407. See Utah Act, 1921 Amendment, 3133. 48. Shreveport v. Southwestern Gas & Elec. Co., 140 La. , 74, So. 559; Phoenix Const. Co. v. Witt & Saunders, Tex. Civ. App. , 190 S. W. 780. 49. Lancaster v. Hunter, Tex., Civ. App. , 217 S. W. 765. 200 WHO COMES UNDER THE ACT. 45 where she accepts compensation from the employer, her right against a third party passes to the employer and any excess re- covered by him under such right against a third party must be held for the benefit of the widow as the right of action is :ndivi- sible and belongs to two persons, and in case the employer re- fuses to join as a plaintiff he may be made a defendant. 80 The bringing of an action by the widow of the deceased, his administratrix, against the negligent third party to recover dam- ages under How. Ann. St. Mich. 1912, Par. 13702-3, was held not to amount to a waiver of her right to claim compensation from the employer under the workmen's compensation act, despite St. 1919, Par. 2394-25, Subd. 2." Mere negotiations with a third party does not constitute a claim precluding the injured party from claiming compensation from the employer, since a claim under the statute means a de- mand of some matter of right made by one person upon another to do or to forbear to do some act or thing as a matter of duty. 52 It has been held in Michigan that where an employee may pro- ceed against either his employer or a third person and he files suit against the third person and later petitions for compensa- tion, the action at law will abate. 58 Under the Federal Act, where an employee proceeds against a third party and recovers, the commission is entitled to have the amount recovered, less court costs and reasonable attorneys fees, credited against the award under the act ; and the employee may recover the difference from the commission. 54 Where a suit against a third party would be futile, compensa- tion will be allowed under the Federal Act. 55 60. Rorvik v. N. Pac. Lbr. Co., 195 Pac. 163, Ore. , (1921). 51. Miller Scrap Iron Co. v. Indus. Comm, Wis. , 180 N. W. 826. 62. Town of Stcphenson v. Indus. Comm., Wls. , (1921), 180 N. W. 842. 58. Barbon v, Glad win Light ft Power Co. Mich. , 167 N. W. 1024, 2 W. C. L. J. 802. 64. In re Wm. E. Davis, 2nd A. R. U. S. C. C. 234; In re Fay P. Les- lie, 2nd A. R. U. S. C. C. 235; In re Solomon Schubert. 2nd A. R. U. S. C. C. 235; In re Chas. W. Polnsett, 2nd A. R. U. S. C. C. 235. 65. In re Wm. E. Davis. 2nd A. R. U. S. C. C. 236; In re L, B. Aahton, 201 46 WORKMEN'S COMPENSATION LAW Where the vice president of a corporation causes injury to an employee of the corporation such vice president is a "person other than the employer" within the compensation act and therefore the employee is entitled to elect against whom he shall proceed. 56 It is held under the Federal Act that where the recovery against a third party is more than the amount due from the com- mission, the excess will be credited to the commission in lieu of any future claim which may be made for other injuries to the claimant. 57 Damages to claimant's watch collected from a third party was held to be a proper credit against the amount due from the Federal Commission. 58 Under the Louisiana Act the employer is subrogated to all rights, of the employee against a third party causing the injury, and a claimed right of subrogation to the injured employee by the third party upon payment of the claim to the employee will not avail the third party anything. 59 A third party causing injury to an employee cannot affect the employer's right of subrogation to the extent of the compensa- tion awarded, by settling with the employee without the em- ployer's consent. 60 46. Cases Exclusively Covered by Federal Law. Cases ex- clusively covered by any federal law, are as a rule expressly or impliedly excluded from the operation of the compensation acts by special .provisions of the acts. While such cases would be ex- 2nd A. R. U. S. C. C. 237; In re Jeremiah S. Irish, 2nd A. R U. S. C. C. 237. 56. Webster v. Stewart, Mich. , (1920), 177 N. W. 230, 6 W. C. L. J. 63. 57. In re Jame? M. Ferreebee, 2nd A. R. U. S. C. C. 238. 58. In re Geo. Holman. 2nd A. R. U. S. C. C. 239. 59. McClintic Marshall Co. v. Oleary, La. , (1920). 84 So. 503, 6 W. C. L. J. 179. 60. . Hugh Murphy Const. Co. v. Serck, Neb. , (1920), 177 N. W. 747, 6 W. C. L. J. 194. Note, see Sections 466 and 467. 202 WHO COMES UNDER THE ACT. 46 eluded regardless of such provisions, it nevertheless becomes a matter of importance to determine what cases, .otherwise within the provisions of the acts are exclusively covered by federal law. On May 17, 1917, the Supreme Court of the United States handed down a decision to the effect that the State Compensa- tion Acts do not apply in any event to interstate employees on railroads, as the Federal Employers' Liability Act of 1908 as amended in 1910 (Section 8657-8665 United States Compiled Statutes 1916, page 9338), affords the exclusive remedy in such cases. 61 The following quotation from the opinion in that case is pertinent and throws much light on this subject concerning which there has been considerable controversy. "It is settled that under the commerce clause of the Constitution, Congress 61. N. Y. Cent. R. R. Co. v. Winfield, 244 U. S. 147, 37 Supp. 546, 61 L. Ed. 1045 Ann. Cas. 1917D, 1139; rev'g Winfield v. N. Y. Cen. R. R. Co., 216 N. Y. 284, 110 N. E. 614, 10 N. C. C. A. 916: Winfleld v. Erie R. R. Co., 88 N. J. Law 619, 96 Atl. 394, 37 Sup. Ct. Rep. 556, A 1 W. C. L. J. 41. and affirming the doctrine of Smith v. Ind. Ace. Com. of Cal., 26 Cal. App. 560, 147 Pac. 600; Staley v. 111. Cen. R. R. Co., 268 111. 356, 109 N. E. 342; Matney v. Bush, 102 Kan. 293, 169 Pac. 1150, 1 W. C. L. J. 617; Walker v. Chicago etc. R. R. Co., (Ind. App) 117 N. E. 969, 1 W. C. L. J. 362; See also, Rounsaville v. Cen. Railroad, 90 N. J. Law 176, 101 Atl. 182, reversing judgment 87 N. J. L. 371, 94 Atl. 392; McKenna v. N. Y. Cent. R. Co., 202 Mich. 103, 167 N. W. 900, 2 W. C. L. J. 300; Miller v. Grand Trunk Western R. Co., 201 Mich. 72, 166 N. W. 833, 1 W. C. L. J. 1021; Crecilius v. Chic. etc. R. Co., (Mo.) 205 S. W. 181, 2 W. C. L. J. 809; The Erie Lighter (D. C.) 250 Fed. 490, 2 W. C. L. J. 606; Erie R. Co. v. Downs. (C. C. A.), 250 Fed. 415, 2 W. C. L. J. 599; 111. Cent. R. Co. v. Ind. Bd., 284 111 2667, 119 N. E. 920, 2 W. C. L. J. 444; See Brinsko's Estate v. Lehigh Valley R Co., 90 N. J. L. 658, 102 Atl. 390, 1 W. C. L. J. 431. For a complete discussion of all cases on this subject prior to the above decision of the Supreme Court see L. R. A. 1916A, (note), 461; also 9 N. C. C. A. note 286-307, 6 N. C. C. A. (note) 920-933, 10 N. C. C. A. (note) 916-925; Kinsellaco v. N. Y. Cent. R. Co., 175 N. Y. S. 363, 186 A. D. 856, 4 W. C. L. J. 134; Reilly v. Erie Ry. Co., 264 Penn. 329. 107 Atl. 736, 4 W. C. L. J. 639; N. Y. Cent. R. R. Co. v. Porter, 249 U. S. 168; Phil. & R. Ry. Co. v. Hancock, 40 Sup. Ct. 512, 6 W. C. L. J. 247; Williams v. Schaff, Mo. , (1920), 222 S. W. 412, 6 W. C. L. J. 346; Wangerbro v. Indus. Bd., 111. , 121 N. E. 724, 3 W. C. L. J. 439; Erie R. Co. r. Krysienski, 238 Fed. 142, A 1 W. C. L. J. 59; Tandrum v. Western A. R. Co., Ga. , 90 S. E. 710, A 1 W. C. L. J. 298; Savon v. Erie Ry. Co., N. Y. App. , 116 N. E. 983, B 1 W. C. L. J. 205. 203 46 WORKMEN'S COMPENSATION LAWS. may regulate the obligation of common carriers and the rights of their employees arising out of injuries sustained by the latter where both are engaged in interstate commerce; and it also is settled that when Congress acts upon the subject all State laws covering the same field are necessarily superseded by reason of the supremacy of the national authority. Congress acted upon the subject in passing the Employer's Liability Act, and the ex- tent to which that act covers the field is the point in controversy. By one side it is said that the act, although regulating the liabili- ty or obligation of the carrier and the right of the employee where the injury results in whole or in part from negligence at- tributable to the carrier, does not cover injuries occurring with- out such negligence, and therefore leaves that class of injuries to be dealt with by State laws; and by the other side it is said that the Act covers both classes of injuries and is exclusive as to both. The State decisions upon the point are conflicting. The New York court in the present case and the New Jersey court in Winfield v. Erie R. R. Co., 88 N. J. Law 619, hold that the Act relates only to injuries resulting from negligence, while the Cali- fornia court in Smith v. Industrial Accident Commission, 26 Cal. App. 560, and the Illinois court in Staley v. Illinois Central R. R. Co., 268 111. 356, hold that it has a broader scope and makes negligence a test not of the applicability of the Act, but of the carrier's duty or obligation to respond pecuniarily for the in- jury. In our opinion the latter view is right and the other wrong. * * * The Act is entitled, 'An Act relating to the liability of com- mon carriers by railroad to their employees in certain cases,' and the suggestion is made that the words 'in certain cases' require the Act be restrictively construed. But we think these words are intended to do no more than to bring the title into reasonable accord with the body of the Act, which discloses in exact terms that it is not to embrace all cases of injury to the employees of such carriers, but only such as occur while the carrier is engag- ing and the employee is employed in 'commerce between any of the several States,' etc. See Employers' Liability Cases, 207 U. S. 463. "Only by disturbing the uniformity which the Act is designed to secure and by departing from the principle which it is intended 204 WHO COMES UNDER THE ACT. . 46 to enforce can the several States require such carriers to compen- sate their employees for injuries in interstate commerce occurring without negligence But no State is at liberty thus to intertere with the operation of a law of Congress. As before indicated, it is a mistake to suppose that injuries occurring without negligence are not reached or affected by the Act, for, as is said in Prigg v. Pennsylvania, 16 Pet. 539, 617, 'if Congress have a constitutional power to regulate a particular subject, and they do actually regu- late it in a given manner, and in a certain form, it cannot be that the State legislatures have a right to interfere; and, as it were, by way of complement to the legislation of Congress, to prescribe additional regulations, and what they may deem auxiliary provisions for the same purpose. In such a case, the legislation of Congress, in what it does prescribe, manifestly indicates that it does not intend that there shall be any further legislation to act upon the subject-matter. Its silence as to what it does not do, is as expressive of what its intention is as the direct provisions made by it.' Thus the Act is as comprehensive of injuries occur- ring without negligence, as to which class it impliediy excludes liability, as it is of those as to which it imposes liability. In other words, it is a regulation of the carrier's duty or obligation as to both. And the reasons which operate to prevent the states from dispensing with compensation where the Act requires it equally prevent them from requiring compensation where the Act witholds or excludes it." It has been held that where a street car company is both an intrastate and an interstate carrier an employee injured while operating a car confined to intrastate traffic is not coverel by the Federal Employers Liability Act. 62 This act refers to interstate commerce, and if the employee at the time of the injury is engaged in interstate transportation, or in work so closely related thereto as to be practically a part thereof, then he must resort to his remedy, if any, under this act, and is not entitled to benefits under the State Workmen's Compensation Act." Construction work was 62. Watts v. Ohio Valley Elec. Ry. Co., 78 W. Va. 144, 88 S. E. 659. 63. 111. Cent. R. Co.. v. Ind. Bd. 284 111. 267, 119 N. E. 920, 2 W. C. L. J. 444; Vollmers v. N. Y. Cent. R. Co., 180 App. Dlv. 60, 167 N. Y. S. 428, 1 205 46 WORKMEN'S COMPENSATION LAVI held not to be so closely related to interstate transportation as to be a part of it. 64 The test as to whether an employee was engaged in interstate commerce at the time of the injury is whether the performance of the act he was engaged in directly and immediately tended to facilitate the movement of interstate commerce. Therefore, where an employee was unloading concrete tile, which had been shipped from another state, after it arrived at its destination and was injured when leaving the place on a gasoline car, he was not en- gaged in interstate commerce. 65 But where an employee was injured when unloading ties from a car being hauled on a main line between Omaha and Chicago, which ties were to be used to replace old ties, he was engaged in interstate commerce. 68 The fact that an employee engaged in interstate commerce files a claim for compensation under the State Workmen's Compensa- tion Act does not deprive him of his right of action under the Federal Employer's Liability Act, 67 nor does the fact that the W. C. L. J. 253, Chicago, etc. R. Co. v. Harrington, 241 U. S. 178, 36 Sup. Ct. 517, 50 L. Ed. 941; Shanks v. Delaware, etc. R. Co., 239 U. S. 556, 36 Sup. Ct. 188, 60 L Ed. 436, L. R. A. 1916C, 797; Eskelson v. Union Pac. R. Co., 102 Neb. 423, 168 N. W. 366, 2 W. C. L. J. 665; N. Y. Cent. R. Co. v. White, 243 U. S. 188, 37 Sup. Ct. Rep. 247 L. R. A. Ann. Cas. 1917D, 629; Southern Pac. Co. v. Ind. Ace. Comm. of Cal., 40 Supp. Ct. 930, 5 W. C. L. J. 341; Bergeron v. Texas & Pac. R. Co., 144 La. 225, 80 So. 262, 3 W. C. L. J. 305; Guida v. Penn. R. R. Co., 183 App. Div. 822, 2 W. C. L. J. 679. 64. Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146, 152, 57 L. Ed. 1125 Ann. Cas. 1914C, 153, Chic. C. B. & Q. R. Co. v. Harrington. 241 U. S. 178, 36 Sup. Ct. 517, 60 L. Ed. 941. 65. Morrison v. Chicago M. & St. P. Ry. Wash. , 175, Pac. 325, 3 W. C. L. J. 81; Hudson & M. R. Co. v. lorio (N. Y.) 239 Fed. 855, A 1 W. C. L. J. 57; Christy v. Wabash Ry. Co., Mo., 191 S. W. 241; Giovio v. N. Y. Cent. R. R. Co., 162 N. Y.. 1026, B 1 W. C. L. J. 1226. 66. Reed v. Dickinson, {Iowa), 169 N. W. 673; Gulf C. & S. F. Ry. Co. v. Drennan, 204 S. W. 691, Tex. Civ. App. , 2 W. C. L. J. 701, 241 U. S. 177, 180; 11 N. C. C. A. 992; Raymond v. Chicago, M. & St. P. R. Co., 243 U. S. 43, 147 C. C. A. 245, 233 Fed. 239; Delaware, L. & W. R. Co. v. Yurkonia 238 U. S. 439. 67. Troxell v. Del. L. & W. R. R. Co., 227 U. S. 434, 33 Sup. Ct. 274, 57 L. Ed. 586; Waters v. Guile, 148 C. C. A. 298, 234 Fed. 532; nor con- 206 WHO COMES UNDER THE ACT. 4f> defendant railroad ompany paid part of the injured servant '< hospital hill, show an acceptance of the Michigan Workmen's Com- pensation Act so as to exclude suit under the Federal Employer's liability Act." 9 It has been held that where the employing railroad is engaged in both interstate and intrastate commerce, to relieve itself of the obligation to pay compensation under the Illinois Compensa- tion Act, (Hurd's Rev. St. 1917, c. 48, Sees. 126-152) it had the burden of showing that at the time of the injury the servant was actually engaged in interstate commerce; 8 " that in a proceeding to recover compensation the burden was on the petitioner to show affirmatively that decedent was engaged in intrastate service not regulated by the Federal Employer's Liability Act; 70 that the In- dustrial Accident Board has no jurisdiction of a servant's claim for compensation under the Compensation Act for injury, where the servant was employed upon a car ferry in interstate commerce when the accident occurred ; 71 that a timekeeper of a gang of work- men repairing a track used in interstate commerce, who was killed while crossing the tracks on his way to telegraph a report to the roadmaster was engaged in interstate commerce at the time of the accident, although it occurred after the men had ceased work; 72 that employees engaged in constructing telegraph lines were not engaged in interstate commerce, although the company versely. Jackson v. Ind. Bd. of 111. See 117 N. E. 705. 1 W. C. L. J. 160. 68. Grand Trunk R. Co. v. Knapp. 147, C. C. A. 624, 233 Fed. 950. 69. 111. Cent. R. Co. v. Ind. Bd., 284 111. 267, 119 N. E. 920, 2 W. C. L. J. 444, N. Y. C. & H. R. R. Co., v. Carr 238 U.S. 260; Shanks v. Delaware L. A W. R., 239 U. S. 556, L. R. A. 1916C, 797; Westmans Case, 106 All. 532, 4 W. C. L. J. 213, (1910); Atchison T. & S. F. Ry. Co. v. Industrial Commission. 111. , 125 N. E. 380, 5 W. C. L. J. 364. 70. Lincks v. Erie R. Co. 91 N. J. Law 166, 103 Atl. 176, 1 W. C. L. J. 1096. 71. Thornton v. Grand Trunk-Milwaukee Car Ferry Co., 202 Mich. 609, 166 N. W. 833, 1 W. C. L. J. 1019. See also Miller v. Grand Trunk etc. R. Co., 201 Mich. 72, 166 N. W. 833; Carey v. Grand Trunk Western R. Co., 200 Mich. 12, 166 N. E. 492. 1 W. C. L. J. 820; Kennedy v. Coon, (N. J.). 106 Atl. 210, 4 W. C. L. J. 117. 72. Creachus v. Chicago, etc. R. Co., (Mo.), 205 S. W. 181, 2 W. C. L. J. 809. 207 46 WORKMEN'S COMPENSATION LAWS. employing them was so engaged. 73 But under the 1917 amendment to the Washington Act, c. 28, p. 96, section 19, an employee is not entitled to compensation for injuries received while engaged in painting bridges situated in the state on the line of a railroad engaged in interstate commerce, although working for an inde- pendent contractor. An employee is exempted from the Washing- ton Act when he is engaged in maintenance work upon railroads engaged in interstate or intrastate commerce. 74 An employee working as a lineman on an interstate railroad's anchor bridge, which spans its main line, is covered by the Federal Employer's Liability Act. 75 If the work in which an employee of a railroad, engaged ia both interstate and intrastate commerce, was injured was a part of interstate commerce he was not entitled to compensation under the Compensation Law. 76 It has been held that a flagman killed by an automobile while he was crossing the intersection of defendant's railroad track and a city street to get his lantern was engaged in interstate commerce, depriving the Workmen's Compensation Board of jurisdiction; 77 that a plumber employed in the maintenance of ways department of an interstate carrier, engaged in repairing pipes in a station, who was killed by a train while crossing tracks in the course ot' his employment was not entitled to compensation since he was 73. State v. Postal-Cable Co., 101 Wash. 630, 172 Pac. 902, 2 W. C. L. J. 400; Williams v. Schaff, Mo. , (1920), 222 S. W. 412, 6 W. C. L. J. 346. 74. Luby v. Indus. Ins. Comm. Wash. 191 Pac. 855. 75. Baker v. N. Y., N. H. & H. Ry. Co., App. Div. , 181 N. Y. Supp., 675, 6 W. C. L. J. 76. 76. Dickinson v. Ind. Bd., 280 111. 342, 117 N. E. 438, 1 W. C. L. J. 27; Southern Pac. R. Co, v. Indus. Comm., Cal. , 161 Pac. 1143, A 1 W. C. L. J. 213; Flynn v. N. Y. S. & W. R. Co., 101 Atl. 1034, B 1 W. C. L. J. 1164 J Di Donate v. Philadelphia & Ry. Co., Pa. , 109 Atl. 625, 5 W. C. L. J. 897. Flagging intrastate train on interstate railroad. 77. Walker v. Chicago, etc. R. Co., 64 Ind. App. , 117 N. B. 969, 1 W. C. L. J. 362; South. Pac. R. Co. v. Indus. Com., Cal. , 161 Pac. 1139, A 1 W. C. L. J. 204; S. P. R. Co. v. Indus. Comm., 161. Pac. 1142, A 1 W. C. L. J. 211; West v. Atl. Coast Line Ry. Co., N. C. 93 S. E. 479, B 1 W. C. L. J. 1452. 208 WHO COMES UNDER THE ACT. 46 engaged in interstate commerce; 78 that a servant in switch yards operating a motor to carry switchmen back and forth, and injured while hauling switchmen who had been looking after cars of coal moving within the state, but because they belonged to the company subject to reconsignment to points without the state, was not en- gaged in interstate commerce; 70 that where a switchman had just assisted in switching a string of 50 or 60 cars, some of which were loaded with interstate shipments, and was returning to his engine when he was struck and injured, was engaged in interstate commerce within the meaning of the Federal Employer's Liability Act; 80 that a towboat was engaged in interstate commerce so that an injured servant could not recover compensation under the Massachusetts Act; 81 that where decedent at the time he received Ms fatal injuries was employed in interstate commerce by a rail- road company on one of its boats which was being used for that purpose, the Federal Employer's Liability Act applies; 82 that a contract by which the employee was to act as second mate in a voyage from San Francisco to a point in Canada and return was a maritime contract relating to foreign commerce within the ex- clusive jurisdiction of the United States Courts, and the Industrial Commission had no jurisdiction; 83 that a laborer, fatally injured while cleaning soot from a boiler in a railroad's power plant. 78. Vollmers v. N. Y. Cent. R. Co., 180 App. Div. 160, 167 N. Y. S. 426, 1 W. C. L. J. 253. 79. 111. Cent. R. Co. v. Ind. Bd., 284 111. 267, 119 N. E. 920, 2 W. C. L. J. 445. 80. Erie R. Co. v. Downs (C. C. A.), 250, Fed. 415, 2 W. C. L. J. 599; Phil. & R. Ry. Co. v. Hancock, U. 8. , 40 Sup. Ct. R. 512, 6 W. C. L. J. 247; King v. Norfolk S. Ry. Co., N. C. , 97 S. E. 29, 3 W. C. L. J. 69; Gaddy v. N. Carolina R. Co., N. C. , 95 S. E. 925, 2 W. C. L. J. 112; Chicago & Erie R. Co. v. Feightner, Ind. App. , 114 N. E. 659, A 1 W. C. L. J. 476. Morrison v. Commercial Towboat- Co., 227 Mass. 237, 116 N. E. 499. 81. Geer v. St. Louis, S. F. * T. R. Co., Tex. , 194 S. W. 939, B 1 W. C. L. J. 1521. 82. The Erie Lighter (D. C.), 250 Fed. 490, 2 W. C. L. J. 606; Charlton v. Hilton Dodge Transport Co., 164 N. Y. S. 999, B 1 W. C. L. J. 1281. 83. Tallac Co. v. Pillsbury, 176 Cal. 236, 168 Pac. 17, 1 W. C. L. J. 7; Hinson v. Atl. ft C. Air Line Co., N. C. , 90 S. E. 772, B 1 W. C. L. J. 1445. 209 W. C. 14 46 WORKMEN *S COMPENSATION LAW generating electricity for operation of trains partly in New York and partly in New Jersey was engaged in interstate commerce, and the Industrial Commission had no jurisdiction to make an award ; 84 that the remedy of the widow of a railroad servant, killed in service, is not under the Federal Employer's Liability Act unless the particular work on which the employer was engaged at the very time of the accident was a part of the interstate com- merce in which the carrier was engaged. 85 In what is probably at this time the leading case on this subject the Supreme Court of the Unted States said: "The true test always is : Is the work in question a part of the interstate commerce in which the carrier is engaged?" In this case it was held that one carrying bolts to be used in repairing an interstate railroad and who was injured by an interstate train was entitled to invoke the Federal Employer's Liability Act. 86 An employee performing the duties of a janitor in a railroad machine shop, injured by a splinter while breaking kindling, was not engaged in interstate commerce, though engines engaged in interstate commerce were repaired at the shop. 87 An employee killed while washing the boiler of a locomotive, not assigned to any particular work or train was not engaged in interstate commerce. 88 A watchman guarding an interstate shipment was held to be engaged in interstate commerce. 89 One who repaired an engine regularly used in interstate com- merce was himself engaged in interstate commerce, 90 as was one 84. Guida v, Penn. R. Co., 183 App. Div. 822, 171 N. Y. S. 285, 2 W. C. L. J. 679. 85. Lincks v. Erie R., 91 N. J. Law 166, 103 Atl. 176. 1 W. C. L. 1096; Pedersen v. Del., L. & W. R. R. Co., 229 U. S. 146; Erie R. Co. v. Collins, 253 U. S. 77. 86. Mo. Pac. R. Co. et al. v. Mette, 261 Fed. 755, 5 W. C. L. 475. 87. Heed v. Ind. Comm. et al., 287 111. 505, 122 N. E. 801, 4 W. C. L. J. 27. 88. Chicago R. I. & P. Ry. Co. v. Ind. Comm., 288 111. 126, 123 N. E. 278, 4 W. G. L. J. 159; Reynolds v. Philadelphia & R. Ry. Co., Pa. , 109 Atl. 660, 5 W. C. L. J. 900. 89. O'Brien v. Penn. R. Co., 187 N. Y. App. Div. 839, 176 N. Y. S. 390, 4 W. C. L. J. 290. 90. Atlantic Coast Line R. Co. v. Woods, 252 Fed. 428, 3 W. C. L. J. 6. 210 WHO COMES UNDER THE ACT. 46 engaged in repairing a railroad track used in interstate com- merce. 91 One killed while engaged in making repairs upon cars on siding, some of which were interstate cars was engaged in interstate com- merce. 92 Where a freight terminal was in process of construction, one engaged in wheeling brick from a car on a siding to the terminal was not engaged in interstate commerce. 93 Where claimant alleges that he suffered an injury while carry- ing drawbars from one pile to another pile in the yards, and the de- fendant admits this allegation by his answer, a finding that claim- ant was injured while loading drawbars on a car for interstate shipment, is against the evidence in the case, since under the pleadings no such evidence was admissable. 94 The Washington Compensation Act (Sec. 18) as amended in 1917 places all employees of railroads outside of the act and gives those engaged in intrastate commerce the same right of recovery as they would have under the Federal Employers Liability Act were they engaged in interstate commerce. 98 Where the employment is too remote to be considered as a part of or in furtherance of interstate commerce the compensation act applies unconditionally. 9 " One engaged in cutting weeds along a railroad right of way was held not to be engaged in interstate commerce and that the State Act covered the employment, there being evidence that the weeds were being cut merely to comply with the railroad law. 07 91. Kalashian v. Hines, etc., Wis. , 177 N. W. 602, 6 W. C. L. J. 240. 92. Southern Pac. Co. v. Indus. Ace. Comm., 179 Cal. 69, 175 Pac. 453, 3 W. C. L. J. 12. 93. Matti v. Chicago, M. A St. P. Ry. Co., 55 Mont. 280, 176 Pac. 154, 3 W. C. L. J. 163. 94. Savich v. Hines, Wte. , 1921, 182 N. W. 924. 95. Spokane & I. E. Ry., et al. v. Wilson, et al., 104 Wash. 171, 176 Pac. 34, 3 W. C. L. J. 201. 96. Suttle v. Hope Natural Gas Co., 82 W. Va. 729, 97 S. E. 429, 3 W. C. L. J. 205. 97. Plass T. Central New England R. R. Co.. 226 N. Y. 449, 123 N. E. 852, 4 W. C. L. J. 527, Dissenting opinion based on authority of N. Y. C. * H. R. R. R. Co. v. Porter, 249 U. S. 168, 39 Sup. Ct. 188, 63 L. Ed. 536. 211 46 WORKMEN'S COMPENSATION LAWS. That a laborer engaged in work about a train shed, picking up waste paper, etc., whose clothing caught fire while cleaning switch lamps was not employed in interstate commerce. 98 That a millwright who was injured while ripping a piece of timber that was to be used in the repair of a caboose was not engaged in interstate commerce, it not being shown that the timber was ever used or that the caboose was removed from service for repairs at the time the injury was sustained." That employees of a railroad shop engaged in shifting a car of lumber about the shop preparatory to unloading it were not engaged in interstate commerce, though the lumber was eventually to be used in repair of interstate cars. 1 A general handy man around locomotives engaged in interstate commerce, providing coal, water, and attending to the moving thereof, is engaged in interstate commerce. 2 It has been held that interstate commerce ceases upon the ship- ment reaching its destination, therefore a switchman injured while switching cars the day after they had reached their destina- tion was not engaged in interstate commerce. 3 Where an employee, belonging to a local switching crew, was injured while setting a brake on a car on a siding after it had come from Pennsylvania consigned to a point in New Jersey was not engaged in interstate commerce. 4 One engaged in instructing motormen in how to operate motors in interstate business was employed in interstate commerce. 6 98. Gingliano v. Lehigh Valley R. R. Co., 224 N. Y. 713, 129 N. E. 869; Killes v. G. N. Ry. Co., Wash. , 171 Pac. 69. 99. Fish v. Ruthland R. Co., 189 App. Div. 352, 178 N. Y. S. 439, 5 W. C. L. J. 98. 1. Barnett v. Coal & Coke Ry. Co., 81 W. Va. 251, 94 S. E. 150, 1 W. C. L. J. 280; Mo. K. & T. Ry. Co. v. Watson, Tex. Civ. App. , 195 S. W. 1177, B 1 W. C. L. J., 1581. 2. Guy v. Cincinnati N. R. Co., Mich. , 164 N. W. 454, A 1 W. C. L. J. 924. 3. Louisville & N. R. Co. v. Meadors' Adm'r, Ky. App. , 197 S. W. 440, A 1 W. C. L. J. 692. 4. Delaware, L. & W. R. Co. v. Peck, 255 Fed. 261, 3 W. C. L. J. 559. 5. Dumphy v. Norfolk & Western Ry., W Va. 95 S. E. 863, 2 W. C. L. J. 180. 212 WHO COMES UNDER THE ACT. 46 A street railway engaged in carrying passengers between states, is a common carrier by railroad within the meaning of the Federal Employers' Liability Act. 6 A car repairer employed by an interstate . carrier was not engaged in interstate commerce while repairing a car belonging to another interstate carrier and which was to be returned to interstate commerce. 7 Where the record fails to show whether the claimant was struck by an interstate or intrastate train, the Supreme Court will as- sume that it was an intrastate train. 8 Employees appointed by the Federal government and under its control although temporarily engaged in work pertaining to and within a state, and though paid in part by the state are under the Federal Workmen's Compensation Act. 9 An accident to an employee engaged on an interstate train and not engaged in interstate commerce is compensable under the State Act. 10 It was at first quite generally held that the admiralty law not being exclusive as to cases within its jurisdiction it did not affect the jurisdiction of the State Compensation Acts over admiralty cases. "Congress having in no way legislated in the premises, at least so far as interstate commerce by water is concerned, the State has th right to enact laws incidentally affecting interstate com- merce." 11 It was held that the injured employee must, however, elect whether he would proceed in admiralty or under the state compensation act. "A party cannot enforce both remedies and will be required to elect whether to pursue his common law remedy or proceed in admiralty. The Workmen's Compensation Act while 6. Nelson v. Ironwood & B. Ry. ft Light Company, Mich. , 170 N. W. 45, 3 W. C. L. J. 327. I, Central R. Co. of N. J. v. Paslick, 239 Fed. 713, A 1 W. C. L. J. 55. 8. Payne v. Indus. Comm. 111. , (1921), 129 N. E. 830. 9. In re Harrold R. Smalley, 2nd A. R. U. 8. C. C. 63; In re Hamer Bobo, 2nd A. R. U. S. C. C. 64; In re G. W. Constable, 2nd A. R. U. S. C C. 65. But see Midwest Bank v. Davis, Mo. , 233 S. W. 406. 10. Zimmerman v. New York Cent. R. Co., 180 App. Div. 98, 167 N. 1. S. 501, 1 W. C. L. J. 233. II. Stoll v. Pac. Steamship Co., 205 Fed. 169; L. R. A. 1916A (note) 461-465; 10 N. C. C. A. (note) 688-699. 213 46 WORKMEN'S COMPENSATION LAW it took away the common-law action, provided in its stead another remedy. If the libelant determined to obtain relief from the substitute which is provided for his common-law remedy, and received compensation under such act, then he can not proceed in admiralty and thus obtain double compensation for the injury of which he complains. " 12 But see to the contrary Liverani v. John T. Clark & Son, 176 N. Y. Supp. 725, 4 W. C. L. J. 545. It was held in a Washington case that since Art. 4283 of the Federal Statutes limited the liability of the owners of a vessel, the state legislature had not the power to fix another standard or measure by means of the State Workmen's Compensation Act. This was in the case of an injury suffered by an employee on a vessel operating upon Puget Sound, and engaged in intrastate commerce. 13 The contrary was held in a New York case where a workman was injured while working upon a navigable river; but this decision was later reversed by the United States Supreme Court. 14 The preceeding paragraph is now chiefly historical in so far as it pertains to election in admiralty or under the compensation act. The decision of the Supreme Court in the case of Southern Pac. Co. v. Jensen, 224 U. S. 205, declared the New York Work- men 's Compensation Act to be unconstitutional where it was sought to apply it to longshoremen engaged in loading or unloading vessels engaged in interstate commerce, declaring such rights and liabili- ties to be within the jurisdiction of admiralty. Subsequent to this decision congress enacted the amendment of October 6, 1917, to 12. Fred. E. Sander, 212 Fed. 545, 5 N. C. C. A. 97; Dziengelewsky v. Turner & Blanchard, Inc., 176 N. Y. S. 729, 4 W. C. L. J. 445; Riegel v. Higgins, (Wash.), 241 Fed. 718, A 1 W. C. L. J. 80. 13.' State of Washington, ex rel. Frank Jarvis, v. Daggett et al., 151 Pac. 648, L. R. A. 1916A, 446; Barrett v. MaComber & Nickerson Co., (R. L), 253 Fed. 205, 3 W. C. L. J. 89; Shaughnessy v. Northland S. S. Co., Wash. , (1917), 162 Pac. 546, B 1 W. C. L. J. 1602. 14. Re Walker, 215 N. Y. 529, 109 N. E. 604, Reversed by Clyde Steam- ship Co. v. Walker, 244 U. S. 255, 37 Sup. Ct. 545, 61 L. Ed. 1116, See, also, Southern Pac. Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, Ann. Cas. 1917E, 900. Holding New York Compensation Act invalid as applying to ocean going steamships being in conflict with the constitution. 214 WHO COMES UNDER THE ACT. 46 the Federal Judicial Code (Act Cong. March 3, 1911, c. 231, Sec. 24, cl. 2 and section 256, cl. 3, 36 Stat. 1001, 1160, as amended by Act. Cong. Oct. 6, 1917, c. 97, 40 Stat. 395) saving to claimants, subject to admiralty jurisdiction, the rights and remedies under the Workmen's Compensation Act of any state, which settled the controversy theretofore existing in that regard in admiralty cases, until as hereinafter mentioned the Supreme Court of the United States held this amendment to be unconstitutional. It was held in a New Jersey case that this amendment did not validate a compensation action begun in a state court before its passage and which at the time of such passage the state court had no jurisdiction to entertain. 15 Prior to the enactment of the amendment of Oct. 6, 1917, by Congress the terms of some of the compensation acts were broad enough to include employees engaged in discharging or loading cargoes upon vessels engaged in interstate commerce, but did not actually include them because of the conflict with the existing Federal Law. So the employee injured while so engaged had bis remedy in Admiralty or under the common law. 18 After the enactment by Congress of the above mentioned amend- ments the New York Court of Appeals upheld the constitutionali- ty of the provision of the New York Act as it applies to those engaged in maritime pursuits. 17 But on May 17, 1920, the Supreme Court of the United States had before it for consideration the aforementioned amendment or Act of Oct. 6, 1917, amending the Judicial Code, Sections 24, and 256, (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sections 991 (3), and (1233), relative to the jurisdiction of federal courts, so as to save to suitors in all cases the right of a common law remedy, etc., "and to claimants the rights and remedies under the Work- 15. Coon v. Kennedy 91 N. J. Law 598. 103 Atl. 207. 1 W. C. L. J. 1101; Peters v. Veaaey, 40 S C. 65, 5 W. C. L. J. 127; Hartman v. Toyo Kisen Kaisha S. S. Co., 247 Fed. 516. A 1 W. C. L. J. 85. 16. Duart v. Simmons, 231 Maes. 313, 121 N. E. 10; 3 W. C. L. J. 136; Sullivan v. Hudson Nav. Co., 182 N. Y. App. Div. 512, 169 N. Y. S. 645, 1 W. C. L. J. 1105.^ 17. Stewart v. Knickerbocker Ice Co., 229 N. Y. 302, 123 N. E. 382, 4 W. C. L. J. 271. 215 46 WORKMEN'S COMPENSATION LAWS. men's Compensation Law of any state," which amendment seeks to authorize and sanction actions by the states in prescribing and enforcing rights, obligations, liabilities and remedies designed to provide compensation under the Compensation Acts of the several states for injuries to employees engaged in maritime work, and as so construed, the court held it to be beyond the power of Congress, on the ground that its power to legislate concerning rights and liabilities within the maritime jurisdiction and remedies for their enforcement cannot be delegated to the states, especially as it would destroy the uniformity contemplated by the Constitu- tion. The court said: "While employed by Knickerbocker Ice Company as a bargeman and doing work of a maritime nature, William M. Stewart fell into the Hudson river and drowned August 3, 1918. His widow, defendant in error, claimed under the Workmen's Compensation Law of New York (Consol. Laws c. 67) ; the Industrial commission granted an award against the company for her and the minor children; and both Appellate Division and the Court of Appeals approved it. Stewart v. Knick- erbocker Ice Co., 226 N. Y. 302, 123 N. E. 382. The latter con- cluded that the reasons which constrained us to hold the Com- pensation Law inapplicable to an employee engaged in maritime work Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Gas. 1917E, 900, had been extinguished by "An act to amend Sections twenty- four, and two hundred fifty-six of the Judicial Code, relating to the jurisdiction of the District Courts, so as to save to claimants the rights and remedies under the Workmen's Compensation Law of any State" approved October, 6, 1917. 40 Stat. c. 97 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sections 991 (3), 1233). "The provision of Section 9, Judiciary Act, 1789, (1 Stat. 76, c. 20) granting to the United States District courts 'exclusive original cognizance of all civil causes of admiralty and mari- time jurisdiction, * * * saving to suitors, in all cases the right of a common law remedy, where the common law is competent to give it,' was carried into the Revised Statutes (sees. 563 and 711, Comp. St. Sec. 1233) and thence into the Judicial Code (clause 3, sees. 24 and 256, Comp. St. sec. 991 (3), 1233.) The saving clause remained unchanged until the 216 WHO COMES UNDER THE ACT. 46 statute of October 6, 1917, added "and to claimants the rights and remedies under the Workmen's Compensation Law of auy State." In Southern Pacific Co. v. Jensen (May, 1917), 244 U. S. 205, 37 Sup. Ct. 524, 61 L Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 191 7E, 900, we declared that under Section 2, Article III, of the Constitution ('The Judicial Power shall extend to * * * all cases of admiralty and maritime jurisdiction') and Section 8, Article I ( Congress may make necessary and proper laws for carrying out granted powers), in the absence of some controlling statute the general maritime law as ac- cepted by the Federal Court, constitutes part of our national law applicable to the matters within admiralty and maritime jurisdiction, also that 'Congress has paramount power to fix and determine the maritime law which shall prevail throughout the country.' And we held that, when applied to maritime injuries, the New York Workmen's Compensation Law conflicts with the rules adopted by the Constitution and to that extent is invalid. The necessary consequence would !; destruction of the very uniformity in respect of maritime matters which the Constitution was designed to establish; and freedom of navigation between the States and with foreign countries would 1 e seriously hampered and impeded. "We also pointed out that the saving clause taken from the original Judiciary Act had no application, since, at most, it only specified common law remedies, whereas the remedy pre- scribed by the compensation law was unkown to the common law and incapable of enforcement by the ordinary processes of any court. Moreover, if applied to maritime affairs, the statute would obstruct the policy of Congress to encourage investments in ships. "In Chelentis v. Luckenbach S. S. Co., (June, 1918), 247 U. S. 372, 38 Sup. Ct. 501, 62 L. Ed. 1171, an action at law seeking full indemnity for injuries received by a sailor while on ship- board, we said: 'Under the doctrine approved in Southern Pacific Co. v. Jensen, no State has power to abolish the well recognized maritime rule concerning measure of recovery and substitute therefor the full indemnity rule of the common law. Such n 217 46 WORKMEN'S COMPENSATION LAW substitution would distinctly and definitely, change or add to the settled maritime law; and it would be destructive of ike uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the States with each other or with foreign states.' And, concerning the clause, 'saving to suitors' in all cases the right of a common law remedy where the common law is competent to give it,' this: "In Southern Pacific Co. v. Jensen, we definitely ruled that it gave no authority to the several States to enact legislation which would work 'material prejudice to the characteristic features of the general maritime law or interfere with the proper harmony and uniformity of that law in its international and interstate relations.' Under the saving clause a right sanctioned by the maritime law may be enforced through any appropriate remedy recognized at common law but we find nothing therein which reveals an intention to give .the complaining party an election to determine whether the defendant's liability shall be measured by common law standards rather than those of the maritime law. "Thus we distinctly approved the view that the original sav- ing clause conferred no substantive rights and did not authorize the States so to do. It referred only to remedies and to the ex- tent specified permitted continued inforcement by the state courts of rights and obligations founded on maritime law. "In Union Fish Co. v. Erickson, 248 U. S. 308, 39 Sup. Ct. 112, 63 L. Ed. 261, an admiralty cause, a master sought to re- cover damages for breach of an oral contract with the owner of a vessel for services to be performed principally upon the sea. The latter claimed invalidity of the contract under a statute of California, where made, because not in writing and not to be performed within a year. We ruled: 'The Circuit Court of Appeals correctly held that this contract was maritime in its nature and an action in admiralty thereon for its breach could not be defeated by the statute of California relied upon by the petitioner. In entering into this contract the par- ties contemplated no services in California. They were making an engagement for the services of the master of the vessel, the duties/ 218 WHO COMES UNDER THE ACT. 46 to be performed in the waters of Alaska, mainly upon the sea. The maritime law controlled in this respect, and wag not subject to li'n- itation because the particular engagement happened to be made in California. The parties must be presumed to have had in contem- plation the system of maritime law under which it was made. See also The Blackheath, 195 U. S. 361, 365. 25 Sup. Ct. 46, 47, 49 L. Ed. 236.' "As the plain result of these recent opinions and the earlier cases upon which they are based, we accept the following doc- trine: The Constitution itself adopted and established, as part of the laws of the United States, approved rules of the general maritime law and empowered Congress to legislate in respect of them and other matters within the admiralty and maritime juris- diction. Moreover, it took from the States all power, by legisla- tion or judicial decision, to contravene the essential purpose of, or to work material injury to, characteristic features of such law or to interfere with its proper harmony and uniformity in its in- ternational and interstate relations. To preserve adequate har- mony and appropriate uniform rules relating to maritime matters and bring them within control of the Federal Government was the fundamental purpose; and to such definite end Congress was empowered to legislate within that sphere. "Since the beginning. Federal courts have recognized and ap- plied the rules and principles of maritime law as something dis- tinct from laws of the several States not derived from or de- pendent on their will. The foundation of the right to do this, the purpose for which it was granted, and the nature of the sys- tem so administered, were distinctly pointed out long ago. "That we have a maritime law of our own, operative through- out the United States, cannot be doubted. * * * One thing, how- ever, is unquestionable ; the Constitution must have referred to a system of law coextensive with, and operating uniformly in, the whole country. It certainly could not have been the intention to place the rules and limits of maritime law under the disposal and regulation of the several States, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse 219 46 WORKMEN'S COMPENSATION LAWS. of the States with each other or with foreign states. The Lotta- wamia, 21 Wall. 558, 574, 575 (22 L. Ed. 654). "The field was not left unoccupied; the Constitution itself adopted the rules concerning rights and liabilities applicable therein; and certainly these are not less paramount than they would have been if enacted by Congress. Unless this be true it is quite impossible to account for a multitude of adjudications by the admiralty courts. See Workman v. New York City, 179 U. S. 552, 557, et seq. ; 21 Sup. Ct. 212, 45 L. Ed. 314. "The distinction between the indicated situation created by the Constitution relative to maritime affairs and the one resulting from the mere grant of power to regulate commerce without more, should not be forgotten. Also it should be noted that Federal laws are constantly applied in State courts; unless in- hibited, their duty so requires. Constitution, Art. VI, Clause 2; Second Employer's Liability Cases, 223 U. S. 55, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44. Consequently mere reser- vation of partially concurrent cognizance to such courts by an act of Congress conferring an otherwise exclusive jurisdiction upon national courts, could not create substantive rights or obligations or indicate assent to their creation by the States. "When considered with former decisions of this court, a satis- factory interpretation of the Act of October 6, 1917, is difficult, perhaps impossible. The Howell (D. C.) 275 Fed. 578, and Rohde v. Grant Smith Porter Co. (D. C.) 259 Fed. 304, illustrate some of the uncertainties. In the first, the District Court in New York dismissed a libel, holding that rights and remedies prescribed by the Compensation Law of that State are exclusive and pro tanto supersede, the maritime law. In the second, the District Court of Oregon ruled that when an employee seeks redress for a mari- time tort by an admiralty court, rights obligations and liabilities of the respective parties must be measured by the maritime law and these cannot be barred, enlarged or taken away by state legislation. Other difficulties hang upon the unexplained words 'workmen's compensation law of any State.' "Moreover, the Act only undertook to add certain specified rights and remedies to a saving clause within a code^section con- ferring jurisdiction. We have held that before the amendment 220 WHO COMES UNDER THE ACT. 46 and irrespective of that section, such rights and remedies did not apply to maritime torts because they were inconsistent with paramount Federal law within that field they had no existence. Were the added words therefore wholly ineffective? The usual function of a saving clause is to preserve something from im- mediate interference not to create; and the rule is that expres- sion by the legislature of an erroneous opinion concerning the law does not alter it. Endlich, Interpretation of Statutes, Sec. 372. "Neither branch of Congress devoted much debate to the Act under consideration altogether, less than two pages of the Rec- ord (65 Cong. pp. 7605, 7843). * * * Having regard lo all these things we conclude that Congress undertook to permit applica- tion of Workmen's Compensation Laws of the several States to injuries within the admiralty and maritime jurisdiction; and to save such statutes from the objections pointed out by Southern Pacific Co. v. Jensen. It sought to authorize and sanction action by the States in prescribing and enforcing, as to all parties cora- cerned, rights, obligations, liabilities and remedies designed to provide compensation for injuries suffered by employees engaged in maritime work. "And so construed, we think the enactment is beyond the power of Congress. Its power to legislate concerning rights and liabil- ities within the maritime jurisdiction and remedies for their en- forcement, arises from the Constitution, as above indicated. The definite object of the grant was to commit direct control to the Federal Government; to relieve maritime commerce from un- necessary burdens and disadvantages incident to discordant legislation ; and to establish, so far as practicable, harmonious and uniform rules applicable throughout every part of the Union. "Considering the fundamental purpose in view and the definite end for which such rules were accepted, we must conclude that in their characteristic features and essential international and interstate relations, the latter may not be repealed, amended or changed except by legislation which embodies both the will *nd deliberate judgment of Congress. The subject was intrusted tn it to be dealt with according to its discretion not for delegation to others. To say that because Congress could have enacted a 221 46 WORKMEN'S COMPENSATION LAW compensation act applicable to maritime injuries, it could author- ize the States to do so as they might desire, is false reasoning. Moreover, such an authorization would inevitably destroy the harmony and uniformity which the Constitution not only con- templated but actually established it would defeat the very pur- pose of the grant. See Sudden & Christenson Industrial Accident Commission, (Cal.) 188 Pac. 803. "Congress cannot transfer its legislative power to the States by nature this is non-delegable. In re Rahrer, 140 U. S. 545, 560; 11 Sup. Ct. 865, 35 L. Ed. 572; Field v. Clark, 143 U. S. 649, 692; 12 Sup. Ct. 495, 36 L. Ed. 294; Buttfield v. Stranahan, 192 U. S. 470, 496, 24 Sup. Ct. 349, 48 L. Ed. 525 ; Butte City Water Co. v. Baker, 196 U. S. 119, 126, 25 Sup. Ct. 211, 49 D, Ed. 409; Interstate Com. Comm. v. Goodrich, Transit Co., 224 U. S. 194, 214 ; 32 Sup. Ct. 436, 56 L. Ed. 729. "In Clark Distilling Co. v. Western Md. Ry. Co., 242 U. S. 311, 37 Sup. Ct. 180, 61 L. Ed. 326, L. R, A. 1917B, 1218, Ann. Caa. 1917B, 845, notwithstanding the contention that it violated the Constitution Art. I, Sec. 8, Clause 3 this court sustained an act of Congress which prohibited the shipment of intoxicating liquors from one State into another when intended for use con- trary to the latter 's laws. Among other things, it was there stated that 'The argument as to delegation to the States rests upon a mere misconception. It is true the regulation which the Webb-Kenyon Act contains permits state prohititions to apply to movements of liquor from one state into another, but the will which causes the prohibitions to be applicable is that of Congress,' i. e., Congress itself forbade shipments of a designated character. And further: 'The exceptional nature of the subject here regulated it the basis upon which the exceptional power exerted must rest,' i. e., different considerations would apply to innocuous articles of commerce. "The reasoning of that opinion proceeded upon the postulate that because of the peculiar nature of intoxicants which gives enlarged power cpncerning them, Congress might go so far as 222 WHO COMES UNDER THE ACT. 46 entirely to prohibit their transportation in interstate commerce. The state did less. "We can see no reason for saying that although Congress in view of the nature and character of intoxicants had a power to forbid their movement in interstate commerce, it had not the authority to so deal with the subject as to establish a regulation (Which is what was done by the Webb-Kenyon Law) making it impossible for one state to violate the prohibitions of the laws of another through the channels of interstate commerce. Indeed, we can see no escape from the conclusion that if we accept the propo- sition urged, we would be obliged to announce the contradiction in terms that because Congress had exerted a regulation lesser in power than it was authorized to exert, therefore its action was void for excess of power. See Delameter v. South Dakota, 205 U. S. 93, 97, 27 Sup. Ct. 447, 51 L. Ed. 724, 10 Ann. Gas. 753. "Here we are concerned with a wholly different Constitutional provision one which for the purpose of securing harmony and uniformity, prescribes a set of rules, employs Congress to legis- late to that end, and prohibits material interference by the States. Obviously, if every State may freely declare the rights and lia- bilities incident to maritime employment, there will at once arise the confusion and uncertainty which framers of the Constitution both foresaw and undertook to prevent. "In the Hamilton, 207 U. S. 398, 28 Sup. Ct. 133, 52 L. Ed. 264, an admiralty proceeding, effect was given, as against a ship registered in Delaware, to a statute of that State which permitted recovery by an ordinary action for fatal injuries, and the power of a State to supplement the maritime law to that extent was recognized. But here the state enactment prescribes exclusive rights and liabilities, undertakes to secure their observance by heavy penalties and onerous conditions, and provides novel remedies incapable of enforcement by an admiralty court. See N. Y. Cent. R. R. Co. v. White, 243 U. S. 188, 37 Sup. Ct. 247 S 61 L. Ed. 667, L. R. A. 1917D, L M Ann. Cas. 1917D, 629 N. Y. Cent. R. R. v. Winfield, 244 U. S. 147, 37 Sup. Ct. 546, 61 L. Ed. 1045, L. R. A. 1918C, 439, Ann. Cas. 1917D, 1139; Southern 223 47 WORKMEN'S COMPENSATION LAWS. . Pacific Co. v. Jensen, supra. The doctrine of The Hamilton may not be extended to such a situation. "The judgment of the court below must be reversed and the cause remanded with directions to take further proceedings not inconsistent with this opinion. ' ' 18 Whether a tort is exclusively maritime in nature is to be deter- mined by the locality of the act, and the fact that one is injured in the performance of a maritime contract does not in itself determine the character of the tort. So where a person was knocked from a wharf by the movement of a pile of lumber and struck upon logs and timbers in the river and there was no at- tempt to show that his death was the immediate result of being struck by the lumber on the wharf, it could not be said as a mat- ter of law that the tort was maritime so as to prevent recov- ery under the Employers' Liability Act or Workmen's Compensa- tion Act of California. 19 47. Extra Territorial Application of Acts. Many of the American Acts expressly or impliedly provide that they Bhall apply to injuries received outside the state if the contract of employment was made in the state. Others omit all reference to extra territorial application, and still others expressly provide that the act shall not apply to injuries received outside the state. A substantial difficulty presents itself as to those acts whicli expressly state that "this act shall apply to all injuries received in this state, regardless of where the contract of employment was made, and also to all injuries received outside of this state under contracts of employment made in this state, unless the contract of employment in any such case shall otherwise provide." It will be noticed that such provisions deny jurisdiction to the acts of other states over injuries received in "this state" if the contract of employment was made in some other state, but give 18. Knickerbocker Ice Co. v. Stewart, 252 U. S. , 40 Sup. Ct. R. 438, 6 W. C. L. J. 119; Berg v. Philadelphia & R. Ry. Co., 266 Fd. 591, 6 W. C. L. J. 621; Lund v. ^rifflth & Sprague, Wash. , 183 Pac. 123, 4 W. C. L. J. 654; Lawson v. N. Y. & P. R. S. S. Co., La. , 86 So. 815 (1921); Dorman's Case, Mass. , 129 N. E. 352, (1921). 19. Rorvik v. N. Pac. Lbr. Co. (1921), Ore. , 195 Pac. 163. 224 WHO COMES UNDER THE ACT. 47 themselves jurisdiction in similar* cases. The question therefore arises as to which law applies where a contract of employment is made in a state whose act contains the above provisions but the injury occurs in another state whose act has a similar pro- vision. It would appear, therefore, in the case of an employee injured in Missouri, in the performance of a contract made in Indiana, that he would have the right at his option to proceed against his em- ployer either under the Missouri Act, or the Indiana Act, or per- haps even under both, a:; in reply to the contention that to give an Act extra territorial operation might permit a double recov- ery, the New Jersey Court said : ' ' Recovery of Compensation in two states is no more illegal, and is not necessarily more unjust, than recovery upon two policies of accident or life insurance." 20 To thus allow double recovery, is in the author's opinion bad policy and contrary to one of the fundamental principles of Workmen's Compensation, in that if the employee were to re- ceive more compensation while disabled than while working the temptation to malinger and prolong his period of disability would be great. In addition this would be penalizing the employer for his industry in extending his business to other states. Not to mention questions of interstate comity and res adjudicata. The author prefers in such cases as a matter of comity, the theory of concurrent jurisdiction. While elective acts are by most American authorities consider ed contractual, in that they become part of the contract of em- ployment and are held to follow the employee to the place of per- formance of the contract, " regardless of express language to 20. Rounsaville v. Central R. Co., 87 N. J. Law, 371, 94, Atl. 392. 22. Gooding v. Ott, 77 W. Va. 487, 87 S. E. 862; State v. District Court, 139 Minn. 305, 168 N. W. 177, 2 W. C. L. J. 524; Hagenbach T. Leppert, 64 Ind. App. , 177 N. E. 531. 1 W. C. L. J. 64;Shanahan v. Monarch Engineering Co., 219 N. Y. 469. 114, N. E. 795; Jenkins v. Hogan & Sons, 177 App. Div. 36, 163 N. Y. S. 707; Industrial Comm. v. Aetna Life Ins. Co., 64 Colo. 480, 174 Pac. 589, 2 W. C. L. J. 759; Grim- mell v. Wilkinson, 39 R. I. 447, 98 Atl. 103; Pierce v. Bekins Van & 225 W. C.~ 15 47 WORKMEN'S COMPENSATION LAWS. that effect in the act, yet the right to compensation rests primar- ily, according to some authorities, on the statute, 23 rather than on the contract of employment. So the New Jersey Act has been held to apply where the contract of employment was made in another state though it required services to be performed in New Jersey where the employee was injured, the court raying: "The Workman's Compensation Act indicates a public policy of the state, which will be enforced even as against a contract made in another sftate." 24 It also appears logical that since the compensation acts are considered an exercise of the police power of the states, that the compensation act, if any, of the state where the accident occurred, should apply rather than the place of the making of the employment contract. 25 On these theories, as well as under the express language of the Act, the employee injured in Missouri, though having contracted for his employment in Indiana, would have the right to obtain compen- sation under the Missouri Compensation Act. (See Douthwright v. Chaplin, 91 Conn. 524, 100 Atl. 97 Ann. Gas. 1917E 512). But the questions that then confront him are, can he obtain service on his employer in Missouri, can he sue his employer for damages at common law because the employer may not have insured his risk under the Missouri Act, or may he go back to Indiana, obtain service on his employer and enforce the Missouri Act before some Indiana Tribunal, or must he in Indiana under these facts, proceed under the Indiana Act? Unfortunately these and many related questions will have to be left for the most part to future determination by the courts and legislative amendments to existing Statutes, as the decisions Storage Co., -- la. , 172 N. W. 191, 4 W. C. L. J. 78; Anderson v. Miller Scrap Iron Co. et al., 169 Wis. 106, 170 N. W. 275, 3 W. C. L. J. 389. 23. North Alaska Salmon Co. v. Pillsbury, 174 Cal. 1, 162 Pac. 93. 24. American Radiator Co. v. Rogge, 86 N. J. Law, 436, 92 Atl. 85, Affirmed in 87 N. J. Law, 314, 93 Atl. 1083; Davidheiser v. Hay Foundry & Iron Works, 87 N. J. Law 688, 94 Atl. 309; West Jersey Trust Co., v. Philadelphia & R. Ry. Co., 88 N. J. Law, 102, 95 Atl. 753. 25. Perlis v. Lederer, 180 App. Div. 429, 178 N. Y. S. 449, 5 W. C. L,! J. 108; Union Bridge & Const. To. v. Industrial Comm., 287 111. 396, 122 N. E. 609, 3 W. C. L. J 690. 226 WHO COMES UNDER THE ACT. 47 to date concern themselves principally with the question of whether or not the legislature of any State intended the compensation act of that State to have extraterritorial effect, 26 and the results of the affirmative or negative determination of that question. Under the decisions it is conceded that the State has power to pass an act that will apply to injuries suffered by an employee in another state. 27 Under such provision of the California Act it was held that the term "resident" applies only to citizens or to aliens domiciled within the state. 28 Though when the question was first raised in America, our courts and commissions were inclined to follow the decisions of the British Courts to the effect that, except as to seamen for whom express provision is made, the English Act applies only within the territorial limits of the United Kingdom. 20 Where a contract was entered into in New York for services to be performed wholly in Pennsylvania, the court said; "There is no doubt that a contract made within the state of New York for services to be performed wholly in a sister state is without the police power of the state of New York and does not give a 26. Gould v. Sturdevant (In re American Mut. L. Ins. Co.), 215 Mass. 480, 102 N. E., 693 4 N. C. C. A. 60; Kennerson v. Thames Towboat Co., 89 Conn. 367, L. R. A. (1916), A. 436. 94 All. 372; Matter of Post v. Burg- er & Gohlke. 216 N. Y. 544, 111 N. E. 351, 10 N. C. C. A. 888; American Radiator Co. v. Rogge, 86 I*. J. Law 436; 92 Atl. 85, 7 N. C. C. A. 144; Bradbury's Annotation 9 N. C. C. A. 919. 27. Gould v. Sturdevant (In re American Mutual Liability Ins. Co.), 215 Mass. 480; 102 N. E. 693; 4 N. C. C. A. 60; Mulhall v. Fallen, 176 Mass. 266, 57 N. E. 386: North Alaska Salmon Co. v. Pillsbury, 174 Cal. 1, 162 Pac. 93; Pierce v. Bekins Van & Storage Co. (la.), 172 N. W. 191, 4 W. C. L. J. 78; Gooding v. Ott, 77 W. Va. 487, 87, S. E. 862; Post v. Burger & Golke, 216 N. Y. 544, 111 N. E. 351, Ann. Cas. 1916B 158; Foughty v. Ott, 80 W. Va. 88, 92 S. E. 143, 15 N. C. C. A. 919; Jenkins v. T. Hogans & Sons, Inc., 177 N. Y. App. Div. 36, 163 N. Y. S. 707; Deeny v. Wright & Cobb Co., 36 N. J. L. J. 121; Foley v. Home Rubber Co., 89 N. J. L. 474, 99, Atl. 624, 13 N. C. C. A. 1014. 28. Quong Ham Wah Co. v. Indus. Comm., Cal. , 192 Pac. 1021. 7 W. C. L. J. 12. 29. Tomalin v. Pearson & Son (1909) 2 B. W. C. C. 1, 100 L. T. N. S. 685; Schwartz India Rubber etc. Co., 5 B. W. C. C. 390, 106 L. T. N. S. 706; Hicks v. Maxton. 1 B. W. C. C. 150. 227 47 WORKMEN'S COMPENSATION LAW right to compensation under our Workmen's Compensation Law. (Consol. Laws. c. 67. )" 30 An employee injured in Idaho while engaged in extrahazard- ous work and who brought his action in Washington, would bVMENT. 50 to the claimant's employment as a foreman to entitle him to compensation for injuries sustained there. 82 Under the same or a similiar state of facts as existed in the Lanigan case supra the court reversed an award in favor of a superintendent of highways for a town on the theory that he was an officer and iiot an employee. 83 Taking in danger signal lanterns is not incidental to bridge repairing. 8 * 50. Diversified Employment. A chauffeur, who was em- ployed to drive his employer's pleasure car, and also a motor truck in delivering merchandise for the employer's department store, and who was injured while repairing the pleasure car, which was also used at times in connection with the department store, was not engaged in a hazardous employment, so as to bring him within the New York Act. "The employment of de- ceased was doubtless of a two-fold nature; he rendered certain services in connection with his employer's business; he also rendered other services disconnected with his employer's busi- ness; as a chauffeur operating the automobile truck in deliver- ing merchandise he was engaged in a hazardous employment conducted by the employer for the pecuniary gain ; as a chauf- feur operating the touring car for the pleasure of his employ- er's family he was not engaged in a hazardous employment con- ducted for pecuniary gain. His status was similiar to that of a cook or butler in his employer's household. 85 While one in the employ of a fruit and produce storage com- pany might have been entitled to compensation for an injury received while performing duties in connection with the stor- 32. Lanigan v. Town of Saugerties, 180 App. Div. 227, 167 N. Y. Supp. 654. 33. Ten Broeck v. Town of Saugerties, N. Y. App. Div. , 167 N. Y. 1130, 16. N. C. C. A. 639. 34. Ruane v. New York, 181 App. Div. 912. 35. Winchester v. Morris, 179 App. Div. 600, 166 N. Y. Supp. 873. 2 W. C. L. J. 859. 251 51 WORKMEN'S COMPENSATION LAW age business, which was hazardous, he was not within the act while on a trip to another state solely for the purpose of buying fruits. 36 Where an employee's work is of a dual nature and he was injured in the nonhazardous branch, he is not within the act. 37 In an Illinois case the court said: "It was not intended that employers engaged in an extrahazardous occupation, but carry- ing on an independent occupation not extrahazardous, should be subjected to a greater liability than other employers, engaged in an occupation not hazardous. The duties of Cannell (deceased) having no connection whatever with the extrahazardous business conducted by the district at Lockport, and the sanitary district not having elected to come under the provisions of the act, his administrator was not entitled to compensation." 38 Where an employee is employed by two different employers and is injured, the business of the employer for whom he was working at the time of the injury will determine whether or not he was engaged in extrahazardous work. 39 51. Away from Plant. Under an act making the work- men's compensation remedy exclusive for injuries sustained i" the course of the employment away from the plant, or on the premises and at the plant, it was contended that a workman on a ship away from his employer's premises who was injured, while repairing an engine, through the negligence of one of the ship's employee's, could not maintain an action at law, the court overruling this contention said: "The complaint in this case is that the deceased was injured while making repairs on the steamship Hyades at Pier 9, Seattle, Wash., and away from the plant of the Standard Boiler Works. For the pui- 36. Sickles v. Ballston R. S. Co., 171 App. Div. 108, 156 N. Y. Supp. 864. 37. Kramer v. Indus. Ace. Comm; 31 Cal. App. 673, 161 Pac. 278, 14 N. C. C. A. 1083; Southern Pac. Co., v. Pillsbury 170 Cal. 782, 151 N. Y. Supp. 946; In re Sickler 171 N. Y. App. Div. 108, 156 N. Y. Sup. 864. 38. Sanitary District of Chicago v. Indus. Bd. 282. 111. 182,118 N. E. 475, 16 N. C. C. A. 697, 1 W. C. L. J. 548. 39. Bayer v. Bayer, 191 Mich. 423, 158 N. W. 109, 16 N. C. ( . A. 698. 252 HAZARDOUS EMPLOYMENT. 53 pose of the demurrer this statement is admitted, and, if the fact is otherwise, it must be presented by answer. If the injury causing the death of Brown had been occasioned by reason of a defect in tools and apparatus furnished and necessary for tho execution of the work in which he was employed, there might be reason for the contending that the 'plant' accompanied the employee to the place where the facilities of the enterprise were to be employed, and as between the employee and the employer the compensation act would be conclusive. But no reasonable construction, it seems to me, can be placed upon the language employed by the legislature and the general terms of the act, which determines that the 'plant' accompanies an em- ployee wherever he may go to perform services for his employer, as against a third party." 40 52. Altering. The laying of a water main which consti- tuted an addition to one already existing, was held to be an "altering," within the Wisconsin Labor Law regulating tho work of erecting, altering, repairing, or painting of any house, building, structure, etc. 41 53. Appliances. A moving picture machine is not an appli- ance within the meaning of section 2, of the New York Act, re- lating to the repair of electric machines and appliances, even though the picture machine was driven by an electric motor. A different question would be presented if the employee had been injured by the electric motor which operated the ma- chine. 42 Where the act makes an employment hazardous, where such employment includes the guarding of appliances for the pro- tection of the public, a school janitor, whose duties include the; caring for a furnace boiler, is engaged in the "guarding of appli- ances for the protection of the public", (children in the schoolhouse) and automatically come within the protection of the compensation act. 48 , . 40. Martin v. Watson Nav. Co., 244 Fed. 976. 16 N. C. C. A. 696 41. Kosidowski v. Milwaukee, 152 Wis. 225, 139 N. W. 187. 42. Balcolm v. Ellintuch & Yarfltz. 179 App. Div. 548. 43. East St. Louis Board of Education v. Indus. Comm 111. 1921, 253 56 WORKMEN'S COMPENSATION LAW 54. Bottling. Taking half-barrels of beer from a basement is held to be incidental to the bottling business, and within the New York Act. 44 55. Brick Making. Repairing machinery used to make brick is held to be incidental to brick making and so within the New York Act. 45 56. Building Construction, Repair, etc. Paragraph (B) of section 3 of the Illinois Act brings within the act every em- ployer engaged in the building, maintaining, repairing or de- molishing of any structure. "The employer must be engaged in the occcupation, enterprise or business, and therefore the building, maintaining or reparing of a dwelling house, which is neither . the occupation, enterprise or business of the owner does not bring him within the Act, nor does the building of a sbed or other similiar structure by or for a farmer come within the terms of the statute or the legislative intent. The defen- dant in this case maintained a large building let out and used for income, part of it occupied as a lodge room, dance hall and offices in connection, and the maintaining of the building \vas the business or occupation of the defendent. Such occupu- tion. enterprise or business is declared by clause 8 of paragraph (B) of section 3 to be extrahazardous. If the business of re- pairing such structure carried on by the Wixted Plumbing Company is extrahazardous, as it certainly is, the business of maintaining the structure and causing its repair was necessari- ly of the same character, and that being the occupation, enter- prise and business of the defendent she was under the act." 40 An employer who in 'having rooms in his residence kalso- mined is not engaged in, ''construction, repair, and demolishing of buildings for profit," which would bring such work within the enumerated class of hazardous employments. 47 131 N. E. 123. 44.. King v. Gross & Co., 179 App. Div. 966. 45. Smith v. Washburn & Co., 183 App. Div. 911, 224 N. Y. 619. 46. Johnson v. Choate, 284 111. 214, 119 N. E. 972, 2 W. C. L. J. 458. 47. Hungerford v. Bonn, App. Div. , 171 N. Y. 280, 2 W. C. L. J. 682. 254 HAZARDOUS EMPLOYMENT. 56 Construction of a building to be part of a shipbuilding plant, where the workman had to pass a galvanizing tank on t!i.; usual way to the toilet, was an extrahazardous occupation. 48 Under the Illinois act, which makes a person engaged in the business of erecting, altering, etc., of dwelling houses liable to the employees of a contractor unless the contractor has provided insurance, a retail grocer having a contractor to build a founda- tion under his dwelling house, disconnected from the store is not liable for injuries to the employees of the contractor since the grocer was not engaged in the business of altering dwelling houses. 49 An employee engaged to partition off a plant and do otiu-r carpenter work thereabout is not engaged in a hazardous occu- pation even though the employer's business of preparing macaroni is considered hazardous, for the repairing of the building was not the business which the employer was prosecuting for pecuniary gain. 50 The business of owning and operating a loft building is not one of the hazardous employments embraced within the terms of the Workman's Compensation Law. But, it will be noted that group 22 of the New York Workman's Compensation act was amended by L. 1916, C. 622, so as to include operation and repair of freight and passenger elevators as hazardous, and that group 42 was amended by L. 1917, C. 705, by adding "main- tenance and care of buildings" as hazardous occupations. 51 Where one's sole business was the managing, maintaining, and keeping in repair some 12 to 15 buildings, all except one or two 48. Welden v. Skinner & Eddy Corporation, Wash. , 174 Pac. 452 2 W. C. L. J. 859. 49. Alabach v. Indus. Comm., 111. , 1920, 126 N. E. 163, 5 W. C. L. J. 667. 50. Bargey v. Massaro Marconi Co., 218 N. Y. 410, 113 N. E. 407, 1 N. C. C. A. 642. Affg. 170 N. Y. App. Div. 103, 11 N. C. C. A. 322, 155 N. Y. S. 560, 16 N. C. C. A 644; Geller v. Republic Novelty Works, 180 App. Div. 762, 168 N. Y. S. 263. 16 N. C. C. A. 645. 51. Chappelle v. Four-Hundred & Twelve Broadway Co., 218 N. Y. 632, 112 N. E. 569, 16 N. C. C. A. 668. 255 58 WORKMEN'S COMPENSATION LAW of which belonged to him, he was engaged in the business of main- taining buildings and subject to the Illinois Compensation Act. 52 The casual engagement of a carpenter by the hour to put shelves in a store does not make the proprietor engaged in structural carpentry. 03 A farmer employing help temporarily to make repairs on his dairy barn was not engaged in a hazardous employment enumerat- ed in the New York Act as "structural carpentry," "roofing," and "construction and repair of buildings," as he was not en- gaged in that business for pecuniary gain. 54 The superintendent of an apartment building ; who was injured while standing on a stepladder planing away a part of a door, which work was a part of his duties, was not engaged in hazardous employment or structural carpentry, or construction, repair, and demolition of buildings. 55 The operation of a school building is not extra hazardous under . the Illinois Act. 56 57. Butcher Shop. The child labor law, the woman's ten hour law and city ordinance requiring butcher shops to take out licenses is not such legislation or regulation as would bring a retail grocery store and butcher shop, within the employment enumerated as hazardous by reason of section 3, cl. 8, of the Illinois Act, applying the act to persons engaged in enterprises in which statutory or municipal ordinance regulations, are im- posed for the protection of employees. 57 58. Cannery. An employee of a canning factory, injured while gathering beans on land cultivated by the factory, was held to be within the New York Act. 58 52. Storrs v. Indus. Comra., 111. , 121 N. E. 267, 3 W. C. L. J. 238; Johnson v. Choate, 284 111. 214, 119 N. E. 972, 2 W. C. L. J. 458. 53. Geller v. Republic Novelty Works, 180 App. Div. 762, 168 N. Y. Supp. 263. 54. Coleman v. Bartholomew, 175 App. Div. 122, 161 N. Y. Supp. 560. 55. Schmidt v. Berger, 221 N. Y. 26, 116 N. E. 382. 56. Compton v. Indus. Comm. 111. , (1919), 122 N. E. 872. 57. Dietrich v. Indus. Bd., 111. , 121 N. E. 226, 3 W. C. I,. J. 248. 58. Clarke v. Sherman, 184 App. 921. 256 HAZARDOUS EMPLOYMENT. 61 59. Carpenter Shop. An employer conducting a depart- ment store, a nonhazardous occupation, who had a carpenter shop upon one floor and employed carpenters regularly to work about the store, was conducting a hazardous occupation as far as the carpenters were concerned. 80 A carpenter engaged in repairing cars was engaged in a haz- ardous undertaking. 61 60. Carriers Carriages. Common Carriers by land are en- gaged in hazardous occupations so as to bring them within the provisions of the Illinois act of 1913. 82 A teamster hauling crushed stone for a teaming company which is engaged by another company to haul the stone for pav- ing work, is employed in the occupation of carriage by land. 88 One engaged in pushing a handcart was not engaged as a carrier by land, within the meaning of the act. 84 The driver of a milk wagon is not engaged in "carriage by land," so as to bring him within the act; his duties not bringing him in connection with any extrahazardous feature of his em- ployer's business. 88 The operation of vehicles to carry any person to funerals and burials conducted by an undertaker does not bring the business within the extrahazardous occupation of "carriage by land." 88 61. Hauling Incidental to Employers Business. The haul- ing of commodities as a mere incident to the business of the 60. Alterman v. A. I. Mann & Son, App. Div. , (1919), 179 N. Y. Supp. 584. 61. Meyers v. La. Ry. & Nav. Co., La. , 74 So. 256. A. 1 W. C. L. J. 705. 62. Chicago Rys. Co., v. Indus. Bd. 276 111. 112, 114 N. E. 534, 16N.C. C. A. 670. 63. Parker-Washington Co. v. Industrial Board. 274 HI. 498. 113 N. E. 976, 14 N. C. C. A. 1079. 64. Holtz v. Greenhut & Co.. 175 App. Div. 878. 162 N. Y. 8 359. 16 N. C. C. A. 671. 65. Bowman Dairy Co. v. Industrial Comm., 292 111. 284. 66. Hochspeier v. Industrial Board. 278 111. 523, 116, N. E. 121. 257 W. C. 17 61 WORKMEN'S COMPENSATION LAW employer does not constitute the employer a carrier by land, within the meaning of the Illinois act. 07 So, where a corporation was engaged in supplying water to the inhabitants of a city, the hauling of water to customers in parts of the city not reached by the pipe lines, was a mere inci- dent of its business, and did not constitute it a carrier by land. 68 An employer conducting a retail coal business who hires team- sters to make deliveries to his customers, was not a carrier by land. "The hauling and delivery of the coal were mere incidents of that business. Defendant in error was not hauling and deliver- ing coal for anyone but himself, and was therefore not engaged in the business or enterprise of carriage by land as such dealer in coal. In such business he was neither a common carrier of persons or property nor a private carrier for hire. He was simply con- ducting his own business of a retail coal dealer, and the delivery of the coal or hauling of the same was not the business of the defendant in error, but a mere incident of it, as was also the hauling of the hay or feed or any other "product that was neces- sary or convenient in the prosecution of his business. " fl9 " 'Carriage by land,' under subdivision 3 of paragraph (B), in the strict, literal meaning of the term might require that it in- clude the hauling of grain by team and wagon from the farm to the elevator. Surely that was not within the legislative inten- tion." 70 The Illinois Act as it now exists includes "the distribution of any commodity by horse-drawn or motor driven vehicle where the employer employs more than three employees in the enter- prise or business, except as provided in sub-paragraph 8" of section 3. 71 67. Mattoon Water Co. v. Industrial Comm., 291 111. 487; Fruit v. Industrial Board, 248, 111. 154; Hochspeier v. Industrial Board, 278 111. 523. 68. Mattoon Water Co., v. Industrial Comm., 291 111. 487. 69. Fruit v. Industrial Board, 284 111. 154, 119 N. E. 931, 16 N. C. C. A. 686. 70. Uphoff v. Industrial Board, 271 111. 312, 318, 111 N. E. 128, L,. R. A. 1916 E, 329, Ann. Cas. 1917 D, 1. 71. Kurd's Rev. St. 111., 1919, ch. 48, sec. 3. 258 HA/ARDOUS EMPLOYMENT. 65 62. Loading and Unloading. ''The words 'loading and un- loading,' in common use and understanding, apply as well to passengers as to freight and to street railways as well as to steam railways. Loading and unloading passengers on street railways is connected with the carriage of such passengers, and we have no doubt from the language of the act, persons engaged in such employment were intended to be embraced within its provisions." 1 63. Charitable Institution. A Charitable institution does not come within the Massachusetts Act. 73 64. Chauffeur Repairing Family Car. One injured in re- pairing ;i family car of an employer engaged in a hazardous occu- pation was held not to be engaged in work incidental to tha hazardous occupation and not within the act. 1 Tl 65. Coal Business. Prior to the amendment of 1916, con- ducting a coal yard was not a hazardous occupation. 75 In November of 1916 coal yards were not listed as hazardous occupation in the New York Act, and one injured while unload- ing coal from a car to a wagon by coal falling upon him, could not bring himself within the act by claiming to be operating a wagon, when he was especially employed to shovel coal off th-j car and had nothing to do with the operation of the wagon. One engaged in the retail coal business, is not engaged in an rxtra hazardous occupation bringing him within the act. Nor does it come within the classification of carriers by land, whi.:h of itself would make it an extra-hazardous employment. The haul- ing and delivery of coal was a mere incident of the employer's business. lie was not engaged in the calling of common carrier 72. Chicago Rys Co. v. Industrial Board, 114 N. E. 534, ,.76 111. 112. 73. Zoulalian v. New England Sanitarium, 7 Benevolent Ass'n, Mass. . 119 N. E. 686, 2 W. C. L. J. 267. 74. Wincheski v. Morris. 179 N. Y. App. Div. 600, 166 N. Y. 8. 873, 16 N. C. C. A. 681; Render v. Reineking. N. Y. App. Div. (1920), 126 N. E. 713, 5 W. C. L. J. 870. 75. Casterline v. Glllen, 182 App. Div. 105, 169 N. Y. S. 345. 16 N. C. C. A. 646. 76. In re Hassan, App. Div. , 172, N. Y. S. 430. 3 W. C. L. J. 181. 259 68 WORKMEN'S COMPENSATION LA\V of persons or property nor a private carrier for hire, but was merely conducting his own private business. 77 66. Collector. A collector for an employer engaged in the manufacture of malt was, while in the performance of his duties as collector, shot and killed in a saloon away from the plant, the shooting being intentional and for the purpose of securing money which the deceased had collected. Affirming an award the court said : ' ' Under subdivision 4 of section 3 of the Workmen 's Com- pensation Law, as amended by chapter 622 of the Laws of 1916, Spang at the time of his death was within the protection of the act. That amendment was intended to include ' an employee in the service of an employer carrying on a hazardous employ- ment, even though such employee is not actually engaged in a hazardous employment.' * * * Dose v. Moehle Lithographic Co., 221 N. Y. 401, 117, N. E. 616, 16 N. C. C. A. 633. * * * And by the plain language of the statute it is immaterial whether the shooting of Spang occurred at the plant of the employer 'or in the course of his employment away from the plant.' He was clearly 'in the course of his employment' at the time of his in- jury." 78 67. Commission Business. A commission business, conduct- ing no warehouse in connection with its establishment other than its own store-room where it held its goods for sale and distribu- tion, is not a hazardous occupation. 79 A wholesale produce commission merchant employing four or 'more men at his place of business comes within the act. 80 68. Construction. The term "construction," with refer- ence to a building, means the putting together of the materials 77. firuit v. Indus. Bd., W4 111. 154, 119 N. E. 931; 16 N. C. C. A. 680. 78. Spang v. Broadway Brwg. & Malting Co., 182 App. Div. 473, 169 N. Y. 574; 16 N. C. C. A. 637. 79. State v. J. P. Powels & Co., Inc. 94 Wash. 416, 162 Pac. 569, 16 N. C. C. A. 690; Mihm v. Hussey, N. Y. App. Div. , 155 N. Y. S. 860. 11 N. C. C. A. 328. 80. State Indus. Comm. v. Voorhees, App. Div. , (1920), 184 N. Y. S. 888, 7 W. C. L. J. 238, 260 HAZARDOUS EMPLOYMENT. 69 used therein. 81 The word ' ' construct ' ' is synonymous with ' ' erect ' ' as "construction" is with "erection." 82 "The words 'erection' and 'construction* seem to be synony- mous in their meaning, and in common acceptance when applied to a house, they mean the building of it by putting together the necessary material and raising it." 88 It may include work of enlargement, 84 and extension. 88 The word may include maintenance and repair or alteration, 8 " or it may not, 87 depending upon the manner in which it is used. The phrase "the immediate doing of the work of construction," in a policy of insurance relating to telephone construction work, was held to include the work of trimming a tree while putting up a line. 88 69. Dairy. A dairy company engaged in distributing milk is not engaged in carriage by land within the meaning of the act so as to bring it within the enterprises enumerated as extrahazard- ous when it would not otherwise be within this class. 8 * A superintendent of a dairy company's wholesale routes was injured when alighting from a street car, while enroute to reach a place where he was to give a new employee instructions in re- gard to his route. It was held that he was not at the time of 81. Scharff v. Southern Illinois Const. Co., 115 Mo. App. 157, 92 S. W. 126. 82. State ex rel. City of Chillicothe v. Gordon, 233, Mo. 383, 135, S. W. 929; Butz v. Murch Bros. Const. Co., 199 Mo. 279, 97 S. W. 895; McNair v. Ostrander, 1 Wash. 110. 83. Burke v. Brown, 10 Tex. Civ. App. 298. 84. People v. Farmer's etc., Co., 52 Colo., 626, 123 Fac. 646. 85. Graymount v. Stott, 160 Ala. 570, 49 So. 683; State ex rel. v. Miller, 21 Okl. 448, 96 Pac. 747. 86. Bell County v. Lightfoot, 104 Tex. 346, 138 S. W. 381. 87. Com. v. Hayden, 211 Mass. 296, 97 N. E., 783; State ex rel. T. Wilder, 200 Mo. 97, 98 S. W. 465; The O. H. Wessels, 177 Fed. 589, affd. 183 Fed. 561, 106 C. C. A. 107; Hancock's Appeal, 115 Pa. 1. 88. Camden Atlantic Tel. Co. v. United States Casualty Co., 227 fa. 242, 75 Atl. 1077. ' 89. Bishop v. Bowman Dairy Co., 198 111. App. Div. 312, 16 N. C. C. A. 667. 261 72 WORKMEN'S COMPENSATION LAW the injury engaged in a hazardous employment or operating a wagon within the meaning of the New York Act. 90 70. Decorating 1 .' An employee was injured while hanging a picture which his employer had sold. This work was merely incidental to his regular employment and would not, therefore, come within the designated class of hazardous employments of "decorating" or "picture hanging." 91 71. Dredging. Employees of a corporation engaged in dredging upon navigable waters, who are employed solely upon land are within the Washington Act. 92 72. Driver. An employee injured when putting away his horse at the end of a day's work of driving his truck in the usual course of a hazardous employment was held to be within the act. 93 A driver who was killed while driving a delivery wagon fov a partnership engaged in selling gasoline, was sufficiently connected with the extrahazardous employment of the employer to entitle his widow to compensation under the Illinois act. 94 Where the driver of a motorbus was killed by falling therefrom, the death occurred while the deceased was engaged in the opera- tion of an engine, and other forms of machinery which is hazar- dous within the meaning of the statute. 95 A teamster engaged in hauling rock for a construction com- pany is within the act. The court said: "The enterprise cannot be considered a mere incident to the general business in which plaintiff in error was engaged. It was the busineis or enterprise itself. * * * If it was only the hauling of one load of crushed 90. Balk v. Queen City Dairy Co., App. Div. , 172 N. Y. S. 471, 3 W. C. L. J. 177; Glatzl v. Stumpp, 220 N. Y. 71, 114 N. E. 1053. 91. Grassell v. Broadhead, 175 App. Div. 874, 162 N. Y. S. 42, 16 N. C. C. A. 684. 92. Puget Sound Bridge and Dredging Company v. Indus. Ins. Comm. Wash. , (1919) 177 Pac. 788, 3 W. C. L. J. 544. 93. Smith v. Price, App. Div. , 153 N. Y. S. 221, 9 N. C. C. A. 712. 94. Gibson v. Indus. Bd., 276 111. 73, 114 N. E. 515, 16 N. C. C. A. 637. 95. Haddad v. Commercial Motor Truck Co.,, (1920) La., 84 So. 197, 6 W. C. L. J. 54. 262 HAZARDOUS EMPIX)YMENT. 72 stone by a farmer or business man who was not engaged in con- struction or contracting work generally, undoubtedly then the proper conclusion would be to hold the hauling of such single load a mere incident to the main business- " The Supreme court of Illinois in holding that a teamster was within the provisions of the act where the main business was hazardous, said: "Here the duties of the deceased required him to work in and around the plant where the ice was manu- factured, and included the loading of ice, and the care of the horses in a large stable on the premises of plaintiff in error immediately adjacent to the main ice plant. We cannot see how it can fairly be held that the employment in which the deceased \\;is engaged was not a part of plaintiff in error's business or oc- cupation of manufacturing and selling ice * * *. The men in the buiding of plaintiff in error where the machinery was lo- cated and the ice manufactured were certainly within the act. The workmen around the building and caring for the property were within the act. Those who^e duties took them to the plant to take away the product were within the act, and we can reach no other conclusion than that the duties of the de- ceased were of such a nature, so related to and connected with the occupation of plaintiff in error, under the provisions of the workmen's compensation act, shall be held liable for the in- jury" 87 One driving a wagon, for an employer, with his own team for delivering to customers of the company, cannot recover for in- juries sustained in falling from the wagon. The court said: "Plaintiff in error contends that defendant in error com?s within the terms of the Compensation Act because it was main- taining a structure within the meaning of the act, and because it was engaged in carriage by landj and because it was engaged in a business in which statutory and municipal ordinance regu lations were imposed. We held in Hochspeier v. Industrial 96. Parker Washington Co. v. Indus. Bd., 274 111. 498, 113 N. E. 976, 14 N. C. C. A. 1097. 97. Suburban Ice Co. v. Indus. Bd., 274 III. 630, 113 N. E. 979. 14 N. C. C. A. 1080. 263 72 WORKMEN'S COMPENSATION LAW Board, 278 111. 523, 116 N. E. 121, L. R. A. 1918 F, 227 and in Fruit v. Industrial Board, 284 111. 154, 119 N. E. 913, that the hauling of commodities as a mere incident to the business of the employer does not constitute the employer a carrier by land within the meaning of the Workmen's Compensation act. We think our holding in those cases is decisive of the question here presented. The business or enterprise in which defendant in error was engaged and in which plaintiff in error was em- ployed when he was injured was that of supplying water to the inhabitants of the city of Mattoon. The hauling and delivery of this water are mere incidents of that business. The fact that the defendant in error was maintaining a structure and, that it had machinery at its plant is not controlling here. Plaintiff in error was not at the time of his injury engaged in any part of the business of defendant in error that had to do with ths maintenance or operation of the plant or pipe lines. Defendant in error had not elected to come under the act, and the injury sustained by plaintiff in error is not one arising out of or in the course of any employment declared by the act to be extrahaz- ardous. Because some other employees of defendant in error may have been engaged in some other part of the work that was extra- hazardous would not change the character of employment of plaintiff in error or .bring him within the provisions of the act. This question was discussed at length and the conclusion reached in Vaughn's Seed Store v. Simonini, 275 111. 477, 114 N. E. 163, Ann. Gas. 1918B. 713, 288 111. 163, 124 N. E. 297. The record does not show that defendant in error is engaged in a business in which statutory or municipal regulations are imposed. Even if it wars engaged in such business in the conduct and management of its water works plant, the injury did not arise out of or in the course of the employment of plaintiff in error in that business. In order to bring the employer under the act without election, it is neces- sary to show that the injury arose out of and in the course of em- ployment in which such regulations are imposed. Compton v. In- dustrial Com., 288 111. 41, 122 N. E: 872." 8 98. Matton Clear Water Co. v. Indus. Comm., 111. (1920), 126 N. E. 168, 5 W. C. L. J. 671. 264 HAZABDOUS EMPLOYMENT. 75 Under the Washington act the operation of a truck is not a hazardous occupation." 73. Drug Store. The conducting of a drug store is not a hazardous occupation. 1 74. Elevators. The operation of ordinary freight and pas- sengers elevators is not considered hazardous employment.* Prior to the amendment of the New York act, an employee in an apartment house who was injured while bringing an elevator from the basement to the main floor was denied compensation. 8 Repairing the doors of an elevator is incidental to its opera- tion. 4 75. Engineering Lifting Radiator. An employee engaged as a general plumber and carpenter about an apartment house, who was injured when endeavoring to obtain a radiator from a storeroom for the purpose of installing it was held not to be engaged in a hazardous employment. The court in construing the New York act said: "Group 42 of section 2, as it existed in January, 1916 (Cons. Laws, c. 67; Laws 1914, c. 41) specified ' plumbing, sanitary or heating engineering, installation . and covering of pipes or boilers.' The lifting of a radiator to connect it up for heating purposes was not heating engineering nor the installation and covering of pipes or boilers. That such work was not included within these terms is evident for the amendment 99. Collins v. Terminal Transfer Co., 91 Wash. 463, 157 Pac. 1092; Guerrieri v. Indus. Ins. Comm., 84 Wash. 266, 146 Pac. 608, 8 N. C. C. A. 440. 1. Freess v. Kleinau, App. Div. , (1919), 179 N. Y. Supp. 347, 5 W. C. L. J. 430. 2. Ouenieri v. Indus. Ins. Comm., 84 Wash. 266. 146 Pac. 608, 8 N. C. C. A. 440; Page v. New York Realty Co., Mont. (1921), 196 Pac. 871. 3. Sheridan v. P. J. Groll Const. Co., 218 N. Y. 633, 112 N. E. 568. Revg. 171 App. Div. 958, 155 N. Y. S. 859, 16 N. C. C. A. 669; Wilson v. C. Dorflinger & Sons, 218 N. Y. 84, 112 N. E. 567, 16 N. C. C. A. 670. 4. Carey v. Frambo Realty Co., 183 App. Div. 910. 265 77 WORKMEN'S COMPENSATION LAW to the law passed subsequently and in the same year. Laws 1916 c. 622. Group 42 was amended so as to read 'plumbing' sanitary lighting or heating installation or repair;' and the word 'engineer- ing' was dropped. So, too, group 22 was amended by the same act included 'heating and lighting.' The words 'maintenance and care of buildings' were not added to group 42 until 1917. Laws 1917, c. 70S. 5 76. Engineering Work. The word "work" is used in some of the acts in the sense of describing the active carrying on of a stated business or undertaking; as for instance; excavating work, engineering work, electrical work, etc. In this connection the definition of the word in the sense in which it is commonly used is of little or no value. As used in the acts in this manner it does not mean the labor bestowed, but the thing upon which the labor is bestowed. Engineering work, in which an employee was engaged, "was, therefore, a physical thing which embraced a cer- tain physical area. If therefore, the injured workman was at the time of the accident employed on, in or about the physical thing, the engineering work, he came within the act. ' ' 6 The work of constructing a street, using in that behalf a steam roller, is an engineering work. 7 77. Engineering Works. The words "engineering works," as is used in the Oklahoma statute, refers to establishments or places of business where engineering work is carried on, and does not refer to work of an engineer on a public highway. 8 The word "works" has been construed as meaning an estab- lishment for manufacturing, or for performing industrial labor of any sort, and including the building, machine^', etc., used in required operation. 9 5. Krammer v. Hawk, 221 N. Y. 378, 117 N. E. 576, 16 N. C. C. A. 677. 6. Atkinson v. Lamb, (1903) 1 KB 861, 88 LT 789, 72 L. Y. K. B. 46o, 19 T. L. Rep 412. 7. Lord v. Turner, 114 L. T. Jour. 133, 5 W. C. C. 87. 8. Board of Comr's v. Grimes, Okla. , 182 Pac. 897. 9. South St Joe Land Co v. Pitt, 114 Mo. 1 35, 266 HAZARDOUS EMPLOYMENT. 79 An establishment for manufacturing or for performing indus- trial labors. 10 It is said to have a definite signification, meaning a business of permanent character, as opposed to temporary employment, as used in the particular instance. 11 78. Ensilage Cutter. The operation of a feed mill or en- silage cutter is a hazardous occupation. 12 79. Enterprise. "An enterprise is 'an undertaking of haz- ard; an arduous attempt.' Lexicographers define an enterprise as 'an undertaking; something projected and attempted; an attempt or project, particularly an undertaking of some importance or one requiring boldness, energy or perseverance, an arduous or hazardous attempt, as, a warlike enterprise.' The building of this shed might be classed under the head of something projected or attempted, but hardly as an important undertaking requiring courage or energy or one that was arduous or hazardous. To say that the word 'enterprise' covered the building of any structure, however small, would lead, in some instances, to absurd conse- quences. A chicken coop or a dog kennel ten feet square and four or five feet high would be a structure in a technical sense of the term, but it would hardly be contended that such a structure was within the meaning of this act, according to the intent of the legislature. It is plain from the use of the word 'enterprise' in other subdivisions of said paragraph (B) that it was intended to mean a work of some importance that might properly be considered arduous or hazardous. The building of this sort of a structure was hardly more hazardous than the building of an ordinary board fence for a farm. From any fair construction of the act the legislature never intended to call working on every farm structure, no matter how small, as extra- hazardous. ' ' 10. Conroy v. Clinton. 158 Mass. 318, 33 N. E. 526. 11. In re Pardee's Appeal, 100 Pa. 408. 12. Raney v. Indus. Comm., 85 Ore. 199, 166 Pac. 523, 16 N. C. C. A. 875. 13. Uphoff v. Industrial Board, 271 111. 312, 111 N. E. 328. L. R. A. 1910 E 329. Ann. Cas. 1917 D 1. 267 80 WORKMEN'S COMPENSATION LAW A university is not engaged in an "enterprise," within the Illinois Act, although it uses and handles explosives, inflammable fluids and molten metals in the course of its instructions. 14 80. Erection. One of the primary definitions of the word "erect" is "to raise" as a building; to build, to construct. 15 "Erect" means to raise and set up in an upright or perpen- dicular position ; to raise, as a building ; built or constructed ; and, in defining a house as a building erected for public or pri- vate use, "erected" applies to any erection, as the construction of a tent of poles and canvas for private use, and makes it a house. 16 The word "erection," used with reference to building, means the putting together of the materials that are used therein, the putting together of the brick arid mortar, wood and other materi- als making the construction. 17 A statute of Wisconsin, known as the Labor Law, provides that a person employing another in labor of any kind in erecting repairing, altering, or painting of a house, building, or structure shall not furnish for the performance of such labor, scaffolding, hoists, stays, ladders, or other mechanical contrivances which are unsafe, etc. It was held that the laying of a water main was "erecting a structure," within the meaning of the law. 18 Within the meaning of a statute providing that every theatre hereafter erected shall be built to comply with the regulations prescribed therein, it was held that the word "erected," as so used was synonymous with "built," and that the statute, there- fore, applied to the alteration of a stable into a theatre, con- sisting of a large part of the stable, and using only such parts of the walls, etc., as were suitable for the new construction. 19 14. North v. Board of Trustees, 201 111. App. 449. 15. Butz v. Murch Bros. Const. Co., 199 Mo. 297, 97 S. W. 895; Eichleey v. Wilson, 42 Wkly. Notes Cas. (Pa.) 525, 527. 16. Favro v. State, 39 Tex. Cr. Rep. 452, 46 S. W. 932, 73 Ann. St. Rep. 950. 17. Scharff v. Southern Illinois Const. Co., 115 Mo. App. 157, 18. Kosidowski v. Milwaukee, 152 Wis. 223, 139 N. W. 187. 19. Greenough v. Allen Theatre & Realty Co., 33 R. I. 120, 80 Atl. 260. 268 HAZARDOUS EMPLOYMENT. 80 " 'And have erected a regular station' means more than the erection of a station house. The word 'erect' may mean 'to build' or it may mean 'to set up' or 'found' or 'establish' or 'insti- tute,' according to the context" 20 "Erection" includes additions to a building, 21 as the con- struction of an additional story, 22 or the addition of wings," or a kitchen. 24 "A construction cannot be given to the laws conferring power to levy taxes for the 'erection of public buildings,' which would limit the exercise of the power to the erection of new houses, when the object of the law could often be attained by erecting, at less expense, additions to public houses already built." 25 However, it has been held that every change, alteration, or addition in or to an existing structure does not constitute an "erection" or construction of a building, within the meaning of a statute giving mechanics' liens. The change or alteration, it was declared, must be such that the whole structure, as changed or altered, would commonly be regarded as another new and different building; and the addition of a back building to a main structure as, for instance a bathhouse and kitchen to a resi- dence is not an erection or construction of a building. 26 The addition of a basement to a frame house was held not to be an erection, within the meaning of a mechanic's lien law. 27 While the Pennsylvania cases hold that the word "erection" as used in the mechanic's lien laws, does not include repair, alteration, or addition, to houses or buildings already construct- 20. Port Huron & N. W. R. Co. v. Richards, 90 Mich. 577, 51 N. \V. 680. 21. Brown v. Graham, 58 Tex. 254. 22. Carral v. Lynchburg, 84 Va. 803, 6 S. E. 133; Driesbach v. Kel- ler. 2 Pa. (2 Barr) 77. 23. Harman v. Cummings, 43 Pa. (7 Wright) 322; Nelson v. 'Jamp- bell, 28 Pa. (4 Casey) 156. 24. Delione v. Long Branch Comr's, 55 N. J. L. 108, 25 At!. 274. 25. Brown v. Graham, 58 Tex. 254. 26. Rand v. Mann, (Pa.) 3 Phlla. 429. 27. Miller v. Oliver, 8 Watts (Pa.) 514. 269 81 WORKMEN'S COMPENSATION LAW ed, 28 where a building of brick and frame, was removed, and after its removal a cellar was dug under it and walled up, and a new chimney built, and the house newly weather-boarded and plaster- ed, it was held to be a building ' ' erected. ' ' 29 "Erected," as used in reference to a building, has been held to be synonymous with ' ' completed. " 30 A building "erected" is quite distinct from a building "being erected." To erect, when used in connection with a house, or church, or factory, is to build; and neither can be said to be erected, until they are built, completed. On the other hand, where a party, in subscribing for the erec- tion of a building for a university, agreed 1 , that if a building should be erected within a given time worth a stipulated amount, he would give $400, it was held that it was not essential that the building should be completed within the time in order that the subscription should be payable; that there is a great difference between erecting a building and completing one, and that a build- ing may be said to be erected when the walls are up and the material on the ground to complete it. 32 While the word "erection" has a definite meaning in so far as defining it is concerned, it will be observed from the cases re- ferred to that its meaning in any particular instance depends to an extent upon the context and purpose of the law or instrument making use of it. 81. Excavating. "The word 'excavating,' under subdivi- sion 2, of paragraph (B), might cover, technically, the digging of a post-hole on a farm, but it was certainly never so intended. 33 Digging of trenches by hand in making private connections to 28. Appeal of Hancock, 115 Pa. 1, 7 Atl. 773; Appeal of Wetmore, 91 Pa. 276; Rynd v. Bakewell, 87 Pa. 460. 29. In re Burling's Estate, 1 Ashm. (Pa.) 377. 30. Hartrath v. Holsman, 127 111. App. 560. 31. McGary v. People, 45 N. Y. 153. 32. Johnston v. Ewing Female University, 35 111. 518. 33. TJphoff v. Industrial Board, 271 111. 312, 318, 111 N. E. 328, L. R. A. 1916 E 329, Ann. Gas. 1917 D. 1. 270 I1A/.VRDOUS EMPLOYMENT. 83 a sewer is an extrahazardous occupation, within the meaning of a statute, which makes excavating extrahazardous. 34 82. Explosives, etc. The business of selling and delivering gasoline is extrahazardous, and it is immaterial that the injury to an employee was not due to the explosive character of the pro- duct handled in determining whether or not he was within the protection of the Compensation Act. Thus, where an employee fell from the seat of an empty gasoline wagon while returning from making a delivery, he was within the act. 85 A shooting gallery is not within a statutory provision relat- ing to the manufacture, storing or handling of explosives, gun powder or ammunition. 30 The use of dynamite in dangerous quantity for blowing up stumps in making a road, which can be done in a few hours time, and which is seldom necessary in such work, is a casual employment ; and a teamster employed to plow and grade the road, and who is injured while assisting in the dynamiting, can- not recover under the Compensation Act." The use of explosives, such as inflammable fluids and molten metal, by a university in the course of giving instruction, is not within the Illinois Act." 83. Factory. Under a statute defining factory as "a place where power is used in manufacturing," the Kansas court held that a place where barrels were made, without the use of any power other than hand power, was not a factory. 3 ' A night engineer in a piano factory is employed in a hazardous occupation. 40 , 34. Scully v. Indus. Comm., 284 111. 567. 120 N. E 492, 3 W. C. L. J. 30. 35. Gibson v. Industrial Board. 276 111. 73. 36. LJngner v. McOrath. 187 App. Div. 911. 37. Mclaughlin v. Industrial Board. 281 111. 100. 38. North v. Board of Trustees. 201 111. App. 449. 39. Menke v. Hauber. 99 Kan. 171. 160 Pac. 1017, 16 N. C. C. A. 692. 40. Nulle v. Hardman. Peck & Co., N. Y. . 173 N. Y. 8. 5536, J W. C. L. J. 343. 271 90 WORKMEN'S COMPENSATION LAW 84 Farming. Farming is not a hazardous occupation. 41 85. Florists. Where a florist undertakes to deliver flowers using an automobile for that purpose he thereby brings his busi- ness within the class of enumerated hazardous employments 42 86. Garbage Disposal Plant. The fact that refuse may con- tain material value for fertilizing purposes does not make the dump a garbage disposal plant within the meaning of the act, and an employee, engaged in searching for rags among the rubbish, is not employed in the manufacture of fertilizers nor up- on a garbage disposal plant connected therewith. 43 87. Garbage Removal. The principal business of the em- ployer being garbage removal, an employee whose sole work is sorting on the dump, is within the act. 44 88. Groceries, Wholesale. " Wholesale groceries" includes the sale of groceries in bulk to grocery stores and restaurants by one who conducts a retail store in connection with such busi- ness. 45 s 89. Heating. The mere incidental heating of a saloon by a self regulating boiler does not come within the New York provi- sion relating to heating. 46 90. Hoisting Apparatus Hand Elevator. Where it was shown that the room wherein deceased was employed contained a movable elevator for raising and lowering heavy cases which 41. Seggebruch v. Indus. Comm., 111. , (191S), 123 N. B. 176, 4 W. C. L. J. 156. 42. Glatzl v. Stumpp, 220 N. Y. 71, 114 N. E. 1053, 16 N. C. C. A. 645; Revg. 174 App. Div. 901, 159 Supp. 11H5. 43. Guiseppi Toirassi v. Harold B. Christensen Jr., 156 N. Y. S. 905, 171 N. Y. App. Div. 284. 44. Sacalli v. Marrone, 2 N. Y. Bui. 19, 12 S. D. R. 543. 45. Jurgreau v. Scherzer, 185 App. Div. 920. 46. Hermann v. Wolff, 4 N. Y. Bui. 88, D. R 609. 272 HA/ARDOUS EMPLOYMENT. 91 elevator was operated by hand power, while the room adjacent contained power driven elevators upon which the deceased and other employees rode while in the performance of their work, the court in granting a new trial said : Little doubt can be enter- tained that the hand elevator is a 'hoisting apparatus' within the meaning of the statute, and that the stamping machine and the power driven elevators are also included in the statutory lan- guage. The fact that the stamping machine had not been operated for the 3, weeks before the accident, on account of the strike, did not remove it from the class of machine whose operation involved more or less danger to the employee in the immediate vicinity. It was liable to be put in motion at any time. Its operation was not permanently discontinued. The applicability of the statute to a particular machine does not depend upon its continuous operation while employees are at work. The liability to be put in motion at any time renders it a dangerous instrumentality installed by the manufacturer for the use in his mill or factory." The court observed, further, that an employee was within the protection of the statute, "because his employment at times brought him in proximity to dangerous machinery, though at the time of the accident he may not have been in such proximity. 41 91. Hospital. "The mere conducting of a hospital for treating injured and sick persons, as contented by the appellee, is not, of itself, extrahazardous, yet a hospital is named in the statute as one of the enterprise which may become extrahazard- ous when it is conducted in a building of such height (seven stories) and in a city where municipal ordinance regulations are or shall be imposed ' ' for the regulating, guarding, use or the placing of machinery or safeguarding of the employees or the public there- in." It cannot be truly said that conducting a hospital in a pop- ulous city like Chicago, in a seven-story building and under the ordinance regulations, such as are imposed on appellee, cannot be extrahazardous, or even hazardous, if conducted in a one- 47. Morln v. Nashua Mfg.Co., N. H. . 103 Atl. 312. 16 N. C. C. A. 694 This case upon a former hearing was entitled. LJzotte v. Nashua MfK. Co., N. H. , 100 Atl. 757, 16 N. C. C. A. 693. 273 W. C. 18 94 WORKMEN'S COMPENSATION LAW story building without such regulations and without being sur- rounded by dangerous machinery, equipment, and appliance, to prevent serious accidents, made serviceable or driven by electric- ity or some other extraordinary dangerous agency. * * * "Under the evidence in this case we think it clearly appears that the hospital of appellee i. e., the business or enterprise of conducting a hospital by it in the buildng with the machinery appliances, and equipment therein used, is, in fact, extrahaz- ardous within the meaning of the statute. Many of its employees are engaged in handling, repairing, and operating dangerous machinery, equipment, and appliances, and are exposed to the dangerous agency or power which drives or makes serviceable such equipment and appliances. Not only are those employees exposed to such dangers, but all other employees therein are more or less exposed to them. Extraordinary care and skill are re- quired in handling and management of said equipment and appli- ances to prevent serious accidents." 48 92. Hotel. To come within the provisions of "hotels having fifty or more rooms," as used in the New York Act, it is not es- sential that the fifty rooms be contained in one building; they may be scattered under separate roofs. 49 93. Ice Harvesting. Harvesting ice for farm use is not within the designation of "ice harvesting." 50 94. Installation of Water Tank. The installation of water tanks does not come within the enumerated classes of hazardous employments nor can it be considered, to come within the pro- vision covering the installation of boilers, engines or heavy ma- chinery. 61 48. Hahnemann Hospital v. Indus. Bd. of 111. 282 111. 316, 118 N. E. 767 (1918), IB N. C. C. A. 666, 1 W. C. L. J. 754, revg. 205 111. App. 478. 49. Mosher v. Luther, 190 App. Div. 963; Flannery v. Gobel, 17 D. R. 586, 3 Bui. (N. Y.) 220. 50. Mullen v. Little, 186 App. Div. 169. 51. Maloney v. Levy & Gilliland Co., 176 App. Div. 470, 163 N. Y. S. 505, 16 N. C. C. A. 674. 274 HAZARDOUS EMPLOYMENT. 97 95. Junk Business. The operation of a junk yard, where power driven shears and acetylene torch are used is a hazardous employment. 82 Breaking up a wheel may be incidental to the junk business. 53 Buying second-hand bottles is not dealing in junk. 84 96. Logging*. A farm hand, hauling a load of logs, cut from his employer's farm, to mill, was not within the provision of the New York Act relating to logging. "While plaintiff, the employee, would be included within the general language of sub- division 4, of section 3, as engaged, in a hazardous occupation, still it is expressly provided in subdivision 4, of section 3, of the act, that the term 'employee' shall not include farm laborers or domestic servants, so that even if a farm laborer is engaged in logging, he is specifically excepted from the provisions of the act. Defendant and two or three men were getting out logs on his farm ; and, merely because he was going to sell the lumber did not, we think, take it out of what is generally understood to be farm labor." 88 97. Longshore. The fact that a city dump was located near the shore does not make a ragpicker injured while at work in the dump, a longshoreman within the meaning of the act. 5 ' One injured while unloading stoves is not engaged in a hazard- ous occupation nor does he fall within the class of employee sched- uled in the New York Act as longshore. The court said: "It is clear that the plaintiff was not engaged in longshore work, nor in the handling of cargoes nor was he then engaged in the hand- ling of the same in any warehouse or other place of storage. It is dear from a reading of the section that it was the intention of 62 Cinofsky v. Indus. Contra., 111. , (1919), 125 N. E. 28. 5 W. C. I* J. 185. 53. Levine v. Gould's Sons, (N. Y.) 14 S. D. R. 619, 3 Bui. 78. 54. Kronberger v. Harlem Bottle Co., 181 App. Dlv. 900. 55 Brockett v.Mietx. 184 App. Dlv. 342. 66. Tomassi v. Chriatensen, 171 App. Div. 284, 156 N. Y. S. 905. 16 N. O. C. A. 678. 275 98 WORKMEN'S COMPENSATION LAW the legislature to cover such cases as might arise in the removal of cargoes from ships and docks to warehouses, especially carried on for hire.'' 57 Nor is one employed as watchman over cargoes engaged in tho work of a longshoreman. 58 98. Maintain. The word "Maintain" has been held to mean to support that which has already been brought into exist- ence ; 59 to hold or keep in a particular state or condition, especial- ly in a state of efficiency; to support, sustain, not to suffer to de- cline. 60 The word may be used in the sense of having control and custody of a place, 61 and has been construed to include the erec- tion of a fence, 62 and the operation of an elevator. 63 It is frequent- ly used as meaning to keep in repair ; 64 but what repairs are in- cluded depends upon the context of the instrument in which it is used. 65 It has been held to include the rebuilding of a bridge washed away by an extraordinary freshet. 66 Cleaning streets is repairing or maintaining them, within a law authorizing designa- ted officials to construct, repair and maintain highways. 67 The 57. GutJheil v. Consolidated Gas Co., 94 N. Y. Misc. 690, 158 N. Y. S. 622, 16 N. C C. A. 677. 58. Oberg v. J. C. McRoberts & Co., 175 App. Div. 1, 161 N. Y. S. 934, 16 N. C. C. A. 679. 59. Kemdrick & Roberts v. Warren Bros., 110 Md. 47, 72 Atl. 461; Coleman v. Mississippi & Rum River Boom Co., 114 Minn. 443, 131 N. W. 641, 35 L. R. A. (N. S.) 1109; Hoar v. Hennessy, 29 Mont. 253, 74 Pac. 452. 60. Kovachoff v. St. Johns Lbr. Co., 61 Oreg. 174, 121 Pac. 801. 61. State v t Ross, 86 Kan. 799', 121 Pac. 908. 62. Hoar v. Hennessy, 29 Mont. 253, 74 Pac. 452. 63. Globe Ins.) Co. v. Wayne, 75 Ohio St. 451, 80 N. E, 13. 64. Ferguson v. Rochford, 84 Conn. 202, 79 Atl. 177, Ann. Gas. 1912 B. 1212; Green River Asphalt Co. v. St. Louis; 188 Mo. 576, 87 S. W. 985; Missouri, K. & T. R. Co. v. Bryan, Tex. , 107 S. W. 572, citing Verdin v. St. Louis, Mo., 27 S. W. 447. , 65. Green River Asphalt Co. v. St. Louis, 188 Mo. 576, 87 S. W. 985. 66. Louisville & N. R. Co., v. United States Iron Co., 118 Tenn. 194, 101 S. W. 414. 67. Connor v. Manchester, 73 N. H. 233, 60 Atl. 436. 276 HAZARDOUS EMPLOYMENT. 100 same is true of such work within the Illinois Compensation Act. 68 "The first and primary definition given to the word 'maintain' both in Webster's Unabridged Dictionary, and in Webster's In- ternational Dictionary, is, 'to hold, or keep in any particular state OP condition.'* * * The word 'operate' does not mean the same thing as either the word 'construct,' the word 'main- tain,' or the expression 'keep in repair,' and is not included in the significations of either." 69 "The business of washing windows, as such, in large cities is as much a part of the maintenance of buildings as would be the replacing of glass in windows, the painting and dec- orating of the buildings, or the repointing of the outside where the mortar between bricks was giving way." 70 99. Manhole Construction. Constructing a manhole in the city streets is not a hazardous occupation. 71 i 100. Manufacture. "Manufacture" does not include mere wholefiale dealing} Consequently, a dealer in dress trimmings does not come within a provision relating to the manufacture of such articles. 72 The making of hat*J and feathers in a millinery business is a hazardous employment. 78 Machinery salesman required to inspect machinery in opera- tion, is employed in the "Manufacturing" of machinery, a haz- ardous employment. 74 The manufacture of stock tonics is held to be manufacture of cattle food, within the New York Act. 78 Prior to the amendment of the New York Act to include the manufac- 68. Rock Island v. Industrial Board, 287 111. 76. 69. McCheaney v. Hyde Park. 151 111., 634, 646. 70. Chicago Cleaning Co. v. Industrial Board, 283 111. 177, 181, 118 N. E. 989. 16 N. C. C. A. 683. 71. Puget Sound Traction Light & Power Co. v. Schleif, (C. C. A.) 220 Fed. 48, 9 N. C. C. A. 715. 72. Kass v. Herachberg. Schultz & Co., 191 App. Div. 300. 73. Saenger v. Locks, N. Y. , 116 N. E. 367. B. I. W. C. L. J. 1208. 74. Benton v. Fraser, N. Y. , 114 N. E. 43, B. 1. W. C L. J. 1176. 75. Markham v. United Breeders Co., 4 S. D. R. 390, 175 App. Dir. 957. 277 100 WORKMEN'S COMPENSATION LAW ture of dairy products, the court denied compensation for the death of an employee of a grocery company resulting from blood poison caused by an injury to his hand while packing butter in tubs. 76 A general utility man, who was killed while building a shelf in a wholesale drug establishment, was within the provision of thie New York Act relating to the Manufacture of drugs and chemicals. 77 An employee of a retail druggist injured while making glycerite of tannin, a simple process of heating glyc- erine and stirring in tannin, was not engaged in the manufacture of drugs, within the New York Act. 78 A chef in a hotel, injured while cutting up meat for distribu- tion, was held not to be engaged in a hazardous occupation, since the preparation of food stuff as used in Section 2. of the act did not mean the ordinary preparation of meat or food-stuff for cooking purposes, but involved a preparation which either changed the form of the material to render it suitable for use, or changed the nature of the material for the same purpose. 79 The commission is justified hi awarding compensation to an employee who was injured while handling plate glass, which comes within the statutory enumeration of hazardous employ- ments, on mere proof that he was injured in such occupation. The burden of showing that at the time claimant was engaged in merely packing glass which had been sold to a customer, and which is an ordinary occupation rested upon the employer, and in the absence of such proof the award will be upheld. 80 The word "moulding," as used in the New York act relating to manu- facture of mouldings, etc., does not include the fastening of mouldings for picture hanging. 81 The manufacture of moving 76. Pardy v. Boomhower Grocery Co., 178 App. Div. 347. 77. Larsen v. Paine Drug Co., 169 App. Div. 838, 218 N. Y. 252. 78. Frees v. Kleinau, 190 App Div. 131. 79. De La Gardelle v. Hampton Co., 167 App. Div. 617, 163 N. Y. S. 162, 9 N. C. C. A. 703. In this connection, notice should be directed to the amendment of group 34 of the New York Act, by Laws 1917, ch. 705, to include, "hotels having fifty or more rooms." 80. McQueeney v. Stuphens & Hyer, 167 N. Y. App. Div. 528. 81. Grassell v. Broadhead, 175 App, Div. 874, 162 N. Y. Supp. 421. 278 HAZARDOUS EMPLOYMENT. 103 picture films includes alteration and repair incidental to their distribution; 82 but does not include the taking of a moving pic- ture. 83 The manufacture of trunks includes repair of trunks in retail stores belonging to the manufacturer. 84 Likewise, manufacture of shoes is held to cover the repair of shoes in shoe repair shops. 85 101. Mason or Concrete Work. One engaged in digging under a wall for the purpose of building a pier is not engaged in mason or concrete work so as to bring him within the New York Act. 86 An excavation for the purpose of erecting a pillar to strengthen an existing building is incidental to the "concrete work," within the provisions of the act relating to hazardous em- ployment, so as to include an injury to a workman while making the excavation. 87 102. Meat Market. Prior to the amendment 1916, conduct- ing a meat market was not considered a hazardous occupation under the New York Act. 88 103. Minor. The engagement of a minor to work at a haz- ardous employment in violation of the statute will render the compensation act inapplicable in so far as the child is concerned. 89 82. McDowell v. New Film Corp., 183 App. Div. 910. 83. Michel v. American Cinema Corp., 182 N. Y. Supp. 588, 6 W. C. L. J. 375. 84. Caplan v. Belber Trunk & Bag Co., 4 N. Y., Bui. 54, 18 S. D. R. 563. 85. Santello v. Bell Bros.. 188 App. Div. 946. 86. Morris v. Muldoon, App. Div. (1919), 177 N. Y. S. 673, 4 W. C. L. J. 623. 87. Morris v. Muldoon. App. Div. (1920) 180 N. Y. S. 319, 5 W. C. L. J. 570. 88. Pietha v. Murdter, 174 N. Y. App. Div. 764, 161 N. Y. Supp. 661, 16 N. C. C. A. 640. 89. Kruczkowski v. Polonla Pub. Co., 203 Mich. 213, 168 N. W. 932, 17 N. C. C. A. 611; Waterman Lumber Co. v. Beatty. Tex. Civ. App.^ 204 S. W. 448. 17 N C. C. A. 614. See section, 14, ante, Minors. 279 104 WORKMEN'S COMPENSATION LAW In New York it is held that a child, injured while operating an elevator in violation of the Labor Law, must seek redress solely under the Compensation Act. 90 104. Moving Picture. (See Manufacture.) The operation of a moving picture machine is not work in connection with ' ' elec- tric power lines, dynamos or appliances" so as to make it a haz- ardous employment. The court said : ' ' The word is used in Sec- tion 2, Group 12, of the New York Act, in connection with the re- pair or operation of electric light and electric power lines, dyna- mos and power' transmission lines. Plainly the application of the rule of ejusdem generis precludes the construction claimed by the respondent. The word 'appliances' must be considered as limited by the words with which it is associated. * * * The motor which applied the current to the moving picture machine might properly be called an appliance with the meaning of group 12, and had the claimant been injured while operating the motor a very differ- ent question would be presented. It can hardly be said, however, that the machine to which the electricity was applied, simply re- sulting in the machine being put in motion, was an appliance within group 12. The operation of the machine by electricity or the presence of electricity had nothing to do with causing the in- jury to claimant. The injury would have been sustained had the machine been operated by means of water or any other motive power. The only connection between the electric power and claimant's injury was that electric power operated the machine upon coming in contact with which the claimant was injured. As well might it be claimed that a person struck by a revolving crank of a washing machine, the operating power of which was electricity, was injured by an electrical appliance. Cars and machinery of all kinds are operated by electricity yet it cannot be said that such mere consumers of electric current are them- selves electrical appliances." 91 90. Robilotto v. Bartholdi Realty Co., 104 Misc. 419. 91. Balcom v. Ellintuch & Yarfitz, 179 App. Div. 548, 166 N. Y. S. 841, 16 N. C. C. A. 681. 280 HAZARDOUS EMPLOYMENT. 104 105. Mining Quarrying. The word "mining" is often used in a very broad sense, and in sucli sense it includes quarry- ing, as, for instance, of slate from an open quarry. 92 The term includes the whole mode of obtaining metals and minerals from the earth. 98 "Taking ore from the surface of the earth or shallow pits is as much mining as if it were dug from deep mines. 94 It is some- times expressly used as covering and including sinking, drilling, boring, and operating wells for petroleum and natural gas. 95 The procurement of coal by digging in the earth is termed "min- ing." 96 "Mining operation" has to do with the working of a mine, and a "mine," defined as an excavation in the earth for the purpose of getting metal ores or coal, does not include an oil well. 9T "Quarry" is not properly applicable to the comparatively slight excavation on land made primarily for purposes of con- struction there on, and not primarily for the purpose of disposing of the rock, or stone or other material taken out. It is similar to a mine, in the sense that the material removed, be it mere rock, or stone, or valuable marble, is removed because of its value for some other purpose and in the sense that it is not re- moved for the purpose of improving the property fiom which it is taken. It is distinguished from a mine in the fact that it is usual- ly open at the top and front, and the ordinary acceptation of the term, in the character of the material extracted. 98 "Pits" is synonymous with "Quarry," signifying a large opening in the earth from which rock or ores are taken. 99 So, 92. Burdick v. Billion, 144 Fed. 737. 75 C. C. A. 603; In re Mathewa Consol. Slate Co., 144 Fed. 724. 93. Williams v. Toledo Coal Co., 25 Oreg. 426. 94. Coleman v. Coleman, 1 Pearson (Pa.) 470. 95. Consumer's Gas Trust Co. v Quinby, 137 Fed., 882. 70 C. C. A. 220; State v. Indiana & Ohio O., G & M. Co. 120 Ind. 575, 22 N. E. 778. 6 L R. A.579. 96. Escoot v. Crescent Coal & Nav. Co., 56 Oreg 190, 106 Pac. 452. 97. Guffey Petroleum Co. v. Murrel. 127 IA. 466, 53 So. 705. 98. Ex parte KeJso, 147 Cal. 609. 82 Pac. 241. 109 Am. St. Rep. 178. 99. Guffey Petroleum Co. v. Murrel. 127 La, 466, 53 So. 705. 281 108 WORKMEN'S COMPENSATION LAW ' ' coal bed ' ' may be used in the sense of ' ' quarry. " x " Working the quarry ' ' means the workng of the pit, and the doing of any work necessary for the proper and convenient use of the pit, such as the removal of earth, debris, water, ice, or snow, would be work- ing the quarry as truly as the blasting and removal of the slate. 2 106. Night Watchman. Where a night watchman's duties included the firing of boilers and filling of glue vats he was an employee engaged in a hazardous employment. 3 A night watch- man in a bakery at a time when it was not in operation was not engaged in a hazardous employment. 4 107. Oil and Gas Wells. Prior to the amendment of 1916, to the New York Act, the operation of oil or gas wells was not considered a hazardous occupation. 5 108. On, In, Or About. The words "on, in, or about," as appear in some of the a the course of his employment. The court said: "Doubtless there was a dis- eased condition before; the injury; it maybe that the injui'y would not have caused hjis death but for these antecedent con- 33. In re Henry P. Disley, 2nd A. R. U. S. C.. C. 118. 34. In re Frank Banyea, 2nd A, R. U. S. C. C. 118. 35. Hartford Ace. & Indem. Co. v. Indus. Comm., Cal. App. , 163 Pac, 225 Al W. C. L. J. 223. 36. In re Bowers, Williams, Colan, 64 Ind. App. 116 N. E. 842, 15 N. C. C. A. 633; St. Clair v. A. H. Meyer Music House, Mich. (1920), 178 N. W. 705j 6 W. C. L. J. 540; Hanson v. Dickinson, < la. , (1920), 176 N. W. 823, 5 W. C. L. J. 837; In re Percy B. Spencer 2nd. A. R. U. S. C. C, 198; Patrick v. J. B. Ham Co. Me. , (1921), 111 Atl. 91& 312 PERSONAL INJURY OR DEATH BY ACCIDENT, 138 clear from the evidence, would warrant vacating the present award." 87 "At the time of his accident, Harry Banks was suffering from typhoid fever in the incubation stage, which became aggravated by the severe injury to his head through the consequent lower- ing of his resisting power and the said disease thus aggravated caused his death." The court of appeals affirmed a judgment of the appellate division affirming the award. 38 Where the employee, while ah work, slipped and bumped his neck, went, home for three weeks, then worked, then quit, and nine months thereafter died of pulmonary tuberculosis, in affirm- ing an award the court said: "The evidence shows quite clearly, and the commission has found, that the disease existed before the injury, which accelerated the disease and shortened life. The in- jury caused a hemorrhage, which, so far as the evidence discloses, the deceased never experienced before or after, and there is medi- cal testimony to the effect that such an injury would develop the disease then existing. If an employee has a disease, and having the ame, receives an injury 'arising out of and in the course of em- ployment,' which accelerates the disease and causes his death, such death results from injury, and the right to compensation is se- cured even though the disease itself may not have resulted from the injury." 38 37. Mazarisi v. Ward & Tully, 170 N. Y. App. Div. 868, 156 N. Y. Supp. 964, 15 N. C. C. A. 634; Stombaugh v. Peerless Wire Peace Co., 198 Mich. 445, 1164 N. W. 537, 15 N. C. C. A. 635. 38. Banks v. Adams Express Co., 221 N. Y. 606, 117 N. E. 1060, 15 N. C. C. A. 639; Utilities Coal Co. v. Herr, Ind. App. , 132 N. B. 262. 39. Van Keurene v. Dwight Divine & Sons, 179 N. Y. App. Div. 509, 165 N. Y. Supp. 1049; In re Bowers, 64 Ind. App. , 116 N. E. 842; Peoria R., etc.. Co. v. Indus. Bd., 279 111. 352, 116, N. E. 651; Indianapolis Abattoir Co. v. Coleman, 64 Ind. App. , 117 N. E. 502, 1 W. C. L. J. 41; Indian C. C. & Mining Co. v. Calvert. (Ind. App.), 119 N. E. 519, 2 W. C. L. J. 230; Behan v. Honor Co., 143 (La.), 78 So. 589, 2 W. O. L. J. 67; Republic Iron & Steel Co., v. Markiowicz. -- Ind. App. , (1921). 129 N.E. 710; Glennon's Case, Mass. , (1920), 128 N. E. 942, 7 W. C. L. J. 210. 313 138 WORKMEN'S COMPENSATION LAWS. Where an employee was at the time of his injury suffering from a tumor, which condition was aggravated by the injury he was nevertheless entitled to compensation. 40 Where an employee, engaged in baling scrap copper, was found dead near the baling press, with a completed bale of cop- per besides him, and an autopsy disclosed an acute hyperemia of the organs of the body and the heart somewhat enlarged, and it was contended that the employee's heavy work accelerated death on account of this, condition, the court staid: "In this case there was no evidence tending to prove any accident or accidental injury to the deceased. There was no mark on his person and nothing from which it could be inferred that an accident had oc- curred, and it is not claimed that there was auk accident but only that the heavy work which he was doing in the ordinary course of his employment caused or hastened the death." Compensation was denied. 41 It is sufficient to justify an award, if the accident, by weaken- ing resistance, or otherwise, influences existing disease to cause death or disability. 42 Where excessive strain from overwork caused a, break of an aneurism from which an employee was suffering, it was held to be a compensable accident. 43 Wherte it was claimed that latent tuberculosis germs which were in the system were caused to become active by an injury to the employee's hand, the court held the proof insufficient. 44 "Suppose the deceased did have an aneurism of the aorta, and while assisting in the lifting of the iron plate on Nov. 18th he fell and was found dead ; it can reasonably be found, I think, 40. Big Muddy Coal, etc., Co. v. Indus Bd., 279 111. 235, 116 N. E. 662; Hartz v. Hartford Faience Co., 90 Conn. 539, 97 Atl. 1020; In re Chas Carter, 2nd A. R. U. S. C. C. 197. See Conn. Act, Am. 1921, 5341. 41. Jakub - v. Indus Comm., 12'3 N. E. 263, 4 W. C. L. J. 153, 288 111. 87. 42. Mailman v. Record F. & M. Co., 118 Me. 172, 106 Atl. 606, 4 W. C. L. J. 205. Voorhees v. Smith, 86 N. J. L. 500, 92 Atl. 280, 7 N. C. C. A. 646; Trodden v. Mcl>ennard, 4 B. W!. C. C. 190; Doughten v. Hick- man, 6 B. W..C. 0. 77; Puritan v. Wolfe, (Ind. App.), 120 N. E. 417. 43. Grove v. Michigan Paper Co., 184 Mich. 449, 151 N 1 . W. 554. 44. White v. Lanter, 37 N. J. Law J. 175. 314 PERSONAL INJURY OR DKATII BY ACCIDENT. 138 that the exertion of lifting the iron plate or assisting therein, was too much for his diseased, enfeebled or weakened condition, that it resulted in anj accident to him, and that therefore, he should be entitled to compensation." 46 Where a a employee was suffering from a sarcoma condition of the bone whicli-aondition was so aggravated by being struck by a piece of coal falling thereon, that it wad necessary to ampuftate the leg, it was held to be a compensable accident. 46 Where a school principal who was suffering from arterio sclerosis was struck on the head by a basket ball and died there- from and it was shown that he would have lived several years but for the accident, it was nevertheless* heldi that his. defendants were entitled to compensation. 47 Assuming that such disability is being prolonged by the disease, there is yet no point at which the consequences of the injury cease to operate. It is the theory of the respondents, not that the consequences of the injury cease, but that they are prolonged and extended. There is no part of the period of disability that would have happened or would have con- tinued except for the injury. The consequences of the injury ex- tend through the entire period, and so long as the incapacity of the employee for work results from the injury, it comes within the statute, even when prolonged by pre-existing disease." 48 Where an employee sustained an injury to his head and, due to a pre-existing constitutional disease known as syphilis, de- veloped a condition of forisis rendering him insane, it was held he was entitled to compensation. 411 "The disease, which the Commission finds existed prior to the accident, did not 'naturally and unavoidably result' from the acci- 45. Winter v. Atkinson, 37 N. J. L. J. 195, 11 N. C. C. A. 180, Aff'd. ia 88 N. J. U 401, 96 Atl. 360. 46. Prokopick v. Buffalo Gas Co., 7 N. Y. St. Dep. Rep. 390. 47! City of Milwaukee v. Industrial Comm., 160 Wis. 238, 151 N. W. 247. 48. Hills v. Oval Wood Dish Co., 191 Mich. 411, 158 N. W. 214, 15 N. C. C. A. 649; Blackburn v. Coffeyville Vitrified Brick & Tile Co., 1920, 193 Pac. 351, 7 W. C. L. J. 58. 49. In re Crow ley, 223 Mass. 288, 111 N. E. 786, 15 N. C, C. A. 346; Finkelday v. Henry Heide, 183 N. Y. S. 912. 6 W. C. L, J. 565: In re G. B. P., 3rd A! R. U. S. C. C. 155. 315 138 WORKMEN'S COMPENSATION LAWS. dent; it was there with all the potentiality of destruction to the eyesight when this accident occurred, and if we assume that the disease was aggravated by the accident, that it developed more rapidly than would otherwise have been the case, still the disease or infection was not the result of the accident, and it is only re- sulting disease or infection which is provided for by the law. The evidence before the Commission is undisputed that this disease had resulted in 'an atrophy or degeneration of the optic nerve,' and that 'such a condition is in consequence of a specific constitu- tional infection and is permanent with a tendency toward pro- gression;' that the claimant had developed the symptoms of loco- motor ataxia, and that the atrophy of the optic nerve predated the injury, and the only inference from the testimony is that the claimant was so far advanced in the disease that it was only a matter of a comparatively short time when he must have reached the results which now prevail, though no accident had happened. There is some slight testimony to the effect that the disease might have been aggravated or accelerated by reason of the degeneration of the tissues, lessening the claimant's power of resistance; but this does not tend to bring the case within the letter or the spirit of the statute, for no one has ever suggested that the results of specific constitutional infection, which in the present case are conceded to be congenital syphilis, constituted a legitimate charge upon the industrial life of the state. ' ' 50 Where an employee has a cardiac lesion and) aggravates this, through the unusual strain of bending heavy bars, which causes a sudden dilatation of the heart, resulting in death, such death is accidental. 51 An employee having arterial sclerosis suffered par- alysis as a result of heat and over-exertion. This was held to be an accident. 52 An employee in lifting a can) of paint burst a blood vessel in his lungs and died. This vessel had burst before and healed over but might burst again. This was held to be an acci- 50. Borgstead v. Shults Bread Co., 180 App. Div. 229 V 167 N. Y. S. 647, 1 W. C. L. J. 669, 15 N. C. C. A. 639. 51. Uhl v. Guarantee Const. Co., 174 App. Div. 571, 161 N. Y. S. 659. 52. La Veck v, Parke, etc., Co.,, 190 Mich. 604, 157 N. W. 72, L. R. A. 1916 D, 1277. 316 PERSONAL INJURY OR DEATH BY ACCIDENT. 138 dental injury. 53 Where a fireman fell from an engine which caus- ed a hemorrhage of the brain accelerated by a pre-existing syphi- litic condition, the resultant death was held to be due to the accident." The claimant suffered an injury arising out of and in the course of her employment, which aggravated and accelerated a weak heart condition to the point of total incapacity for work. It ap- peared that she had this "weak heart condition" prior to her in- jury and prior to entering the service of this employer. Affirming an award, the court said in part: "It has been argued with force on behalf of the insurer that since the harm to the employee was not wholly the effect of the work but came in large part from the previous weakened condition of the employee's heart, hence, either there can be no award of compensation, or it should be restricted to that part of the injury which resulted directly from the work, and the part of the injury which flowed from the previous condition should be excluded. Even though the premise be sound, the conclusion does not follow. The act makes no pro- vision for any such analysis or apportionment. It protects the 'employee.' That word is defined in part 5, sec. 2, as including 'every person in the service of another under any contract of hire,' with exceptions not here pertinent. There is nothing said about the protection being confined to the healthy employee. The previous condition of health is of no consequence in determining the amount of relief to be afforded. It has no more to do with it than his lack of ordinary care or the employer's freedom from simple negligence. It is a most material circumstance to be con- sidered and weighed in ascertaining whether the injury resulted from the work or from disease. It is the injury arising out of the employment and not out of disease of the employee for which compensation is to be made. Yet it is the hazard of the employment acting upon the particular employee in his condition of health and not what that hazard would be if acting upon a healthy employee 53. Southwestern Surety Ins. Co. v. Owens, (Tex. Civ. App.), 198 8. W. 662, 1 W. C. L. J. 271. 54. IPeori* H. etc.. Co., v. Industrial Board, 279 111. 352. 118 N. B. 651. 15 N. C. C. A., 632. 317 138 WORKMEN'S COMPENSATION LAWS. or upon the average employee. The act makes no distinction be- tween wise or foolish, skilled or inexperienced, healthy or diseased employees. All who rightly are describable as employees come within the act. A high degree of discrimination must be exercised to determine whether the real cause of an injury is disease or the hazard of the employment. A disease which under any rational work is likely to progress so as finally to disable the employee, does not become a 'personal injury' under the act merely bo- cause it reaches the point of disablement while work for a sub- scriber is being pursued. It is only when there is a direct casual connection between the exertion of the employment and the in- jury that an award of compensation can be made. The substantial question is whether the diseased condition was the cause, or wheth- er the employment was a proximate contributing cause. In the former case, no award can be made; in the latter, it ought to be made. ' ' 55 Where deceased, who suffered an inguinal hernia while laying terra cotta window stills, weighing 75 or 80 pounds each, had a prior structural weakness irt the region where the injury oc- curred, compensation was properly awarded his widow. 56 Deceased was suffering from an advanced aneurism of the aorta, and while engaged in tightening a nut with a spanner th-} strain caused a rupture of the aneurism, resulting iii death. It wa held tha,t death resulted from personal injury by accident arising out of the employment, and compensation was awarded. Lord Loreburn, speaking for the House of Lords, said: ''This man died from the rupture of an aneurism, and 'the death was caused by a strain arising out of the ordinary work of the de- ceased operating upon a condition of body which was such as to render the strain fatal.' Again, 'the aneurism was in such an advanced condition that it might have burst while the man was asleep, and very slight exertion, or strain, would have been suffi- cient to bring about a rupture.' * * I do not think wo 55. In re Madden, 222 Mass. 487,, 111 N. E. 379, L. R. A. 1916 D 1000; In re Edward Johnston, 3rd A. R. U. S. C. C. 157; In re, James Cronin, 3rd. A. R. U. S. C. C. 157; In re Chas. E. Young, 3rd A. R. U. S. C. C. 158; In re Felix W. Mitz, 3rd A. R. U. S. C. C. 159. 56. Hurley v. Selden-Brech Const Co., 193 Mich. 197, 159 N. W. 311. 318 PERSONAL INJURY OR DKVTIl BY ACCIDENT. 138 should attach any importance to the fact that then- was 11.. Mraiu or exertion out of the ordinary. If the degree of exertion be- yond what is usual had to be considered in these cases, there must be some standard of exertion, varying in every traldc. Nor do I think we should attach any importance to the fact that this man's health was as described. Tf the state of his health had) to be 1 considered, there must be some standard of health, varying, I suppose, with men of different ages. An accident arises out of thet employment when, the required exertion produc- ing the accident is too great for the man undertaking the work : whatever the degree of exertion on the condition of health. It may be said, and was said, that if the Act admits of a claim in the present case, every ono whose disease kills him- while he is at work will be entitled to compensation. I do not think so, and for thi3 reason. It may be that the work has not, as a matter of substance, contributed to the accident, though in fact the accident happened while he was working. In each case the arbitrator ought to consider whether, in substance, as far as he can judge on such a matter, the accident came from the disease alone, so* that whatever the inaii had been doing it would probably have come all the same, or whether the employment contributed to it. In other words, did he did from the disease alone or from the disease and employment taken together? Looking at it broadly, I say, and free from over nice conjectures : "Was it the disease that did it or did the work he was doing help in any material degree?" 57 A fireman, after having been for some time at work shoveling coal and raking fires in the stokehold of a ship, had an apoplectic stroke. The medical evidence tended to prove that the man was in a diseased condition, and that such a stroke would be likely to be brought on -by such exertion. The trial judge drew the in- ference that the injury was caused by accident within the mean- ing of tiie compensation act. On appeal it was held that there was evidence to support the inference. 58 57. Clover, Clayton & Co. v. Hughes, (1910), A. C. 242. 26 T. L. Rep. 359, 3 B. W. C. C. 275, 79 L. J. K. B. 470. 58. Broforst v. Blomfleld, 6 B. W. C. C. 613. 319 139 WORKMEN'S COMPENSATION LAWS. "The weakniepjs of the deceased which predisposed him to this form of attack is immaterial. The fact that a man who has died from a heat-stroke was by physical debility more likely than other? so to suffer can have nothing to do with the question whether what befell him is to be regarded as an accident or not. ' ' 59 139. Aneurism. Decedent, while in defendant's employ, wass at times required to put forth considerable physical effort causing, on one of these occasions, due to predisposing causes, an aneurism. It was held to be an accident arising out of and in the course of the employment. 60 Where an aneurism war, found to be dnie to a continued strain of the employee's work, it was held not to be an accident arising out of the employment. 61 Where an employee died from the rupture of an aneurism, six days after being thrown from a wagon and run over, it was held that the death was due to the accident 62 Where a workman had an aneurism of the aorta,, which was so far advanced that it was apt \to burst at any lime, and it did burst in the courste of his employment, at a, time when he was not exerting extraordinary strain, it was held to be a compensable accident under the English act. 63 Where a post mortem disclosed an aneurism of the aorta, and it was shown that deceased had strained himself three days before by heavy lifting and complained thereof to the time of death, it was held that the death was due to the accidental strain. 04 A blow on the left groin was held to have been the proximate cause of an aneurism. 65 59. Ismay, Imrie & Co. v. Williamson. 99 L. T. 595, (1908), A. C. 437, 24. T. L. Rep. 8&ll, 1 B. W. C. C. 232, 52 Sol. Jo. 713, 42 Ir. L. A. 213. 60. Haskell & Barker Car Co. v. Brown, 64 Ind. App. , 117 N. E. 555, 15. N. C. C. A. 641; In re Geo. Hilderbrand, 3rd A. R. U. S. C. C. 139. 61. Patoa y. William Dixon, 6 B. W. C. C. 882. 62. Martin v. City of Sacramento, 2 Cal. I. A. C. 692; Winter v. Atkinson Frizelle Co. 37 N. J. L. J. 195, 11 N. C. C. A. 180. 63. Clover Clayton & Co. v. Hughes, 3 B. W. C. C. 275 H. L. 64. Draper v. Lore & Co., 1 Cal. I. A. C. 132. 65. McKenzie v., Pullman Co., 2 Cal. I. A. C. 984. 320 PERSONAL INJURY OR DEATH BY ACCIDENT. 140 "It was found, on the post mortem, on undisputed evidence, that the death was due to rupture of an aneurism. It also ap- pears that this is a disease which does not generally, and in this particular case did not, arise suddenly; it was probably of long standing. The artery was in a bad condition, but, as always happens, the moment came when the walls of the artery broke, and the blood came out, and death followed almost immediately. Now what is the necessary result of those facts, all of which I think are beyond contest and beyond dispute? In the first place, it seems to me that, within the definition given by the House of Lords on more than one occasion, of an accident, this was clearly an accident, and I cannot bring myself to doubt that it was an accident within the meaning of Lord Macnaghten's oft quoted and oft approved judgment in Fenton v. Thorley & Co., Ltd. (1903), A. C. 443 ; 5 W. C, C. 1, nor do I think there is any doubt that it was also an accident within the meaning of the judgment of the majority of the court in Clover, Clayton & Co., Ltd., V. Hughes (1910), A. C. 242; 3 B. W. C. C. 275. If it was an acci- dent it is said that it still may not be an accident arising out of the employment. It may be that he was not doing anything at the time, or shortly before the time of death, which in any way could contribute to it or accelerate the fatal end. The artery must have been broken, the aneurism must have been ruptured, at some time, and in the natural course of events it would have been long distant. But we have, as it seems to me, to deal with the rupture of the aneurism at the particular time at which it was ruptured." 88 140. Anthrax. Wlu-ro an employee contracted anthrax from handling hides, the germs entering a fissure on the back of his hand, caused by a previous handling of hides, the disability caused by the anthrax was held to be due to an accident. 87 Where anthrax bacilli alighted in the eye of a wool sorter, it was considered the same as 'if a spark from an anvil had struck 66. McArdle v 'Swansea Harbor Trust. 8 B. W. C. C. 489, 11 N. C. C. A. 175. 87. Heirs v. Hull &'Co., 178 App. Div. 350, 164 N. Y. 8. 77; Mo- cauley v. Imperial Wollen Co., 261 Pa. 312, 104 Atl. 617, 2 W. C. L. J. 932; Henry v. G. Levor'ft Co., 8 N. Y. St. Dep. Rep. 388. 321 W. C. 21 140 WORKMEN'S COMPENSATION LAWS. the eye and was held to be an accident arising out of the employ- ment. 68 Where a gamekeeper handled an animal which a few days after- ward died of anthrax and within a few days from the time of handling the animal, the gamekeeper died of the same disease, it was held not proven that there was an accident. 69 "When, however, death results from germ infection, to bring a case of this character within the act of 1915, the disease in ques- tion must be a sudden development from some such abrupt vio- lence to the physical structure of the body as already indicated, and not the mere result of gradual development from long-con- tinued exposure to natural dangers incident to the employment of the deceased person, as in cases of occupational diseases, the risks of which are voluntarily assumed. Here the anthrax germ, a distinguishable entity, came into actual contact with the de- ceased, thus gaining an entrance into his body, and his neck began to swell and discolor; therefore the complaint from which McCauley died can be traced to a certain time when there was a sudden or violent change in the condition of the physical struc- ture of his body, just &s though a serpent, concealed in the materi- al upon which he was working had unexpectedly and suddenly bitten him. See Heirs v. Hull & Co., 178 App. Div. 350, 352, 164 N. Y. Supp. 767. " 70 Where there was no evidence as to whether hides such as those handled bv deceased have anthrax bacteria, or as to the manner \* in which anthrax may be transmitted to men, it was error for the Industrial Commission to presume that an employee, who received a cut on his neck while not engaged in his duties, and died from anthrax while employed in a tannery, had received the injury in the course of his employment. 71 68. Higgens v.. Campbell, 1 K. B. 328. 69. Sherwood v. Johnson, 5 B. W. C. C. 686. 70. McCauley v. Imperial Wollen Co. et al,. 261 Pa. 312, 104 Atl. 617, 17 N. C.'C. A, 864. 71. Eldridge v. Endicott. Johnson & Co.^ N. Y, App., (1920), 126 N. E. 254, 5 W. C.'L. J. 716. 322 i'KKSONAL INJURY OB DEATH BY ACCIDENT. 141 141. Appendicitis. In a case where a workman fell and in- jured his ankle, and after remaining in bed for a month, died of appendicitis peritonitis, and there was a conflict in the medical testimony as to whether the disease was caused by the accident, it was held that there was sufficient evidence that his death resulted from the accidental injury. 7 - It was held that appendicitis result ing from a strain or heavy Mow was an industrial injury. 73 Where a workman claimed that appendicitis resulted from a fall it was held that he had not proved that the injury arose out of the employment, and compensation was denied. 74 In an Ohio case, the commission said: "The question as to wheth- er an injury may cause appendicitis to develop is largely a medical question. It is the opinion of the physicians who attended the de- cedent and who operated upon him for appendicitis that the in- jury was responsible for the disease from which he died. Our own Medical Department is just as positive that the death of decedent was not caused by the injury and it is stated that trauma has never been recognized by the medical profession as a possible cause for appendicitis. After giving all of the evidence submitted to us care- ful consideration, we conclude that the proof is not sufficient to establish the fact that appendicitis was caused by the injury. That th" injury occurred and was followed more than a year thereafter by appendicitis does not prove that the one was the cause of the other. As nothing 1 of a substantial nature has been offered in sup- port of the theory that there is any causal connection between the two. we conclude that the proximate cause of the death of deceased was appendicitis. ' ' 72. Enman v. Dalziel & Co., 6 B. W. C. C. 900 Ct. of Sess., 50 Scot. L. R. 143. 73. McDonough v. Scott Company, 3 Cal. I. A. C. 225; Davis v.Mc- Donald & Kahn, 3 Cal. I. A. C. 84; Lindquest v. Holler, 178 App. Div. 3-lff, 164 N. Y. S. 906; Stolte v. N. Y. State Sewer Pipe Co, 179 App. Div. 949. 165 X. Y. S. 114. 74. Dube v. Clayton Bros. Inc., 1 Conn. Comp. Dec. 441. 75. In re Gardner, 4 Ohio, 1. Comm. 21; In re Geo. Bosley. 3rd A. K. U. S. C. C. 106; In re Earl W. Graham, 2nd A. R. U. S. C. C. 144. 323 142 WORKMEN'S COMPENSATION LAWS. 142. Apoplexy. An employee, while assisting another to lift a 200 pound barrel, was seized with a stroke of apoplexy, by rea- son of the unusual strain occasioned by the lifting. This was held to be a compensable accident. 76 "It is insisted that no 'unexpected or unforeseen event, happen- ing suddenly and violently ' occurred ; that sickness arising from the placing of his body by plaintiff against the beams and surging back and forwards could not be said to be 'an unforeseen event;' and that it did not happen suddenly and violently except as it was oro- duced by plaintiff himself. It is said that the language ' was clearly meant to limit recoveries to accident such as the breaking of ma- chinery, or the unexpected cutting or wounding employee's person by some breaking or falling or exploding of apparatus, machinery or tools.' To hold this would unduly limit the meaning of Miis clause (Neb. Kev. St. 1913, 3693). The unforeseen event was the straining, weakening of lesion of the blood vessels of the brain or stomach, and this was an unforeseen event happening suddenly. It is also said that no 'objective symptoms' of an injury appeared at the time,, and that these elements are essential. We agree witn this argument so far that the accident must produce 'at the time objective symptoms of an injury, ' but the difficulty is as to what constitutes objective symptoms. Defendant's idea is that by ob- jective symptoms are meant symptoms of an injury which can be seen, or ascertained by touch. We are of the opinion that the ex- pression has a wider meaning, and that symptoms of pain and an- guish, such as weakness, pallor, faintness, sickness, nausea, expres- sions of pain clearly voluntary, or any other symptoms indicating a deleterious change in the bodily condition may constitute ob- jective symptoms as required by the statute. 77 It was held that where a stroke of apoplexy which may or may not have been brought on by a strain or over exertion, is not an in- 76. Fowler v. Risedorph Bottling et. al., 175 N. Y. App. Div. 224, 161 N. Y. Supp. 535, 14 N. C. C. A. 533; In re John Nymark, 2nd A. R. U. S. C. C. 94. 77. Manning v. Pomerene, 101 Neb. ,127, 162 N. W. 492. 324 PERSONAL INJURY OR DEATH BY ACCIDENT. 142 jury suffered by accident, where there is no evidence that the work subjected the workman to any serious strain. 78 Where a ship 's stoker was found in a condition of heat apoplexy near his work, it was held not to have been proved that his work caused his condition and that therefore it was not a compensable accident. 79 Where there has been no accidental injury which aggravates or brings on apoplexy, it is not accidental. 80 It was held that there was not sufficient proof of accident, where an injured workman died from a stroke of apoplexy a fortnight after he returned to work. 81 A teamster accidentally fell from his wagon, receiving injuries to the left elbow and hip. He was taken to his home and put to bed without losing consciousness, but three hours after the accident be suffered an apoplectic stroke, resulting in paralysis, for which he applied for compensation. All the experts but one testified there was no connection between the fall and the stroke. Compensation was allowed. 82 In the opinion of the attending physician a thrombus or an em- bolism may have caused the death of a laborer who died suddenly in bed five or six months after an accident that had seriously in- jured his head and body. The Appellate Division affirmed an award to his family, unanimously and without opinion. 83 78. Barnabas v. Bersham Colliery Co., 102 L. T. R. 621, 3 B. W. C. C. 216, 55 Sol. J. 63, 4 B. W. C. C. 119; In re Thomas Cunningham. 3rd A. R. U. S. C. C. 115; Lesko v. Lehigh Valley Coal Co., Pa. (1921), 112 Atl. 768. 79. In re John M. Cahill, 3rd A. R. U. S. C. C. 105, Olson v. Owners of S. S. "DorsetV 6 B. W. C. C. 658; In re Wm. Walker, 3rd. A. R. U. S. C. C. 115. 80. Ledoux v. Employer's Liability Assur. Corp., 2 Mass. I. A. Bd. 493. 81. Warnock v, Glasgow Iron & Steel Co. Ltd., 6 F., 474 Ct. of Sess. 82. Selaya v. Ruthven & Cerrano, 5 Cal. I. A. C. 238; State ex rel. Geo. D. Taylor & Sons v. District Court of Ramsey Co, Minn. (1921), 179 N. W. 217, 6 W. C. L. J. 698. 83. Judice v. Degnon. Constructing Co.. 181 N. Y. App. Div. 909; 167 N. Y.Q. 1107. Casey v. Borden's Condensed Milk Co., 182 N. Y. App. Div. 907, 168 N. Y. S. 1104. 326 143 WORKMEN'S COMPENSATION LAWS. 143. Artery Rupture. Deceased was always regarded as a strong healthy man and worked regularly, except occasionally when he indulged in liquor to excess. While pushing a mine ear up grade he complained of his side, and died three hours there- after of a rupture of the .aorta. A diseased condition existed at the place of rupture as shown by its unnatural thinness. It was held to be a personal injury by accident, as it hastened to a fatal ter- mination an ailment ; and this even under the rule requiring that a definite occurrence must be indentified in order that a certain injury may be said to be accidental. 84 A laborer became ill while at work and died the same day. An autopsy disclosed a rupture of the aortic artery. Compensation was claimed on the theory that the aneurism was caused or aggravated by an injury which the deceased had sustained five days previous. It was held that the claimant did not prove this, and that indications were that the aneurism was due to disease rather than injury. 85 In connection with this case it must be remembered that the word "accident" is not used in the Massachusetts Act. A quarry laborer using a sixteen pound sledge suffered a pul- monary hemorrhage from which he died before medical aid could reach him. "The evidence warranted a finding that the physical structure of the man gave way under the stress of his usual labor. He certainly did not intend to kill himself by breaking rock and loading cars at a price per car. He did not know or in any event was inattentive to the limited power of his blood vessels to resist blood pressure aggravated by vigorous muscular effort, out of this ignorance or miscalcjulationi of forces came misadventure, and the term accident applies to what happened to him." 86 "Where an employee died in the course of his employment from a rupture of the aorta, caused by "an extra effort in vomiting," 84. Indian Creek Coal & Mining Co. v. Calvert, (Ind. App<) 119 N. E. 519 (1918), 2 W. C. L. J. 230; Southwestern Surety Ins. Co. v. Owens, Tex. Civ. App. , 198 S. W. 662, 1 W. C. L. J. 271. 85. In r Knight, 231 Mass. 142, 120 N. B. 395 (1918). 86. Gilliland et al., v. Ash Grove Lime & P. C. Co., 104 Kan. 771, 180 Pac. 793, 4 W. C. L. J. 187. 326 I'KICSONAL INJURY OR DEATH BY ACCIDENT. 143 brought on by conditions arising in the employment, a claimant, irrespective of anterior causes, or pre-existing condition, was en- titled to compensation, as the rupture itself occurring from such effort would constitute accidental "violence to the physical struc- ture of the body." 87 An employee while working in a lumber yard moved quickly in order to avoid being struck by a fall, and in doing so made a sud- den backward movement of his head which caused him considerable pain. The following day paralysis resulted, and he died later. An autopsy revealed that the d.-ath was due to glioma or brain tumor which is not of accidental origin. Therefore the contention that death was due to a rupture of a cerebral blood vessel was over- ruled. 88 ' ' In the instant case all the characteristics of an accident were present. The occurrence was sudden, unexpected, and undesigned by the workman. The circumstances were clearly such that the commission was justified in finding that the hemorrhage was due to blood pressure intensified by vigorous muscular exertion. Re- lating the hemorrhage to physical exertion, rupture of the aorta by force from within was as distinctly traumatic as if the canal had been severed by violent application of a sharp instrument from without. There was no direct evidence of extraordinary exertion suddenly displayed. When last observed before the hem- orrhage, the deceased was working in the manner habitual to his employment. The fact remains however, that an extraordinary and nn foreseen thing suddenly and unpremeditatedly occurred, and the presence of all essential attributes of accident cannot be gain- said. There was ample evidence in the record to justify the find- ing of the Industrial Commission that the deceased came to his death by accident, and the circuit court therefore properly con- firmed the award. Peoria Terminal Co. v. Industrial Board, 279 111. 352, 116 N. E. 651; Western Electric Co. v. Industrial Com., 87. Clark v. Lehigh Valley Coal Co., 264 Pa. 529, 107 All. 858, 4 W. C. L. J. 747. 88. Babo v. Blinn Lumber Co., 1 Cal. I. A. C. Dec. (1914) 45.7 N. C. C. A. 651; Barnabas v. Bersham Colliery Co., 103 L. T. 513, 55 Sol. J. 63, 4 B W. C. C. 119. 7 N. C. C. A. 652. 327 144 WORKMEN'S COMPENSATION LAWS. 285 111. 279, 120 N. E. 774. In Schroetke v. Jackson-Church Co., 193 Mich. 616, 160 N. W.. 383, L. -R. A. 1917D, 64. " 89 144. Arterio-Sclerosis. It was held that where the evidence as to whether an employee's disability arose out of an injury he had sustained was conflicting, but there was sufficient evidence to sustain the finding of the district court that it did; the finding was not disturbed on appeal, although there was testimony by two physicians that the employee's condition was the result of progressive arterio-sclerosis. 90 "Either the alleged heat prostration caused the cerebral hem- orrhage or it was the result of hardening of the arteries, and may have been superinduced by the heat prostration, we cannot say that either of said propositions has been established by a pre- ponderance of the evidence. If an inference favorable to the applicant can only be arrived at by guess, the applicant fails." 91 Compensation was denied on the ground that the workman's death may have been due to arterio-sclerosis existing prior to the injury. 92 But where an accident aggravated a pre-existing condi- tion of multiple sclerosis compensation was allowed. 93 "While the evidence showed that the employee at the time and for two years prior to the accident had been suffering from arterio-sclerosis, it was held that the strain upon the arteries caused by over exertion and excessive heat resulted in the rupture of a blood vessel in the brain, causing paralysis. 94 Where a workman suffered from vertigo after an accident, it was held to be due- to a pre-existing condition of arterio-sclerosis, and not to the accident. 95 89. E. Baggot Co. v. Indus Comm., 111. , 125 N. E. 254, 5 W. C. L. J. 202. 90. Manning v. Pomerene, 101 Neb. 127, 162 N. W. 492. 91. Stinnette v. Gillispie Co, Second Rep. Ky. Leading Dec. p. 5. 92. Tucillo v. Ward Baking Co., ' 180 App. Div. 302, 167 N. Y. Supp. 666, 15 N. C. C. A. 638. 93. Blackburn v. Coffeyville Vitrified Brick & Tile Co., Kan. (1920), 193 Pac. 351, 7 W. C. L. J. 58. 94. La Veck v. Park Davis & Co., 190 Mich. 604, 157 N. W. 72, L. R. A. 1916 1D. 1277. 95. Carter v. Llewellyn Iron Wks., 2 Cal. I. A. C. D. 971. 328 PERSONAL INJURY OR DEATH BY ACCIDENT. 148 Where it does not appear that a cerebral hemorrhage is due to an unusual strain or effort in the course of the employment but rather to pre-existing arterio-sclerosis, compensation will be de- nied. 9 " Compensation was awarded where an accident was followed by arterio-sclerosis and other disabling conditions. 87 Where one physician testified that dilation of the heart and arterio-sclerosis was caused by the accident, and the expert ap- pointed by the commission was unable to state whether it was or not, compensation was awarded." 145. Artificial Limb Broken. The breaking of an artificial limb is not an accident within the meaning of the compensation act," The repair of an artificial limb which was furnished to the em- ployee, by the commission, is a valid claim under the Federal Act. 1 The California Act was amended in 1921 to include arti- ficial members 3 [4]. 146. Artificial Teeth Broken. It has been held that the breaki'ng of artificial teeth firmly attached to natural roots is a personal injury. 2 147. Artificial Eye Broken. The breaking of an artificial eye is not a compensable accident, 3 neither is the breaking of an eyeglass, as a result of a fall, a personal injury. 4 148. Asphyxiation. Claimant's decedent was discovered in an unconscious condition near a stopcock from which gas was 96. In re Mrs. Alfred Haries. Vol. 1. No. 7, Bui Ohio I. C. 101. 97. Rouda & Spick v. Heenan, 3 f'al. I. A. C. D. 36. 98. Welch v. C. F. Weber ft Co., 2 Cal. I. A. C. 693; Fowler v. Risedorph Bottling Co., 175 App. Div. 224, 161 N. Y. Supp. 535. 99. Re Eulogio Rodriguez Op. Sol. Dep. C. & L... p. 189. , 1. In re Alonzo N. Babcock, 2nd A. R. U. 8. C . C. 234. 2. Robinson v. Glendale Hardware Co., 3 Cal. I. A. C. 376. 3. In re Christian W. Honold 2nd A. R. U. 8. C. C. ZS2. 4. In re Sadie M. Miller, 3rd A. R. U. S. C. C. 171. 329 149 WORKMEN'S COMPENSATION LAWS. escaping. It was his duty to open the stopcock daily. In af- firming an award in claimant's 1 favor the court said : "If the owner of an automobile was found unconscious in his closed garage, with the engine to his car running, would not one familiar with like situations at once say he had been overcome by inhaling the exhaust from the engine? The inferences to be drawn from the circumstances in the instant case are of like kind to that drawn in the suppositions case, though perhaps differing in degree." 5 Where a workman wasi found dead from asphyxiation in a room with doors locked and gas cock open, it was held not to have been proved that the death was due to an accident that arose out of the employment. 6 Where two employees were found dead from asphyxiation in a wine tank, the commission found that the evidence was in- sufficient to establish wilful misconduct in the violation of a rule and awarded compensation. 7 Death by asphyxiation while working in a mine is an accident within the meaning of the compensation act. 8 149. Assaults. The accidental shooting of a salesman, who had accompanied a local dealer on an auto trip, by a posse, who had mistaken the occupants for auto thieves was held to be an accidental injury arising out of the employment. The court said: "The finding that the injury to Wold was accidental must be sustained, for there 1 is no evidence that any of the shooters intended to hit the occupants of the car. At most they purposed to puncture the tires so as to recover the car or apprehend the supposed criminals in charge of it.*' 9 ( ' L ' : |- ! 5. Holnagle v. Lansing Fuel & Gas Co., 200 Mich. 132, 166 N. W. 843. 6. Gray v. Sopwith Aviation Co., 119 L. T. R. 194. 7. United States 'F. & G. Co. v. Industrial Ace. Com. of Cal. 163 Pac. 1013, 15 N. C. C A. 150; Coady v. Igo. 91 Conn. 54, 98 Atl. 328, 15 N. C. C. A. 457. 8. Larr v. Hecla Coal & Coke C., Pa. (1920), 109 Atl. 224, 5 V\. C. L. J. 904. 9. Wold v. Chevrolet Motor Co., Minn. (1920), 179 N. W 219, 6 W. C. L. J. 699, 330 PERSONAL INJURY OR DEATH BY ACCIDENT. 152 Injury resulting to an employee while at work in the master's business, when assaulted by a fellow employee is "an accidental personal injury arising out of the employment" within the mean- ing of that term as used in the Oklahoma Compensation Act. 10 150. Asthma. Where an employee suffered from asthma and heart trouble as a result of breathing dust which he stirred up in his work, it was held that the disability was not due to an accident and compensation was denied. 11 151. Bends. Where an employee sustained "Bends" which is in the nature of a rupture of internal organs, due to the release of the compressed air under which the employee was working, it was held to be an accidental injury and compensable. 1 ' 152. Blood Poison. "The evidence is quite satisfactory that the blood poisoning and the ensuing death were the result of the scratch. The medical testimony is to that effect and the sequence of events leaves very little doubt on that point. That the scratch was received while he was engaged in his employment is not so clear. There was no direct evidence that the scratch was so received. We think, however, the evidence is sufficient. The fact that deceased had no scratch when he left home in the morning and had one when he came home from work at night, that he must have} come home immediately, for he was home within half an hour of the time he quit work, that the scratch had blood upon it which had hardened, indicating that the scratch had been received earlier than the time he quit work, that it was such a scratch as he was not likely to receive on a trip from his work to his home, and such a scratch as he might well have received while at work, these facts taken in connection with the letter above quoted, which is of some force as an admission, were such that the court might infer that the scratch was received 10. Stasmos v. State Indus. Comm., Okla. (1921). 195 Pac. 762. 11. Wetherele v. American Hardware Corp., 1 Conn. Com p. Dec. 367. 12. Re Wm. Murray, Op. Sol. Dep. C. & L.., p. 201. 331 152 WORKMEN'S COMPENSATION LAWS. while deceased was in the course of his usual work and that it arose out of it." 13 "Where blood poisoning results from accidental injury it is com- pensable. 14 "We perceive no merit in the claim that this disability was not proximately caused by the injury and abrasion of the skin. Such results do ensue from such abrasions,and they are brought about by the operation of what are ordinarily considered natural forces ; that is, by the intervention of infectious germs usually, or at least frequently, present in the air or on the surface of substances with which any person may come in contract, and which are in- visible to the eye and imperceptible to the senses. ' ' 15 Where an employee was injured, and, by reason of lying in bed for a long time, developed a bed sore from which blood poison- ing developed and caused his death, it was held that the accident and not the blood poisoning was the proximate cause of death. 16 An employee engaged in a boxing match and aggravated an old wound, received in the course of employment, which had practically healed. It was held that the blood poisoning which resulted from the aggravation, and caused a permanent disability, was the proximate cause of the permanent disability, and compensation therefor was denied. 17 While a miner was at work hewing coal a piece of coal worked its way into his knee, causing blood poisoning. This was held to be an injury resulting from accident. 18 A cake of ice broke loose while being hauled up a shute and struck the employee on the leg breaking it. Two weeks thereafter while the employee was in the hospital, blood poisoning set in, 13. Rackman v. Albert Dickson Co., 139 Minn. 30, 165 N. W. 478, 1 W. C. L. J. 422. 14. Fleet v. Johnson, 6 B. W. C. C. 60; Burns case, 218 Mass. 8, 105 N. E. 601, 5 N. C. C. A. 635; White v. Ford Motor Co., W. C. & Ins. Rep. 25 (1918), 17 N. C. C. A. 93. 15., Great Western Power Co. v. Pillsbury et al., 171 Cal. 69, 151 Pac. 1136, L. R. A. 1916 A. 281, 11 N. C. C. A. 493. See Infection. 16. Burns Case 218 Mass. 8, 105 N. E. 601. 117. Kill v. Industrial Commission, 160 Wis. 549, 152 N. W. 148. 18. Thompson v. Ashmgton Coal Co., 84 L. T. N. S. 412, 17 Times L. R. 345. 332 PERSONAL INJURY OR DEATH BY ACCIDENT. 153 causing death. The commission said: "The injury was not the sole and proximate cause of death, but was the exciting and contributory cause, and there is a direct causal connection be- tween the injury and the death." 1 * Where an employee was troubled with pimples, and upon his request a fellow employee opened a pimple in an unsanitary manner, and blood- poison resulted it can not be said that such an injury resulted from an accident. 20 153. Blood Vessel Rupture. A workman stood in a crouch- ing position using a 20 pound sledge for an hour and a half, at the conclusion of which he accidentally fell, his head striking a piece of granite, cutting a large gash over his eye. The doctor testified that the severe strain and falling on the rock caused cerebral hemorrhage. It was held to be an accident "arising out of and in the course of the employment." 21 A traveling salesman ran to catch a train, after which he suffered from dizziness and paralysis, caused by a breaking of a blood vessel in his brain. This was held to be a compensable accident. 22 An employee, while lifting a heavy weight, suffered a rupture to a blood vessel, and the blood filtered through to the abdominal cavity, causing death. This was held to be a compensable injury." Where a collier, while doing heavy work in building a pack, was suddenly seized with apoplexy and died, there was evidence that his arteries were greatly degenerated and they might have 19. Coffee v. Bordens Condensed Milk Co., 1 Conn. Comp. Dec. 167. 20. Rombellow v. Marin County Milk Producers, 1 Cal. I. A. C. (Part 2), 87. Note: For further cases, see same title under the chapter on, "Arising Out Of,'' also "Infection,'' "Abrasions" and "Friction Injuriee." See 11 N. C. C. A. 493. 21. State v. District Court of Sterna Co., 137 Minn. 318, 163 N. W. 667. 14 N. C. C. A. 627. 22. Crosby v. Thorp Hawley Co. et al., 206 Mich. 250, 172 N, W. 635. 4 W. C. L. J. 245 (1919); Schroethe v. Jackson-Church Co.. 193 Mich. 616. 160 N. W. 383; Clark v. Lehigh Valley Coal Co., Pa., 107 Atl. 858, 4 W. C. L. J. 747. 23. Greenberg v New Leather Goods Co., (1916) 3 Cal. I. A. C. 328. 333 154 WORKMEN'S COMPENSATION LAWS. ruptured with or without a strain. The court held that ; as the evidence was equally consistent with an accident having happened or not happened, the burden of proving an accident had not been discharged. 24 "Where an employee was cranking a coal delivery wagon, and the strain from turning the crank caused a small blood vessel to break in the pial membrane of the brain, it was held to be an accidental injury. 25 Where an employe, whose duties required great muscular strain and exertion, burst a blood vessel, causing death, it was held that the death was due to an accident. 26 Paralysis resulting from rupture of a blood vessel, due to heat and over exertion by an employee having arterial sclerosis, is an accident, within the Michigan Act. 27 "Where lifting a can of paint caused a blood vessel in a servant's lungs to burst, there was an accidental injury, and it is immaterial that It had burst before, but had healed over, and might burst again. 28 "Where an employee was required to lift a piano over the step of a stairway the court held that the unusual lifting and straining, exertion and apprehension, by reason of the lack of experienced help, constituted an accident, and a blood vessel rupture resulting therefrom was compensable. 29 154. Bolls. Where a dishwasher suffered from boils, but there was no evidence of cuts, scratches, or bruises, or other acci- dent causing such disability, it was held not to be compensable.'' 24. Barnabas v. Bersham Colliery Co., 103 L. T. 513, 55 Sol. J, 63, 4 B. W. C. C. 119', 7 N. C. C. A. 651. 25. Farrell v. Casualty Co. of America, 2 Mass. Wkm. C. C. 423; Patrick v. J. B. Ham Co., Me, (1921), 111 Atl. 912. 26. State v. District , Court, 137 Minn. 30, 162 N. W. 678. 27. La Veck v. Park Davis & Co,, 190 Mich. 604, 157 N. W. 72, L. R. A. 1916D, 1277, 14 N. C. C. A. 141. 28. Southwestern Surety Ins. Co. v. Owens, (Tex. Civ. APp.), 198 S. W. 662, 1 W. C. L. J. 271. 29. St. Clair v. A. H. Meyer Music House, Mich. (1920), 178 N. W. 705, 6 W. C. L. J. 540. 30. Rolph v. Morgan, 2 Cal. I. A. C. 543, 11 N. C. C. A. 500. 334 PERSONAL INJURY OR DEATH BY ACCIM 156 Where death resulted from nn'iiiniritis caused by a series of boils, which developed some montlis after the amputation of a toe, made necessary as a result of an industrial accident, it was held that the accident causing the loss of the toe was not the proximate cause of the death, and compensation was denied; ' 155. Brass Poisoning. Brass poisoning is a compensable injury under the Federal Act when contracted while in the per- formance of the employee's duties. 82 156. Brights Disease. Where a passenger, who had been suffering from chronic B rights disease and a valvular disease of the heart, dropped dead about twenty hours after the derailment of a car on which he had been riding, it was held to be a question for the jury as to whether the accident was the cause of the death. 33 Where plaintiff fell while carrying a package of mirrors which fell on him, the court held that the evidence showed with at least sufficient probability that Brights disease resulted from the injuries to render it admissiable for the consideration of the jury. Judgment for plaintiff was affirmed. 34 Where an employee was injured by a fall, and five days later a condition of acute Brights disease developed 1 , but there was no evidence of physical injuries to the kidneys, and the medical testimony was to the effect that Brights disease is probably never of traumatic origin, compensation was denied." Where an employee suffered a strain while pulling a bale of bur- lap and later became incapacitated for work because of a condition of Brights disease, it was held there was no connection between the strain and the disease, and compensation was denied. 88 Where an employee's foot became infected from a blister, caused by the rubbing of boots furnished by the employer, and the medical 31. Stephens v. Clarke, 2 Cal. I. A. C. 135, 11 N. C. C. A. 715. 32. In re Robert E. Hanna, 2nd A. R. U. S. C. C. 152. 33. Jones v. Public Service Ry. Co., 86 N. J. L. 646, 92 All. 397. 34. Houston & T. C. R. Co. v. Gerald, 60 Tex. Civ. App. 151, 128 8. W. 166, 15 N. C. C. A. 550. 35. Husvisk v. Simms, 1 Cal. I. A. C. 266. 36. Lima v. Aetna Life Insur. Co. 2 Mass. Wk. Comp Cases, MOO 335 158 WORKMEN'S COMPENSATION LAWS. testimony was to the effect that the injury and infection of the heel had poisoned the blood stream and caused Brights disease, the disease was incidental to the injury, and the chain of cau- sation was complete from injury to death. 37 157. Bronchitis. Where acute bronchitis and lead poison- ing was contracted by an employee as a result of the inhalation of gas fumes from an oxyaeetylene burning machine, this was held to be a personal injury under the Federal Act. But it must be borne in mind that under that act the injury need not be caused by accident. 38 Where a workman suffered an injury from whose immediate effects he recovered, but which left him in such weakened condition that he contracted influenza and died of bronchitis thirteen months after the accident, it was held that the death resulted from the accident. 39 Where an employee was injured by a fall and later contracted bronchitis and intestinal tuberculosis it was held that there was no causal connection. between the accidental injury and the disease and compensation was denied. 40 , 158. Burns. Compensation was allowed for burns received in the course of the employee's employment. 41 .A stenographer, employed by a corporation on the fourth floor of a building was burned to death when a fire, starting on one of the lower floors cut off her means of escape. Compensation was awarded for accidental death arising out of and in the course of the employment. 42 Where a workman employed as a molder received some slight burns on his arm, and ten days later erysipelas developed at the 37. Wheadon v. Red River Lumber Co., 1 Cal. I. A. C. 640. 3j8. In re Arato Op. Sal. Dep. of L. 264; In re Geo. J. Endres, 3rd A. R. U. S. C. C. 112. 39. Thoburn v. Bedlington Coal Co., 5 B. W. C. C. 128. 40. Swartz v. Casualty Co. of America, 2 Mass. I. A. Bd, 728. 41. Revita v. Royal Indemnity Co., 2 Mass. W. C. C, 352; Keane v. Employer's Liability Assur. Corp. 1 Mass. W. C. C. 193- 42. Newark Hair, etc., Co. v. Fieldman, 89 N. J. L. 504, 99 Atl. 602. 336 PERSONAL INJURY OR DEATH BY ACCIDENT. 159 site of the injuries and caused death, the death was held accidental and compensable. 48 "Where a baker sustained burns to his hands and arms as a result of an explosion of natural gas, which was due to the negli- gence of a fireman of the bakery oven, his injuries resulted from an accident within the meaning of the workmen's Compensation Act. 44 159. Cancer. Applicant, while engaged as a workman, fell. He made claim for compensation for disability occasioned by sarcoma or cancer on his left clavicle which he contended was the result of the fall. Applicant, his wife, and other witnesses testified to the presence, three or four hours after the accident, of a lump on the clavicle at the point where, at the time of the hearing, nearly all of the experts testified there was a sarcoma An x-ray picture, taken of the clavicle three days after the fall, showed it to be in normal condition, though the physician testified that it was sensitive and tender. The court affirmed the award, holding that, as the evidence was conflicting, the award would not be disturbed. 45 "The plaintiff was sound in limb and body prior to the accident. No appearance or symptom of cancer was present prior thereto, the malignant growth developed at the seat of the injury. After the injury plaintiff was unable to resume work. It is true that the cause of cancer cannot always be determined, but from the evidence in this case the proper conclusion is that the injury was the exciting cause of the cancer which resulted in the loss of plaintiff's leg." Compensation was awarded. 48 Cancer was held to be due to an injury suffered in a railroad accident. 47 43. Vol. 4, Bull. Ohio. I. C. 129. 44. Adams v. Iten Biscuit Co., Okla. , 162 Pac. 938. B. 1 W. C. L. .*. 1480. 45. Supar Co. of Santa Ana v. Industrial Ace. Comm., 35 Cal. App. 652, 170 Pac. 630 (1918). 46. Partin v. Union Tanning Co.. 2d. Rep. Ky. L. Dec. 110; In m John Miller, 2nd. A. R. U. 8. C. C. 97. 47. Shaw v. Chicago, R. I. & P. R. Co.. 173 HI. App. 107, 5 N. C. C. A. 780 837 W. C. 22 159 WORKMEN'S COMPENSATION LAWS. Where it is uncertain whether death was due to an injury or pre-existing cancer the jury will not be permitted to speculate thereon/ 18 Where an employee, pricked his tongue with a tack which he held in his mouth while putting up window shades, and thereafter a cancer developed at said point, necessitating an operation, from which he died, it was held that the death was due to the accidental injury. 49 The fact that death from an accidental injury may be hastened by pre-existing cancer, does not deprive the dependent of com- pensation for the death. 50 Where an employee fell across a hot pipe, inflicting injuries which disabled him for a few days, and six or seven month later a cancer developed which required a series of operations, compen- sation was awarded. 51 Where an employee while, pushing a post with his abdomen, suffered a rupture of an internal cancer and died, the death was held to be accidental. 52 Where an accidental blow inflamed a cancer, obstructing the ducts of the gall bladder and liver, causing death, the accidental blow was held to be the proximate cause of the death. 53 Where an employee claimed to have slipped and injured his leg 24 hours before he was found to have cancer of the bone and there was no discernible bruise, it was held that it had not been established that the accident was the cause of the disease. 6 * Where a workman was incapacitated for three months by being struck in the back, and he died from the after effect of an operation for cancer, the medical testimony being conflicting &s to the origin 48. Malvern Lumber Co. v. Sweeney, 116 Ark. 561, 172 Si W. 821, 8 N. C. C. A. 972; Ip re Wm H. Cocklin, 3rd. A R. U. S. C C. 114. 49. Cramer v. Uttell, 38 N. J. L. J. 82. 50. Blatt v. Schonberger & Noble, 7 N. Y. S. D. R. 388. 51. Richardson v. Builder's Exchange Assn., 9 N. Y. St. D. R. 317. 52. Voorhees v. Smith Schoonmaker Co., 86 N. J. L. 500, 92 Atl. 280. 53. Rose v. City of Los Angeles, 2 Cal. I. A. C. D. 551. 54. Narcontone v. The Charles Francis Frees, The Bull. N. Y. Vol. 1, No. 12, p. 16. 338 PERSON AT- INJURY OR DEATH BY ACCIDENT. 161 of the cancer, it was held that the evidence was sufficient to sup- port a finding that death resulted from the injury." Where gastric cancer followed an injury, but no evidence was produced to show that cancer was caused by the injury, compen- sation was denied. 86 Where a condition of malignant cancer termed carcinoma was aggravated by an injury and about seven months thereafter re- sulted in death the death was held to be due to the original injury and compensable. 87 160. Carbuncle. It was claimed that a carbuncle which af- fected the spine causing extended disability, resulted from an accidental blow on the employee's back, "According to medical science carbuncles are not associated with germs introduced from without but generally, if not always, come from internal poison- ing, accompanying a run down condition of the system which existed in the case of this man. There is at least a very strong probablity that this carbuncle, appearing in the usual place upon the body came as a result of some of those causes which generally produce carbuncles and not from anything which occurr- ed in connection with the employment.." Claim dismissed. 88 161. Cellulitis. Where Cellulitis of the joints of the finger developed as a result of a partial amputation, made necessary by an accidental injury, such disability is, compensable."* Cellulitis of the knee, caused by a traumatic injury, is a com- pensable injury. 60 55. Lewis v. Port of London, Authority 7 B. W. C. C. 577 C. A. 56. McElligott v. Frankford General Insurance Co., 2 Mass. Ind. Ace. Bd. 521. 57. Whittle v. National Aniline & Chemical Co.. Pa. (1920), 109 All. 847, 6 W. C. L. J. 103. 58. Redmond v. Winchester Repeating Arms Co., 2 Conn. C. D. Pan 1, p. 118; Throm v. Estate of Malley, 2 Conn. C D. Part 1, p. 121. 59. Feinman v. Albert Mfg. Co., 155 N. Y. Supp. 0, 170 App. Dlv. 147. 60. In re Harry Lee, 2nd. A. R. U. S. C. C. 98. 339 163 WORKMEN'S COMPENSATION LAWS. 162. Cerebral Abscess. Where an employee died of cer- ebral abscess compensation was denied on the ground that there was no proof that the abscess was of traumatic origin. 61 163. Cerebral Hemorrhage. Where a fireman fell from an engine, which caused a hemorrhage of the brain, accelerated by a pre-existing syphilitic condition, the resultant death was due to the accident. 62 An employee having arterial sclerosis suffered a cerebral hemor- rhage as a result of heat and over exertion. This was held to be a compensable accident. 63 Where an employee fell from a wagon, but there was no evidence as to what caused the fall, and he was found in an unconscious condition and died soon thereafter from cerebral hemorrhage, the court, in reversing the award of the board, said: "The board in the determination of questions of fact is permitted to draw such inferences from the evidence and all the circumstances as a reasonable man could draw, but its findings can not properly be based upon mere conjecture." 64 A miner was struck on the head by a mine prop, but worked for eight days thereafter, when he was taken to the hospital suffering from paralysis of the leg and arm and a pain in his head, and a portion of the skull removed was dark and discolored. The evidence was held sufficient to sustain the finding that the disability was due to cerebral hemorrhage resulting from the accident. 65 Where an employee, engaged in a hazardous employment, suffer- ed a cerebral hemorrhage, as the result of unusual strain, it was held to be a compensable accidental injury. 66 61. Judson v. San Francisco Warehouse Co., 2 Cal. I. A. C. 677. 62. Peoria R. etc., Co., v. Industrial Board, 279 111. $52, 116 N. E. 651, 63. La Veck v. Park etc. Co., 190 Mich. 604, 157 N. W. 72, L. R. A. 1916D 1277. 64. In re Sanderson, 224 Mass. 558, 113 N. E. 355, 14 N. C. C. A. 141; In re Thomas Cunningham, 3rd. A. R. U. S. C. C. 115. 65. Frey v. Kernes Donnewald Coal Co., 277 111. 121, 110 N. E. 824. 66. Fowler v. Risedorph Bottling Co., 175 App. Div. 224, 161 N. Y. S. 535; In re O. E. Pasco, 3rd A. R. U. S. C. C. 117; In re Cornelius R. Morris, 3rd A. R. U. S, G C. 117. 340 PERSONAL INJURY OR DEATH BY ACCIDENT. 164 A cerebral hemorrhage which, is not the result of an accidental injury does not entitle an employee to compensation. 01 Cerebral hemorrhage not occasioned or contributed to in any way by unusual effort or strain or traumatism Js not an injury, within the meaning of the Ohio Act. 88 Where a mine employee inhaled carbon dioxide gas commonly known amony miners as black damp, as a result of which he sus- tained a cerebral hemorrhage, which caused his death, it was held to be a personal injury by accidenr. 09 Where an employee died of cerebral hemorrhage brought on by over exertion from chasing thieves, who were attempting to steal the employer's property, his death was held to have been caused by an injury, and compensation was awarded. 70 Where a workman fell and struck his head, and was rendered unconscious for half an hour, but was not incapacitated thereafter, but three weeks thereafter suffered a stroke of paralysis and died of cerebral hemorrhige, it was held that the death was not proximately caused by tho fall. 71 Where an employee wa.s found on the floor frothing at the mouth, and next day died of blood clot on the brain, the court found that the award, founded upon said facts alone, was based on guess work and conjecture, and should therefore be reversed. 164. Cerebral Oedema. Tt was held that cerebral oedema and delirium tremens, causing the death of the driver of an automobile 67. Birnie v t Contractor's Mutual Liability. Ins. Co., 2 Mass. I. A. Bd., 619; In re John W. Powell, 3rd A R. U. 8. C. C. 116; In reWm. Walker. 3rd. A, R. U. S. C. C. 115 68. In re Beck Vol. 4, Ind. C. of Ohio 107. 69. Giacobbia v. Kerens-Donne wald Coal Co., 111. I. Bd. 10 N. C. C. A. 261; Kelly v. Auchentea Coal Co., 4 B. W. C. C. 417; In re Ellis Vol. 4*. Ind. C. of -Ohio 150. 70. In re Ellen Fair, Vol. 1, No. 7, Bui. Ohio I. C. 83. 71. McAdoo v, Cudahy 'Packing Co., 2 Cal. I. A. C. 500, see also ai* oplexy. 72. Haneen v. Turner Const. Co., 224 N. Y. 331, 120 N. E. 9S, 17 N. C. C. A. 787. -ii 341 167 WORKMEN'S COMPENSATION LAWS. truck, was the natural result of a fractured wrist and lacerations of the face and scalp suffered; while cranking the engine. 73 165. Colds. Colds resulting from ordinary exposure are "not due to an injury sustained while in the performance of duty" within the meaning of the Federal Act and therefore not compensable. 74 166. Concussion of Brain. Where a traveling salesman, after getting off a ferry boat, fell as a result of dizziness, striking his head and causing concussion of the brain compensation was denied on the ground that there was no e /ideuce tending to connect the cause of the fall with a risk incidental to or arising out of the work being performed. 75 Where a workman was found lying at the bottom of a stair, which he used in doing his work, and was unconscious and suffer- ing from concussion of the brain, the court held that: "All that is known is consistent with the natural view to take, namely, that the workman fell from the stair, there is thus a prima facie case for compensation." 76 Where an employee, through an accidental injury, suffered a concussion of the brain, but recovered sufficiently to work for a week, when he fell dead, compensation was awarded on medical testimony to the effect that the death was caused by the injury. 77 A similar decision was rendered in a case where the employee died about eight months after suffering a concussion of the bruin in an accidental fall, and had apparently recovered from its effects. 78 167. Death, Presumption From, While at Work. "It is said Hollenbach's death did not result from electric shock because the 73. Bridgeman v. McLoughlin, 7 N. Y. St. -Dep. Rep. 425. 74. In re Geo. L. Snider, 3rd. A. R. U. S. C. C..118. 75. Van Winkle v. Johnson Co., 2 Cal. I. A. C. 212. 76. Fagan v, Jack Bros., 31 Sheriff Ct. R. (Sc.) 332. 77. Deem v. -Kalamazoo Paper Co., 189 Mich. 655, 155 N. W. 584. 78. Milwaukee Coke & Gas Co., v. Industrial Commission, 160 Wis. 247, 151 N. W. 245. 342 PERSONAL INJURY OR DEATH BY ACCIDENT. 167 voltage (114) was not sufficient to produce death. Defendent was a strong, able-bodied man in the full enjoyment of his faculties at the time the current struck him. The voltage may have been less than is usually found to produce death. The wire burned into his flesh. The current was so powerful that the other workmen could not take hold of his body long enough to remove him from the wire. He died under the current. In such cases the presump- tion is that the accident was the cause of death, and this pre- sumption will prevail unless overcome by evidence." 70 Where the evidence showed that the deceased workman iiad for 21 years been in perfect physical condition, it is the reasonable presumption that his sudden death while at work was due to ex- ternal efficient agency. 80 Where an elevator operator was found dead in the bottom of the shaft, and the elevator was found stopped between floors, the court held that, in view of the presumption against suicide and in favor of accident, the evidence was sufficient to sustain the award. 81 Where a sailor, recovering from a drinking bout, disappeared from a deck having a railing about it S 1 /^ feet high, the court held that in spite of the presumption against suicide, it was unable under the circumstances to infer that the death ot the deceased was due to an accident. 82 Where an employee was killed when he entered a transformer room in violation of rules, the court held that the burden was on the administrator to prove that the accident arose out of and in the course of the employment. 83 The same rule* was followed where a hotel porter, who wtts supposed to be off duty, was found dead in an elevator. 84 79. Hollenbach Co. v. Holletabach, 181 Ky. 262, 204 S. W. 152, -2 W. C. L. J. 492, 16 N. C. C. A. 879. 80. Bloomington etc., R. Co. v. Industrial Board, 276 III 454, 114 N. E. 939. 81. Wlshcaless v. Hammond Standish & Co., 201 Mich, 192, 166 N W. -933, 17 N. C. C. A. 793. 82. Rourke v. Holt & Co., W. C. & Ins. Rep. 7, 51 Ir. L. T. 121. 83. Northern 111. L. & T. Co. v. Industrial Board, 279, 111. 565, 117 N. E. 95, 15 .N. C. C. A. 159; Grant, v. Fleming Bros Co., la.. 176 N. W. 640, 5 W. C. L. J. 688. 84. Savoy Hotel Co. v. Industrial Board, 279 111. 329, 116 N. E. 712, 15 N. C. C. A. 233. 343 167 WORKMEN'S COMPENSATION LAWS. Where death results from injury, the dependents are entitled to recover although death may not have been the natural or pro- bable consequence of the particular injury 85 "The board could reasonably infer from the facts proved by direct or circumstantial evidence that the employee fell from the frost covered and unguarded trestle to the ground thirty-six feet below, and thereby sustained fatal injuries. We cannot say that such a conclusion is based upon mere surmise or speculation; it is sup- ported by logical reasoning from established facts." 86 Where a workman was found dead on a cement floor at the bottom of some stairs, a wooden beam having been placed about 4 feet above the stairs the same day, the court, in affirming an, award of compensation, said : ' ' Circumstances shown may justify inferences which bring liability within the realm of probability, rather than leaving it a matter of conjecture merely." 87 Where a night watchman was found dead at the bottom of a well under a stairway, it held that an award of compensation was justified by the evidence. 88 On August 15, 1916, the husband of the petitioner was a farm hand, whose particular employment on that day was to make a trip to Philadelphia with a truck wagon drawn by a team of mules. He left the farm between 5 and 6 o'clock in the afternoon, and at 2 o'clock the next morning was found dead, sitting on the seat of the truck with his body crushed between the seat and the over- hanging roof of a shed, under which the mules were standing. From the circumstantial details in evidence, the judge of the pleas determined that the decedent's death was caused by an accident, and that such accident arose out of and' in the course of his employment. 89 85. Dunham v. Clare. 66 L.. T. 751. 4 W. C. C. 102. 86. In re Uzzio, 228 Mass. 331, 117 N. E. 349, 15 N. C. C. A. 235, 1 W. C. L. J. 80; Davis v. Boston Elev. Ry. 222 Mass. 475, 111 N. E. 174. Proof may be by circumstantial evidence. Peoria Ry. Terminal Co. v. Indus. Bd. 279 111. 352, 116 N. E. 661,15 N. C.. C. A. 632. 87. DeMann v. Hydraulic Engineering Co., 192 Mich. 594. 159 N. W. 380, 15 N. C. C. A. 236. 88. Fogarty v. National Biscuit Co., 221 N. Y. 20, 116 N. E. 346. 89. Dixon v. Andrews, 92 N. J. L. 512, 103 Atl. 410, 2 W. C. L. J. 105. 344 PERSONAL INJURY OR DEATH BY ACCIDENT. 167 Where a workman was found dead beside his work on a low platform, from which he had fallen, the autopsy showing mitral regurgitation, the court, in denying compensation said: "It can- not be assumed that the man made a misstep and then again assumed that such misstep caused fright, and then again assumed that the fright caused the heart to stop. This would not only be basing an assumption upon an assumption, but would be taking one into the realms of conjecture." 90 Evidence that an employee, in previous good health, dropped dead at the moment of contact with an electric wire or socket while he was working on a wet cement floor, sustains a finding that he died an accidental, and not a natural death. 91 "Where a workman, who previously had been in good health, suffered a slight injury to the eye, which gradually became worse until he lost the sight of the eye, and then gradually grew worse, exhibited neurotic symptoms and died six months after the acci- dent, it was held that there was evidence to support the finding that the accident was the proximate cause of the death. 92 If death ensues it is immaterial whether that was the reasonable and likely consequences of the injury or not; the only question is whether in fact death resulted from the injury. 93 The Workmen's Compensation Act does not required demon- stration as to the cause of death, but only that degree of proof which produces conviction in an unprejudiced mind. 94 "The dependents were not required to present such proof as would entirely exclude the possibility that the decedent's death was due in part to a diseased condition of the heart." 96 90. Guthrie v. Detroit Shipbuilding Co.. 200 Mich. 385, 167 N. W. 37, 1 W. C. L. J. 1035. 91. State v. District Court, 134 Minn. 324. 159 N. W. 755. 92. Johnston v. Southern Cal. Box Factory, 1 Cal. Ind. Com. Part 2, 577. 93. In re St>onatske. 220 Mass. 526; 108 N. E. 466, 8 N. C. C. A. 1025. 94. hell Co. v. Industrial Ace. Comm. 36 Cal. App. 463, 172 Pac. 611, 2 W. C. L. J. 34; Western Grain etc. Products Co. v. Plllsbury, 173 Gal. 135. 159 Pac. 423. 95. Bucyrus v. Townsend 64 Ind. App. , 117 N. E. 565, 1 W. C. L. J. 166. 345 170 WORKMEN'S COMPENSATION LAWS. 168. Delirius. Where an injured workman, while delirious as a result of injuries received, did things contrary to the doctor's orders, got out of bed and subsequently died, possibly from the effect of these acts, it was held that the rights of dependents to death benefits was not thereby affected. 96 169. Delirium Tremens. Where a condition of alcoholism or tremens is aggravated through an accidental injury causing death, the death is held to be due to the accident. 97 Where an employee suffered a serious physical injury, and while in the hospital developed delirium tremens, and the physicians testified; that the injury was sufficient to be the producing cause of the delirium tremens in view of the employee's habits, compen- sation was awarded. 98 Where it appeared that delirium tremens would not have develop- ed had it not been for the injury and the shock following it, the court said, "The fact that his system had been so weakened by his intemperate habit that it was unable to withstand the effects of the injury does not thereby shift the proximate cause of death from his injury to his intemperate habit." 99 170. Dementia Praecox. Where an employee sustained a fracture of the right tibia, and while still disabled was committed to a hospital for the insane, the commission found after extended testimony from alienists that dementia praecox is a type of in- sanity into which trauma cannot enter either as a "direct cause 96. Brogi v. Hammond Lumber Co., 1 Cal. Ind. Ace. Comim., (Part 11) 137. 97. Sullivan v. Industrial Engineering Co., 173 App. Div. 65, 158 N. Y. S. 970; Carroll v. Knickerbocker Ice Co., 169 App. Div. 450, 155 N. Y. S. 1; Winters v. New York Herald Co., 17H App. Div. 960,, 155 N. Y. S. 149; Dunn v. West End Brewing Co. 5 N. Y. St. Dep. Rep. 380. Affirmed later in the appellate Div; In re James Kelley, 3rd A. ft. U. S. C. C. 122. 98. Minnis v.Young 9 N. Y. St. Dep. Rep. 314. 99. Ramlow v. Moon Lake Ice Co., 192 Mich. 505, 158 N. W. 1027, L. R. A. 1916 F. 955, 14 N. C. C. A. 295. 346 PERSONAL INJURY OR DEATH BY ACCIDENT. 172 or as a precipitant. It was held that the applicant was entitled to compensation solely for the disability incident to the fracture. 1 171. Dermatitis. Where a chambermaid contracted der- matitis, an infection of the hands, it was held that the resulting disability was not compensnble, because there was no proof of its accidental origin or of an opportunity for the infection to en- ter by accident. 8 Compensation was awarded in a case of "Dermatitis venena- ta." The commission said, "we are inclined to the opinion that the infection in this case is to be attributed to walking back and forth all day in this wood -dust to the depth of an inch, which irritated the lower limbs and was communicated to the hands and arms, perhaps from scratching the lower limbs." 3 This was therefore held to be a personal injury and consistent with the Act as amend- ed by the elimination of the word "accident," prior to the oc- currence of disability in this case. Though the commissioners ad- mitted the case was not free from difficulties. A claim for disability resulting from dermatitis alleged to have been caused by the handling of heavily inked papers was denied because of lack of medical evidence to sustain the claim.* A claim was allowed for disability resulting from dermatitis due to irritation caused by machine oils. 5 172. Diabetes. All the evidence tended to prove that be- fore the accidental injury the employee was a well man, a few days after the injury his urine was examined and there were in- dications of the presence of diabetes. The court in affirming an award held that the conclusion that the diabetic condition re- sulted from the injury was not based on mere conjecture, there be- 1. Oliver v. Union Iron Works, 5 Cal. I A. C.D. ^93; baderman v. Standard Accident Insurance. Co., 2 Mass. I. A. Bd. 551. 2. McDonald v. Dunn, 2 Cal. I. A. C. Dec. 91; Petschett v. Praia, 8 B. W. C. C. 44. 3. Reeves v. The Diamond Match Co. et al-, 5 Cal. I. A. C. D. 236. 4. In re Theodore H. Schlessman. 2nd. A. R. IT. S..C. C. 154. 5 In re S. CR. Moran, 3rd. A. R. U..S. C. C. 155. 347 173 WORKMEN'S COMPENSATION LAWS. ing evidence that a well and healthy man when injured might develop the disease. 6 In a suit at common law for damages, the court held evidence of the existence of diabetes resulting from the accident admissible. 7 173. Disease Following Injury. Disease must be traceable to an accident before it is compensable. 8 "Where an employee suffered a rupture, and after an operation left the hospital two weeks after the injury, which was on April 14th, in a thin and emaciated condition, and on September 22nd entered an infirmary, and died of pulmonary tuberculosis on December 12th, it was held that the claimant had not sustained the burden of showing that there was any connection between the rupture and the death. 9 Under a policy covering death as a result of injuries caused solely by external, violent and accidental means, the insurer was held liable where death was caused by a disease which was itself caused by external, violent and accidental bodily injuries. 10 Where an accident to an employee's eye, which at first appeared not serious, resulted, after a week or more in a diseased condition of the eye which destroyed the sight, the injury occurred, within the meaning of the statute, when the diseased condition culminat- ed. 11 Decedent, working in a blacksmith shop, pinched his finger and an infection resulted. Four operations were performed, the last apparently successful. Four days later he was suffering from acute inflammatory rheumatism ( and died in ten days. The physician 6. Balzer v. Saginaw Beef Co., 199 Mich. 374, 165 N. W. 785, 1 W. C. L. J, 399L 7. .Woody v. Louisville R. Co., 153 Ky. 1, 154 S. W. 384. 8j. Blair v. Omaha Ice and Cold Storage Co., Neb. , 165 N. W. 893, 1 W. C. L. J. 424; In re Patrick Coughig^ 2nd A. R. U. S. C. C- 128. 9. Kemp v. Clyde Shipping Co., Ltd., 119 L. T. R. 131,17 N. C. C. A. 876. 10. Armstrong v. West Coast Life Ins. Co., 41 Utah 112, 124 Pac- 518. Squire Dingee Co. v. Indue. Bd., 111. , 117 N. E. 1031, 1 W. C. L. J. 331. 11. Johansen v. Union Stockyards Co., 99 Neb. 328, 156 N. W. 511. 348 PERSONAL INJURY OR DEATH BY ACCIDENT. 173 who treated him during the ten days was of the opinion that the rheumatism was caused from a secondary infection as a result of the local one. The other physicians claimed the fourth operation entirely eradicated the infection. The court, in affirming the award, held that the board was the judge of the credibility of the witness both medical and lay, and its finding in the absence of fraud was conclusive, if there was any evidence to support it. 12 Deceased, while employed in a bowling alley, suffered a broken thigh bone, from a flying pin. He was discharged from the hospi- tal with the bone not entirely healed, and later reentered the hospital and died. Deceased had a cut on his forehead which an attendant stated he had suffered by falling when he tried to get up. Reversing the judgment, the court held that there was no evidence from which a fair inference could be drawn that de- ceased's death resulted from the injury sustained in the bowling alley. 18 Deceased slipped and struck his head. He was dizzy for a few minutes, but continued to work. He complained of pains in his head, but worked all afternoon. He did not work the following .day on account of the weather, but did work the next day. He went home weak and dizzy, and never recovered. A lump came out at the end of his spine. The physician who treated him said that he died of pneumonia, the others said he did not. Affirming the award the court said that it was unable "to say there was no testimony supporting the finding of fact of the board that the death was due to the injuries received while in the employ of the defendant." 14 Deceased fell and struck his head, and was unconscious for a few minutes, and three days afterwards resumed his duties and worked for a week, and was apparently normal. About three weeks thereafter he entered a hospital, and in two weeks died. 12. Perdew v. Nutter Cedar Co., 201 Mich., 520, 167 N. W. 868, 17 N. C. C. A. 884, (1918). 13. Perry v. Woodward Bowling Alley Co., 196 Mich. 742, 163 N. W. 52, 17 N. C. C. A. 885. 14. Tinman v. Roardman River Elec. Light & Power Co.. 200 Mich. 206, 166 N. W 860 (1918). 349 173 WORKMEN'S COMPENSATION LAWS. It was contended that the evidence was not sufficient to sustain the finding that death resulted from the injury. The doctor who made an autopsy testified that the death; resulted from a hemorrhage of the brain of traumatic origin, which the court on appeal held sufficient to justify the finding. 15 Latent disease, accelerated by an accident to the extent that it produces disability is compensable. 16 "Where a workman receives a personal injury from an aojcident arising out of and in the course of his employment, and disease ensues which incapacitates him for work, the incapacity may be the result of the injury, within the meaning of the (English) Work- men's Compensation Act, even though it is not the natural re- sult of the injury. The question to be determined on a claim for compensation is whether the incapacity is in fact the result of the injury. Ystradowen Colliery Co. v. Griffiths, (1909) 2 K. B. 533. In a case where a petitioner's arm was broken while he was in, defendant's employ, and the fracture properly united, but there developed an abscess upon the fleshy part of the thumb, which resulted in ankylosis, making the thumb useless, the Su- preme Court held that the ankylosis of the thumb was an injury arising by accident out of and in the course of the employment. Newcomb v. Albertson, 85 N. J. Law, 435, 98 Atl. 928. And Mr. Justice Swayze, in writing the opinion in Liondale Bleach Works v. Riker, 85 N. J. Law, 426, at Page 429, 89 Atl. 929, observed that the question of disease following an accident was considered in Newcomb v. Albertson, Supra. The decision there, rested on certain English cases, is to the effect that an injury which follows an accident, and which but for the accident would not have happened, justifies the finding that the injury in fact results from the accident." 17 15. State ex rel. London & L. Indemnity Co. v. District Court Henne- pin Co., 139 Minn. 409, 166 N. W. 722, (1018) . 16. Indianapolis Abattoir Co. v. Coleman, Ind. App. , 117 N. E. 502 I W. C..L. J. 41,. 17. Lundy v. George Brown & Co., N. J. App. 108 Atl. 252, 5 W . C. L. J. 294; State ex rel. Anseth v. District Ct. of Koochiching County, 134 Minn. 16, 158 N. W. 713; Foley v. Home Rubber Co., 89 N. J. Law, 474, 99 Atl. 624, Affirmed 91 N. J. Law, 323, 102 Atl. 1053. 350 PERSONAL INJURY OR DEATH BY ACCIDENT. 173 Where an injury so re05. 51. Liondale Bleach, Dye & Paint Wks. v. Riker, 85 N. J. L. 426, 89 All. 929. 52. Rouda & Spivock v. Heenan, 3 Cal. I. A. C. D. 36. 53. Judice v. Degnon Contracting Co., 181 App. Div. 909, 167 N. Y. S. 1107; Casey v. Borden's Condensed Milk Co., 182 App. Div. 907, 168 N. Y. S. 1104; In re Benjamin H. Flucht, 2nd A. R. U. S. C. C. 103. 54. Santa v. Industrial Ace. Cbmm., 175 Cal. 235, 165 Pac. 689, 15 N. C. C. A. 636. 356 PERSONAL INJURY OR DEATH' BY ACCIDENT. 183 disability was due to pre-existing ailments or to embolism, the Commission's finding on the latter theory is conclusive. 85 Where one employee imagined he saw another employee about to be killed, and immediately sustained a stroke of paralysis, which resulted in death, the medical testimony being to the ef- fect that the paralysis might have been caused by severe men- tal shock, or by cerebral embolism due to a former diseased con- dition of the heart, it was held that the evidence wart insufficient to prove accidental death arising out of the employment. M Where an employee suffered a hernia by accident the Com- mission said: "Passing now from the question of hernia to the immediate cause of the man's death, is there any connection between the ordinarily simple and safe operation for the radical cure of hernia and the pulmonary embolism which I find \vas the direct cause of the death of Mr. Maloney. Dr. Coley in the article already cited in Keen's Surgery (1914 Ed., Vol. 4, page 38), mentions the fact that following this operation a certain number of deaths have been reported as due to embolism. Dr. Frazier in Vol. 1, Keen's Surgery, page 446, says that pulmo- nary embolism, while comparatively rare, occurs with some fre- quency as the sequel of abdominal operations." It was so found, and compensation awarded. 67 Where an employ ee'si death was caused by an emboliLs, result- ing from a septio condition following an amputation of a leg crush- ed by an accident, it was held that the 1 death, was due to the ac- cident. " 183. Epilepsy. Where a laborer was working on a scaffold 5 feet wide, 39 feet from the ground, guarded by a rope 3 feet high around its edge, suffered an epileptic fit and rolled off of the scaffold, the court said: "There was nothing in the nature of the 65. Fooler v. Risedorph Bottling Co., 175 N. Y. App. Div. 224, 161 N. Y. Supp. 535; In re Frederick E. Walker, 2nd. A.R. U.8.C.C. 155. 56. Keck v. Morehouse, 2 Cal. I. A. C. D. 264. 57. Maloney v. Waterbury Farrel Foundry & Machine Co., 1 Conn. C. D. 220. 58. 'Akina v. Pacific Light & Power Corporation, 2 Cal. I. A. C. D. 911. 357 183 WORKMEN'S COMPENSATION LAWS. work (which the deceased was doing at the time that had any tendency to bring on a fit of; epilepsy. Neither the fit, nor* the fall, nor the injury^ was produced by the nature of the work in which he was engaged. The injury was doubtless the greater by reason of the distance from the scaffold to the ground, but this distance was not due to the nature of the work itself. Tha question whether or not sach an injury arises 'out of the em- ployment cannot and does not depend upon the height from which the employee falls or the extent of the injury he receives as the result of the fit." 59 "There is no claim that the scaffold was, improperly construct- ed or in any way unsuitable for the service. Due to no condi- tions arising out of his employment, but solely to his predis- position to epileps(y, 'of which his employer had no notice, he fell from the scaffold, receiving an injury from which death re- sult ed. The fall was caused and caused only by the epileptic fit. The fit was the direct and only cause of, his injury. We do not think it would be seriously contended that had he fallen in an epileptic -fit while standing on the floor, and received the injury he did that the injury arose out of the employment, and that the defendant was liable. The distance of the fall might contribute to the extent of the injury, but it was not a contribu- tory cause to the fall- When the deceased was seized, with the epileptic fit he would have fallen, no matter where he was, and the employer cannot be held responsible because that unfortu- nate seizure occurred when the workman was on a scaffold, a few feet from the floor." 60 Where an employee suffered an accidental blow on the head, and subsequently developed epilepsy, it was held that the evidence was insufficient to prove that the blow on the head was so severe that the epilepsy could be said to be of traumatic origin. 61 ^ 59. Brooker v. Industrial Ace. Commission, 176 Cal. 275, 168 Pac. 126 (1917), 1 W. C. L. J. 9. 60. VanGorder v. Packard Motor Car Co., 195 Mich. 588, 162 N. W. 107 (1917), 15 N. C. C. A. 214. 61. Larson v. Powers, 2 Cal. I., A. C. D. 320. 358 1'KUSONAL INJURY OK DKVTII BY ACCIDENT. 184 Where epilepsy followed after the employee had suffered a fracture of his skull, the resulting disability was held compensa- ble. aa "Iii view of the evidence in this case, the Board is not called upon to speculate as to whether an epileptic fit was or not the moving cause of decedent's fall into the water. With this view of the case, it is unnecessary to pass upon the issue which would have been presented if in fact an epileptic fit had been the moving cause of the drowning. Awards have, however, been upheld in Great Britain and in other jurisdictions where an epileptic fit was the niovng cause and a hazard of the employment intervened. In Wicks v. Dowell & Co., Ltd. (1905 7, W. C. C. A.), where a man working on the edge of an open hold of a ship had an epileptic fit and fell into the hold, the court held 'that the accident arose out of the employment. ' This case has been followed by the Massachu setts Commission in Driscoll v. Cushman Express Co. An opposite view has been taken in some states. Van Gorder v. Packard Motor Car Co., 162 N. W. 107 ; Brooker v. Indus Ace. 'Com., 168 Pac. 126. " 3 Where an employer, while at work, was seized by an epileptic fit and suffered a dislocation of his shoulder, his claim for com- pensation was denied. 04 Under the Federal Act compensation is allowed in such cases. 85 It has been held by the Wisconsin Commission that injuries MI stained by fall due to epileptic fit are not compensable unless there is some peculiar hazard connected with the place of the fall. 86 184. Erysipelas. Wihere an employee froze his nose in the course of his employment, causing a break in the skin, and erysip- 62. Butt v. Gellyceidrin Colliery Co., 3 B. W. C. C. 344. 63. Barnett v. Silver, 2nd Ky. R. W. C. L. D. p. 121. 64. Allard v. Ingersol & Bro., 1 Conn. C. D. Part 1, p. 274. 65. In re Win. Trenkel. 2nd A. R. U. 8. C. C. 249; In re James J. Gorman, 2nd. A. R. U. S. C. C*. 249. 66. Kowalski v. Trostel & Sons, Fourth Annual Report Wis. Indus. Com. p. 17. 359 184 WORKMEN'S COMPENSATION LAWS. elas developed by means of a germ entering the break, the erysip- elas was held to be due to an accident arising out of the employ- ment. 67 Where death results from erysipelas, which follows as a natural though not as a necessary consequence of an accidental wound, it may be deemed the proximate result of the wound and not of tii3 disease within the requirements 1 of an accident policy that death must result solely from accidental means. 68 Decedent had been working in a loft of a boarding stable and came out to go down stairs. He stopped on the way at his apart- ment in the stable for a plate of soup. As he was going down stairs he slipped and fell, striking his head against a pillar. The wound became infected. Thereafter erysipelas developed, which, with other complications, caused his death. Compensation was awarded for the death. 69 Where erysipelas followed after an injury to a workman's foot the resulting disability was held compensable. 70 An ice wagon driver suffered a strain of his neck and shoulder. He applied liniment daily, from which an abrasion of the skin re- sulted, his pain increased until he died about two weeks thereaf- ter in a hospital. The medical testimony was practically all to the effect "that erysipelas could have resulted from an abrasion of the skin caused by the use of liniment, which is a customary home remedy in case of strains." Compensation was awarded for the death. 71 Where a workman's death occurred on September 27th froia erysipelas, which first developed on the 15th, it was held to be tin 67. Larke v. John Hancock Mutual Life Ins. Co., 90 Conn. 303. 97 AtL 320, 12 N. C. C. A. 308. 68. Caldwell v. Iowa State Traveling Men's Association, 156 la. 327. 136 N. W. 678. 69. Leslie v. O'Connor & Richman, 5 N. Y. St. Rep. 383, 11 N. C. C. A. 501; Aff'd,, 173 N. Y. App. Div. 988, 220 N. Y.'672, 116 N. B. 1057. 70. Mutter v. Thomson, 50 Scot. L. R. 447, 6 B. W. C. C. 424; In re Jake Levinson, 2nd A. R. U. S. C. C. 105. 71. Dependent of Frank King v. City Ice & Coal Co., 2 Conn. C. D. Part 1, p. 168. 360 PERSONAL INJURY OR DEATH BY ACCIDENT. 186 proximate result of an injury which he had received twenty fhe days prior to his death. 72 Where the employee suffered an accidental injury to his leg, ap- parently trivial in itself, and infection followed, so that erysipelas developed six days after, there was no new intervening cause of the disability, "the chain of causation has no missing link, and the injury was the proximate cause of the continuing disabili- ty. " T8 A workman employed as a molder received some slight burns upon his arm ; ten days later erysipelas developed at the site of the injuries and caused death. Compensation was allowed. 74 Where the medical testimony was to the effect that erysipelas was not caused by an injury, compensation was denied. 75 185. Eyesight. Where an employee engaged as a show card writer, while using wood alcohol to clean apparatus, had his vision impaired by reason of the fact that his eyes and optic nervo were exposed to and in Contact with the vapor of wood alcohol in unusual quantities, it was held to constitute an injury sustained by accident, within the meaning of the California Act, as it read in January, 1914, in that it was unexpected, and unintentional. 70 186. Eye Injuries. ''The opinions of the doctors cannot be reconciled. The testimony of the respondent is that he was a carpenter by trade, that up to the time of the accident he used either eye as convenience dictated, and that there had been no trouble with or diminution of his vision. A neighbor testified that about a year before the accident he was with respondent when he was shooting hogs and that he could shoot from one shoulder as well as the other, and that he never complained about his eye- sight. One of the first inquiries made by oculists! in cases of 72. Dunham v. Clare, 4 W. C. C, 102; Stadlinski v. Smith Co. Inc., 1 Conn. C. C. 370. 73. Nash v. The General Petroleum Co., 1 Cal. I. A. C. D. 103. 74. In re Hipsher. Vol. 4, Ohio I. C. 129. 76. In re Patrick J. Farrell, 2nd A. R. U. 8. C. C. 105. 76. Fidelity & Casualty Co. of N. Y. v. Industrial Ace. Com., 22 Cal. App. Dec. 816, 5 Cal. I. A. C. 38. 361 186 WORKMEN'S COMPENSATION LAWS. atrophy of the optic nerve is whether the patient has ever been afflicted with lues or any germ-carrying disease. There is no evi- dence that respondent was ever so afflicted. He denies that he was ever the victim of any such condition. These physical facts, coupled with the opinion of reputable oculists that the condition may have resulted from the accident is enough to sustain the judgment of the court below." " Loss of eyesight by a show card writer, caused by the use of wood alchohol, was held to be an accident within the California Workmen's Compensation Act, where it was shown that in his work he used dyes dissolved in wood alcohol and forced by air pressure through a needle, but ordinarily used this appliance very little but that just prior to the injury, which came on suddenly, he used an extraordinary quantity in cleaning the apparatus and his hands. 78 "When an accident to the eye, which does not appear serious at first, but which results after a week or more, in a diseased condi- tion which destroys the sight of the eye, the "injury occurred," within the meaning of the statute, when the diseased condition culminated. 79 A partial and temporary loss of sight, caused by the bursting of small blood vessels in the eye, due to increased blood pressure resulting from heavy lifting, was held compensable. 80 It was held to be an accidental injury where a workman while unloading bran containing grit, got some in his eye, and, rubbing it, caused an abrasion, necessitating the removal of the eye. 81 Compensation was refused for loss of an eye due to a gonor- rheal infection, where claimant was a plumber and while repairing a water basin "something" fell into his eye, which caused acute pain and impelled him to rub the eye in an effort to get it out. Two or three days later the infection developed. It appeared that 77, Nelson v. Industrial Insurance Department, 104 Wash. 204, 176 Pac. 15, 17 N. G. C. A. 1057. T8. Fidelity & Casualty Co. of N. Y. et. al. v. Industrial Accident Com- mission of California 177 Cal. 472, 171 Pac. 429, 17 N. C. C. A. 785. 79. Johansen v. Union Stockyards Co. 99 Neb. 328, 126 N. W. 511. 80. Gurney v. Los. Angeles Soap Co.., 1 Cal. I. A. C. Dec. 163. 81. Adams v. Thompson (1912), 5 B. W. C. C., 19 C. A. 362 PERSONAL INJURY OR DEATH BY ACCIDENT. 186 prior to the accident he was free from gonorrhea! infection. In refusing an award, the court said: "If this be correct, then any man at work at any occupation who gets something in his eye while at work and rubs the eye, the rubbing being followed by gonorrheal infection may recover for the loss of the eye simply on producing evidence of these facts, together with evidence tend- ing to show that he did not have gonorrheal infection previously. We cannot agree that this is good law. It bases liability upon conjecture. Unless there be some evidence tending to show that the substance which fell in the eye caused 'the infection, and unless that fact be found, we cannot regard the subsequent loss of the eye as proximately resulting from an injury 'incidental to or growing out of employment. ' ' 82 Claimant's eye had been injured by a splinter of steel striking it, and after two fellow employees had attempted to remove the steel, one, by pushing or rolling the eyelid back with a match wrapped in a piece of cloth, a gonorrheal infection set in and caused a partial loss of sight. Compensation was awarded, the court saying: "If the germ was introduced in an attempt to remove the flake of steel from the eye, it was a direct consequence of the accident, and arose out of and in the course of the employ- ment. The attempt to remove the particle of steel was a natural and necessary result of its entry into the eye." 83 A particle of ore struck a miner in the eye and in attempting to remove it a fellow workman used a match and handkerchief, after which the eye was washed in a trough used in common by other miners. A gonorrheal infection later set in, destroying the eye. The court held the loss of the eye to be an accident. 84 Where fellow workmen attempted to remove from the eye of plaintiff, a spark which had entered it from a passing locomotive, 82. Voelz v. Industrial Commission, 161 Wis. 240, 152 N. W. 830, (1915), 15 N. C.C.A. 590. See also McCoy v. Michigan Screw Co. 180 Mich. 454, 147 N. \V. 572, L> R. .A. 1916 A. 323, 5 N. C. C. A. 455. In re James S. Connolly. 2nd A. R. U. S. C.C. 115; In re Thomas H. A. Beckett, 2nd. A. R. U. S. C. C. 114. 83. Cllne v. Studebaker Corp., 189 Mich. 514. L. R. A. 1916 C. 1139, 156 N. W. 519, (1915), 15 N. C. C. A. 588. 84. State ex rel. Adriatic Min. Co. v. District Court St. Louis Co., 137 Minn. 435. 163 N. W. 756, 15 N. C. C A. 588. 186 WORKMEN'S COMPENSATION LAWS. and two days later an infection developed, due to gonorrhea! germs causing loss of sight, he was awarded compensation for the injury sustained. 85 A hard substance entered the eye of a workman while working in a foundry, and after being removed the next day by a specialist, an infection developed and he practically lost the vision thereof. The award was affirmed, it being held the injury was the proximate cause of the loss of vision. 86 Where an employee, in his application for compensation, stated that while he was sawing timbers, dirt or saw dust entered his left eye, and in his testimony stated that while so engaged, during a strong wind, that dust flew in his left eye, it might fairly be inferred that saw dust from his sawing flew into his eye. An award in his favor was affirmed. 87 A chip from a chisel caused a slight injury to the workman's eye. Thereafter, after the employee and at least four other per- sons had touched his eye, a gonorrheal infection destroyed the eye. Compensation was denied on the ground that the loss of the eye was due to a new cause independent of the accident. 88 Compensation was awarded for the loss of sight of an eye due to a strained neck, caused by an attempt to steady a barrel that had slipped from the hands of a driver while in the act of loading it upon a wagon. 89 Under the Federal Act conjunctivitis, caused by working in a very strong light, was held to be a compensable injury. 90 85. Canadian Pac. R. Co. v. Flore, 24 Dom. L. Rep. T>Q (1915), 15 N. C. C. A. 589. 86. New Castle Foundry Co. v. Lysker, Ind. App. 120 N. E. 713, 17 N. C. C. A. 791. 87. Dickinson v. Industrial Board of Illinois, 280 111. 342, 117 N. B. 438, (1917), 1 W. C. L. J. 27, 16 N. C. C. A. 888. 88. Doolan v. Henry Hope & Sons, Ltd. 1918 W. C. & Ins. Rep. 121; 1)19 L. T. R. 14, (1918), 17 N. C. C. A. 879; In re James Quinn 2nd. A R .U. S. C. C. 123. 89. Duffy v. Town of Brookline, 226 Mass. 131, 115 N. E. 248, 14 N. C. C. A. 537. 90. I n re H. E. Cuttright, 3rd A. R. U. S. C. C. 119; But see to the contrary, In re James Hawthorne, 3rd A. R. U. S. C. C. 120. 364 PERSONAL INJURY OR DEATH BY ACCIDENT. 188 A claim for impaired vision alleged to have resulted from an injury, was denied, where the medical testimony was to the effect that the loss of vision was caused by glaucoma and cataract, and not by the injury. 91 Pink eye caused by dust from an electric fan being blown into her eye and contracted from association with a fellow employee is a compensable injury under the Federal act. 92 Where a workman's hood was accidentally broken while at work and his eyes exposed to the dazzling light caused from welding, which resulted in the loss of use of both eyes, his injury was com- pensable. 93 187. Facial Paralysis. A candy factory employee, working in a cool room gradually developed facial paralysis. This was held to be a compensable injury under the Massachusetts Act, but could not of course be so considered under those acts where the injury must be the result of an accident. 9 * In a suit for damages, at common law, it was held proper for the jury to decide whether facial paralysis resulted from the em- ployer's failure to properly heat the car in which the employee was required to work. 98 188. Falls from Vertigo or Other Like Causes. Where an employee was obliged to work upon a pile of brick, fifteen feet, above the ground, and was seized with an attack of vertigo, caus- ing him to fall, sustaining injury, the court held, in a Xew York case, that the fainting and fall were caused by the elevated posi- tion in which the employee was working, and sustained a finding that the injury was accidental. 96 91. In re Win. S. Hoover, 2nd A. R. U. 8. C. C. 97; In re Clarence Me- Donough. 2nd A. R. U. S. C. C. 124. 92. In re Mary J. Hedges, 3rd A. R> .U. S. C. C. 132. 93. Rockford City Traction Co. v. Indus. Comm. III. . (1920), 129 N. E .136, 7 W. C. L. J. 283. 94. Dalton v. Employers Llab. Assur. Corp. Ltd., 2 Mass. Workm. Comp. Cas. 231. 95. St Louis and S. F. R. Co. v. MoCIain (Okla). 162 Pac. 751 (1917). 96. Santa Croce v. Sag Harbor Brick Works, 182 N. Y. App. Div. 442. 365 188 WORKMEN'S COMPENSATION LAWS. A fall from a scaffold, caused solely by an epileptic fit, dizzi- ness or fainting spell, cannot be said to result from an accident arising out of the nature or conditions of the employment, when the scaffold was only a few feet from the floor. 97 The same ruling was made in a case where the scaffold, guarded by a rope, was 39 feet above the ground, but the evidence showed that the injured employee was subject to epileptic fits. 98 An engine driver, after tightening a nut in his engine, fell to the ground, sustaining injuries from which he died. It appeared that he had been subject to faintng spells previous to this accident but had been pronounced physically fit for his postion a few days before the accident, by the company physician. It was held to be an accident arising out of his employment, and compensable. 89 A man working on the edge of an open hold of a ship was seized with an epileptic fit, causing him to fall into the hold. This was held to be an accident arising out of the employment. 1 A driver of an express wagon fell from his wagon while driving, due to an epileptic fit, and fractured his skull, from the effects of which he died. The Industrial Accident Board held that the employee was exposed to a substantial and increased risk owing to his occupation, that the injury arose out of and in the course of his employment, and was compensable. 2 169 N.Y.Supp. 695, 1 W. C. L. J. 1132, (1918), 17 N. C. C. A. 787; Miller v. Biel Ind. , 1920, 127 N. E. 567, 6 W. C. L. J. 315; Board of Comm. of Greene Co. v. Shertzer Ind. App. (1920), 127 N. E. 843, 6 W. C. L. J. 310. 97. Van Gorder v. Packard Motor Car Co., 195 Mich. 588, (1917), 15 N. C. C. A, 214, 162 N. W. 107; In re W. L. Soders 3rd A. R. U. S. C. C. 129; In re Geo. L. Farmer, 2nd A. R. U. S. C. C. 94. 98. Brooker v. Industrial Ace. Commission 176 Cal. 275, (1917), 15 N. C. C. A, 215, 168 Pac. 126. 99. Fennah v. Midland & Great Western Ry. of Ireland (1911) 45 Irish L. T. 192, 4 B. W. C. C. 440; Miller v. Biel, Ind. App. , 1921, 129 N. E. 493. 1. Wicks v. Dowell & Co. Ltd., 7 W. C. C. 14 C. A. 2. Driscoll v. Cushman's Express Co., (Mass.), W. C. C. 1912-13-125, 130. 366 PERSONAL INJURY OR DKATII BY ACCIDENT. 188 Where there is no peculiar hazard connected with the place of the fall, injuries sustained from a fall due to an epileptic fit are not compensable. 8 Claimant was attacked with vertigo and fell, forward on a ma- chine, upon which he was employed, sustaining injuries, \vhi.-h de- veloped into inflammatory rheumatism. Physicians claimed that this disease might have been latent, and made active by the fall. The court held this to be an injury "in the course of the employ- ment," stating that disability resulting from disease directly due to a physical injury or lighted up thereby, is an injury within the meaning of the act. 4 A watchman who fell into a fire, while rendered unconscious by an attack of epilepsy, and who was badly burned, was held to have sustained an injury, within the meaning of the act. 5 . Where a janitor, overcome by heat while carrying a message, fell backwards, striking his head on a pavement and died from the ef- fects of the injury, it was held that this was not an injury arising out of the employment. A carman sustained injuries in a fall from his van. Three weeks later the man died. No evidence being offered to show any connection between the fall and the cause of the death, the court held that it could not be said that di-a'li w is caused by the acci- dent. 7 Where a workman fell from a cart, was injured, and died nine days later, the medical evidence being to the effect that no con- nection existed between the fall and the cause of the death, the court held that the defendent did not prove that the death was due to the accident, and denied compensation. 8 A workhouse master, suffering from tuberculosis, had a fit of coughing while seated upon steps leading to his private room. 3. Kowalski v. Trostel & Sons, Fourth Annual Rep. Wia. Indus. Cam. p. 17; In ro Stanley Lonowskix 3rd A. R. U. 8. C. C. 122. 4. Re Washington Ellmore, Op. Sol. Dep. C. & L. P. 207. 5. Re. E. B. Clements, Op. Sol. Dep. C. & L. pg. 190. 6. Rodger v. Paisley School Board 49 Sc. L. R. 413, 5 B. W. C. C. 547. 7. Honor v. Painter (1911). 4 B. W. C. C. 188. 8. Brown v. Kidman (1911), 4 B. W. C. C. 199. 367 188 WORKMEN'S COMPENSATION LAWS. Giddiness resulted from the coughing and caused him to fall down the steps, breaking a rib, which caused pneumonia, resulting in death. This was held not to be an accident arising out of the em- ployment. 9 A buyer and department store manager, during a business trip, fell upon the bath room floor of a hotel and suffered injury to his face. The fall was caused by an attack of faintness. It was held the accident did not arise out of the employment. 10 "Where a workman suffered a dislocation of his shoulder and other injuries as a result of a fall caused by an epileptic fit. Com- pensation was denied. 11 "Where the driver of a coal wagon fell dead, and no fracture) of the skull or other evidence indicated that death resulted from the fall, but that it was due to natural causes, it was held that this was not an injury for which compensation could be allowed. 12 Where a hack driver was pitched from his seat by the motion of the hack while driving and while helpless from dizziness or unconsciousness occasioned by a disease from which he was suffer- ing, he was entitled to compensation for the resulting injuries, since his fall was an "accident arising out of his employment." 13 Where an employee fell as the result of dizziness and disease and disability continued, but was not due to the fall, compensation was denied. 14 Falls caused by dizziness, epilepsy, weakness and etc., while the employee is engaged in his regular duties, and resulting in injuries, justify an award under the Federal Act. 15 9. Butler v. Burton on Trent Union (1912), 5 B. W. C. C. 355. 10. Jacobs v. Davis -Schonwasser Co., 2 Cal. Ind. Ace. Com. (Part II), 50. llv Trostel & Sons' Fourth Annual Report (1915) Wis. Ind. Com. 17. 12. Lewis v. Globe Indemnity Co., 1 Mass. Ind< Ace. Bd. 48. (13. 'Caroll v. What Cheer Stables Co., R. I. 96 Atl. 208. 14. Swart v. Panama Cal< Espos. Co. and Md. Casulty Co., 1 Cal. Ind. Ace. Com. (Part 2 ), 50, See Cerbral Hemmorrhage, note 1. 15. In re James J. Gorman 2nd A. R. U. S. C. C. 249; In re Geo. Uzuack, 2nd A. R. U. S. C. C. 250; In re Lydia K. Armentraut 2nd. A. R. TJ. S. C. C. 250. 368 PERSONAL INJURY OR DEATH BY ACCIDENT. 192 189. Felon. A frog felon, resulting from a bruise caused by pressing the hand against a screw driver, was not caused by an accident. "An accidental event takes place without one's foresight or expectation; an event that proceeds from an un- known cause, or is an unusual effect of the known cause, and therefore not. expected." 16 190. Flat Foot from Traumatism, Flat foot, resulting from accidental traumatism was held to be com-pensable. 17 191. Floating Kidney. An employee, suffering for a con- siderable time with a floating kidney, is not entitled to compen- sation in the absence of evidence to show that the injury resulted from an accident in the course of his employment. 18 192 Frostbite and Freezing. An employee, engaged in chopping wood and building a road, froze his thumb, necessitating its amputation. In the Minnesota Act it is provided that the word ""accident," as used in the act, unless a different meaning is indi- cated by the context, shall be construed to mean "an unexpected or unforeseen event, happening suddenly and violently with or without human fault." On certiorari to review an award of com- pensation in favor of the employee the court, after remarking that freezing was a personal injury within the meaning of the act without question, and likewise that it was obvious that it was an "unexpected and unforeseen event," said: "The difficult question is whether the requirement that the event be one 'happen- ing suddenly and violently' excludes it. Freezing comes suddenly and violently as distinguished from gradually and naturally or in ordinary course. In common talk a sudden or violent death is one occurring unexpectedly and not naturally or in the ordi- nary course of events. In some such sense the words are used 16. Woodruff v. R. H. Howes Const. Co., N. Y. App. Div. , (1920). 127 N. E. 270, 6 W. C. L. J. 72. 17. Freeh v. San Joaquin and Power Corp. 2 Cal. Ind. Ace. Com. 641. 18. Oberts v. Wisconsin Telephone Co,. Fourth Annual Report (1915) Wis. Ind. Com. 24. 369 W. C 24 192 WORKMEN'S COMPENSATION LAWS. in the statute. Their effect isi not to exclude from accidental injuries all except such as result from physical force applied from without. It is suggested in argument that these particular words with others employed in the same connection were used in caution to exclude occupational and other diseases. Whether such is their effect is not for decision here. We think that a fair con- struction of the statutory definition does not exclude freezing and we hold that it is a personal injury caused by accident within the meaning of the act. ' J19 It was held that where the evidence warranted a finding that the employee was exposed to materially greater danger of getting his hands frozen than the ordinary outdoor worker, that therefore the injury arose out of the employment and was not merely a consequence of working out of doors in severe weather. 20 A woodsman misunderstood his orders, and then worked so hard to catch up that his feet perspired freely and then froze on the way home. The court held the injury "was proximately caused by accident," saying: "If the claimant while engaged in his work had wet his feet by stepping into a spring and freezing had resulted therefrom, it could scarcely be claimed that the in- jury was not proximately caused by accident. ' ' 21 An employee, engaged in carrying coal from a wagon into customer's houses, had his toes and fingers frostbitten, making necessary the amputation of some of his fingers. It was held that the injury was accidental and arose out of the employment. 22 A janitor froze his big toe while intermittently for 1% hours shovelling snow and attending to a fire in a furnace. The freez- ing of the toe resulted in the amputation of his leg. This was held to be an accident, as the employee was more exposed to the 1-9. State ex rel. Virginia & Rainy Lake Co. v. District Court St. Louis Co., 138 Minn. 131, 164 N. W. 585 (1917). 20. McMahaman's Case, 224 Mass. 554, 113 N. E. 287, 12 N. C. C. A. 313. 21. Ellingson Lumber Co. v. Indusrital Comm. of Wis., 168 Wis. 227, 169 N. W. 568, (1918) ; 3 W. C. L. J. 215, 17 N. C. C. A. 1003. 22. Days v. TrimuDer & Sons, 176 N. Y. App. Div. 124, 162 N. Y. Supp. 603. 370 PERSON AL INJURY OR DEATH BY ACCIDENT. 192 risk of freezing than the generality of workers, and the added risk was because of the character of the employment. 23 An employee came home in the evening from work with his feet frozen. There was conflict in the testimony as to in which de- partment of the defendant's plant he had worked. The court held that under the evidence, the frozen foot, which resulted in the employee's death might have been frozen while at work, while going to work, or any one of numerous places. The judgment for the plaintiff was reversed. 2 * While rolling logs in the woods on an exceptionally cold day, a log roller froze his toes. It was held that he suffered an acciden- tal injury. 28 An employee who froze his fingers while harvesting ice when the temperature was 30 below zero, suffered an accidental injury. 28 Where a workman froze his fingers on a moderately cold day there being no sudden drop in temperature, and he was exposed to only ordinary risk of the community, it was held that he did not suffer an accidental injury. 27 Generally injuries suffered from so called acts of God, such as freezing, do not constitute accidental injuries unless the injured workman is exposed to greater risk of freezing than are the or- dinary persons of the community. 28 Where a workman was employed at carting ashes in an exposed place on an exceptionally cold day, his exposure being greater than the exposure of the community, and his hands became frozen while doing such work, he suffered a compensable injury. 29 23. State ex rel. Nelson v. District Court Ramsey Co., 164 N. W. 917, 138, Minn. 260, 1 W. C. L. J. 97. 24. Davis v. Fowler Packing Co., 101 Kan. 769, 168 Pac. 1111. 25. Link v. Millard, 4 N. Y. St. Dep. Rep. 385. 26. Cole v. Callahan & Sperry, 4 N. Y. St. Dep. Rep. 348. 27. Ketron v. United Railroads of San Francisco, 1 Cal. I. A. C. Dec. 628; Laspada v. Public Service By. Co., 38 N. J. L. J. 102. 28. Fensler v. Associated Supply Co., 1 Cal. I. A. C. Dec. 447. 29. D. J. Shanahan v. Clifford E. Minor, 2 Conn. C. D. 622; Wm. Rainy v. The Tunnel Coal Co., 2 Conn. C. D. 646; In re Robert r. L. Cameron, 2nd A. R. U. S. C. C. 202; In re Walter Froffl. 2nd A. R. U. 8. C. C. 203; In re Oma O. Dixon, 2nd A. R, U. 8. C. C. 204. 871 193 WORKMEN'S COMPENSATION LAWS. Where an insurance solicitor froze his nose while driving twenty miles in the regular course of his business on an exceptionally cold day, from which he contracted erysipelas and died, it was held to be an accidental injury, and was compensable. 30 An employee engaged in one of defendant's power sub-stations, was frozen to death in a snow storm in the mountains, where ho had voluntarily gone with another employee. The court held that his dependents were entitled to death benefits as for acciden- tal death. 31 "Where a coal shoveler's employment required him, on a very cold day to shovel coal in a coal yard outdoors, from seven o 'clock in the morning until seven o'clock in the evening, with the excep- tion of one hour for lunch, whereby he froze his fingers', the court held that he was exposed to greater risk of being frozen than or- dinary outdoor workmen, and suffered a compensable injury. 32 Where an employee was required to stand in snow two feet deep for two hours passing lumber to another employee inside a build- ing, it was held that he was especially exposed to the danger of frostbite and that subsequent amputation of his toes was the re- sult of an accident and compensable. 33 Under the Federal Act compensation was allowed to a mail car- rier for disability from freezing due to a depressed circulation resulting from taking aspirin or some other coal tar product for rheumatism. 34 193. Friction Injuries.- Where on account of an abrasion on the thumb, sustained through the use of a chisel, microbes, 30. Margaret Larke v. John Hancock Mutual Life Insurance Co. et al., 90 Conn. 303, 97 Atl. 320, 12 N. C. C. A. 308. 31. Young v. Northern California Power Co. 1 Cal. Ind. Ace. Com. 88, 32 N. 0. C. A. 309. 32. Doherty v. Employers Liability Assur. Corp. Ltd., 2 Mass. Work- man Comp. Cas. 661, 12 N. C. C. A. 312. 33. Gillis v. Maryland Casualty Co., 3 Mass. Workman Comp. Cases 307. 34. In r Thomas Buckley, 2nd A.R.U.S.C.C. 201. 372 PERSONAL INJURY OR DEATH BY ACCIDENT. 193 entered, causing blood poisoning and death, the death was held to be the result of an accident arising out of the employment. 85 Where an employee suffered an abrasion and abscess, caused by pressing her forefinger against heads of pins while pinning shirts in a laundry, the abscess was held to be the result of accidental in- jury. 88 Where the doing of a particular piece of work requires constant twisting of the arms, the swelling of the elbow joint caused thereby is an accidental injury. 87 \Vhrre the palm of an employee's hand became inflamed and swollen from the rubbing of a shovel handle against the hand, but which caused no scratch, cut or abscess, it was held that the disabil- ity did not result from an accidental injury. 88 A disease known as ''beat hand" or ''beat knee" common io miners and acquired gradually by continued friction, is held not to be an accidental injury. 39 Paralysis, gradually acquired from riding a tricycle, incapaci- tating the employee from work, is not a personal injury by acci- dent. 40 Under the Federal Act, abscess and blind fistula, brought on by sitting on cold iron, are not compensable. 41 Applicant claimed that on March 31, while engaged in cleaning red oxide drums, her thumb was poisoned as the result of the work, that her thumb became sore, though she worked for five days after that, and on April 8th went to a hospital and had an operation per- formed for septic poisoning. A physician testified that red oxide would not injury anyone. The court found that the disability was not occasioned by accident, and denied compensation. 42 35. Fleet v. Johnson & Sons, 6 B. W. C. C. 60 C. A. ; State Industrial Comra. v. Tolhurst Mach. Works, 184 N. Y. S. 608, 7 W. 0. L. J. 136. 36. Smith v. Munger Laundry Co., 1 Cal. Ind. Ace. Com. (parti), 168! 37. Tracy v. DeLaval Separate* Co., 7 N. Y. St. Dep. Rep. 385; In rp Walter C. Curtis. 3rd A. R. U. S. C. C. 113. 38. Potter v. City of Brawley, 3 Cal. Ind. Ace. Com. 210. 39. Marshall v. East Holywell Coal Co., 7 W. C. C. 19. 40. Walker v. Hockney Bros ,2B. W. C.C.20. 41. Re Andrew Wilkes, Op. Sol. Dep. C. & L. 175. 42. Miller v. Jensen & Nicholson, Ltd., (1918), W. C. ft Ins. Rep. 51. 373 196 WORKMEN'S COMPENSATION LAWS. 1 94. Gangrene from Wound. Where Gangrene, resulting from a crushed toe, spread over the body, causing death, it was held that the death resulted from the accidental injury. 43 When the immediate cause of the death of an employee was gangrene, which developed from an injury to the foot, the court held that death resulted from the accidental injury. 44 Gangrene resulting from injury, caused by the dropping of a heavy weight upon the foot, was due to the accident. 45 195. Gastric Ulcer. Where a Chauffeur, suffering from a gastric ulcer, was cranking his employer's automobile and im- mediately afterwards the ulcer punctured the lining of the stomach, as such ulcers, according to medical testimony, are liable to do, the court held that the exertion was not the cause of the in- jury, but only the occasion, and compensation was denied. 48 196. Headaches from Eye Injury and Other Causes. "A claim is made that the claimant is prevented from working on account of headaches. It is of course quite possible that these headaches proceed from the injury, and it is not affirmatively shown that they do not proceed from the injured eye. However, the burden of proving the connection between the injury and the incapacity rests upon the claimant. "It is not permissible for the commissioner to guess in this con- nection. The danger of guessing is illustrated perhaps by head- ache cases better than by others. Headaches come from a multi- tude of causes, and it may be the barest coincidence that there has been an injury to the eye, I cannot therefore do otherwise than overrule the claim. ' ' 48 A workman who was compelled to exert himself lifting heavy weights, complained of headaches to his foreman, and medical * 43. Meyer v. Pacific Light and Power Co., 1 Cal. Ind. Ace. Com. (Part II), 333. 44. In re Wilson, 1 Bull. Ohio Ind. Com. 84. 45. Stinton v. Brandon Gas Co., 5 B. W. C. C. 426. 46. Chenoweth v. Mitchell, 2 Cal. Ind. K\TI! HY ACCIDENT. 108 ease of the heart, of long standing, the wall of one auricle being so thin that 'any exertion at all might have been the cause of its breaking.' Death was merely hastened by the exertion." 70 198. Hemorrhage .Where the claimant and his brother were lifting a heavy barrel of jelly when, for some reason, the brother slipped, allowing the whole weight of the barrel to bei thrown suddenly upon the claimant while in a stooping position, causing the claimant to suffer a hemorrhage in the lumbar region 70. Stornbaugh v. Peerless Wire Fence Co., 164 N. W. 637, 15 N. C. C. A. 635; Collins v. Brooklyn Union Gas Co., 171 N. Y. App. Div. 381, 156 N. Y. S. 957, 15 N. C. C. A. 647. ADDITIONAL CASES IN WHICH COMPENSATION WAS DENIED. 71. Johnson v. Mary Charlotte Min. Co., 199 Mich. 218, 165 N. W. 650, 16 N. C. C. A. 647, 1 W."C. L. J. 393; Coe v. Fife Coal Co., 46 Scotch L. R. 325, 2 B. W. C. C. 8, 8 N. C. C. A. 102; Black v. New Zealand Shipping Co., 6 B. W. C. C. 720, (1913), W. C. &, Ins. Rep. 480, 8 N. C. C. A. 102; Ritchie v. Kerr, S. C. 613, 50 Sc. L. R. 434, 6 B. W. C. C. 419, (1913), W. C. & Ins. Rep. 297, 8 N. C. C. A. 102; Tradder v. T. M. Lennard & Sons, Ltd., 4 B. W. C. C. 190, 8 N. C. C. A. 104; Ohara v. Hayes, 44 I. L. T. 71, 3 B. W. C. C. 586, 8 N. C. C. A. 104; Spence v. William Baird & Co., Ltd., 1912 S. C. 343, 49 Sc. L. R. 278, 5 B. W. C. C. 542, W. C. Rep. 18, 8 N. C. C. A. 104; Hawkins v. Powell's Tillery Steam Coal Co., 1 K. B. 988, 80, L. J. K. B. 769, 104 L. T. 365, 27 T. L. R. 282, 55 Sol. J. 329. 4 B. W. C. C. 178, 8 N. C. C. A. 104; Beaumont v% Underground Elec. Rys. Co. of London 1912 W. C. Rep. 123, 5 B. W. C. C. 247, 8 N. C. C, A. 105; Powers v. Smith, 3 B. W. C. C. 470; Hallett v. Jevne Co., 2 Cal. I. A. C. 259; In Re Stith, Ohio Ind. Comm. No. 24574 11 N. C. C. A. 180; Nolan v. N. Eng. Gas. Co., 2 Mass. Ind. Ace. Bd. 417; Ohara v. Employer's Liability Ins., 2 Mass. Ind. Ace. 369, 11 N. C. C. A. 178; In re Roland K. Chambers, 3rd A. R. U. S. C. C. 124; In re Chas. J. Petterson, 3rd A. R. U. S. C. C. 124; In re Richard Morrisey, 2nd A. R. U. S. C. C. 161; In re Peter Sweeney, 2nd A. R. U. S. C. C. 163; Lightbown v. American Mutual Liability Assur. Corp. 2 Mass. Ind. Ace. Bd. 243, Amesbury v. Vacuum Oil Co., 9 N. Y. St. Dep. Rep. 339; Grant v. Morse Dry Dock & Repair Co., 9 N. Y. St. Rep. 401; Re P. C. Well Op. Sol. Dep. C. & L. P. 453; Welch v. Employer's Liability A&sur. Co., 1 Mass. I n d. Ace. B. J. 39. 85. Kemp v. Clyde Shipping Co. Ltd., 119 L. T. R. 131, (1918), 17 N. C. C. A. 875. 86. Poccardi v. Public Service Comm., 75 W. Va. 542,84 S. E. 242; Jordan v. Decorative Co., N, Y. App. , 130 N. E. 634, 1921. 382 PERSONAL INJURY OR Hi;\TII BY ACCIDENT. 200 result of a particular strain causing a suddi-n protrusion of the in- testine." 87 "While an employee was lifting bundles of paper weighing from 40 to 60 pounds, -which work he had done regularly every day for 7 years, he felt a pain which indicated to his physician, upon examination, that he had sustained a rupture. There was no blow or unusual exertion, nothing out of the ordinary to suggest to the employee that anything he then did caused the pain. * * No attempt was made to prove that the lifting could have produc- ed the rupture which later developed. Hernia is a disease arising out of natural causes as well as from accident, and it was there- fore incumbent upon the claimant to offer some evidence that the employment caused or could have caused the injury." 89 Where an employee 's rupture was caused by an attempt to move a 600 pound gas engine, the injury was held to be accidental, though the strain caused the rupture because the tissues were weak and not normal. 89 Compensation was denied for the death of a workman due to strangulation of hernia, alleged to have been brought on by a fall. Evidence showed that the workman sustained a fall but fail- ed to show that the fall in any way caused or accelerated the rup- ture. 00 Hernia caused by violent coughing is not compensable in the ab- sence of a showing that the cold, which caused the coughing sp-'il, was brought on by unusual exposure. 91 Compensation was denied on the ground that it was not an "ac- cidental injury" where applicant, a civil engineer, in the perform- 87. Bell v. Hayes Ionia Co.. 192 Mich. 90, 158 N. W. 179; Casper Cone Co. v. Industrial Comm. 165 Wis. 255, 161 X. W. 784, 14 N. C. C. A. 537; Hurley v. Selden-Breck Const. Co* 193 Mich. 197, 159 N. W. 311, 14 N. C. C. A. 529. 88. AJpert v. Powers, 223 X. Y. 97, 119 X. E. 229, 2 W. C L. J. 106. 17 N. C. C. A. 789. 89. Robbing v. Original Gas. Engine Co.. 191 Mich. 122. 157 X. W. 437. 14 N. C. C. A. 530; In re Otto GJorud, 2nd A. R. IT. S. C. C. 107; In re Edward Adair. 2nd A. R. U. S. C. C. 109. 90. Marshall v. Sheppard (1913), 6 B. W. C. C. 571; In re James Mi- kolaseK, 2nd A. R. U. S. C. C. 106. 91. In re Geo. L. Schneider, 3rd A. R. U. S. C. C. 118. 383 200 WORKMEN'S COMPENSATION LAWS. ance of his duties, lifted a heavy block of timber, at which time he felt a sharp burning pain in his right groin, though he did not slip or fall nor did the timber he was lifting, in any manner strike him, and it was 10 days later before he noticed a swelling at or about the place he felt the burning pain. The court said: "Noth- ing out of the ordinary happened, because he had lifted such tim- bers before, when such action was necessary in the performance of his duties ; and down to the time of the hearing he had remain- ed at work continuously. It seems to us that these facts conclu- sively shoAv that claimant did not receive an accidental injury within the meaning of the act." 92 Where the deceased suffered from chronic myocarditis prior to an operation, performed for the relief of a hernia, and he died from this disease 6 weeks after the operation, an award in favor of deceased's widow was reversed, where the evidence did not sus- tain the allegation that the effects of the operation were the cause of his death. 93 In denying compensation to an employee, who, while lifting an iron beam weighing between 30 and 90 pounds, and which he had occasion to lift as many as 100 times a day, sustained a rupture on one of these occasions, the court said: "We ar of the opinion that an employee who receives an injury in the nature of a hernia, while engaged in his usual and ordinary employment, without the inter- vention of any untoward or accidental happening, is not within the provisions of the compensation act, which as we have held provides compensation for accidental injuries only. ' ' 4 The duties of an employee of a school district required him to lift, carry and throw cord wood into furnaces. He went from his house to the school, on the day of the injury, in good health. Upon his return he was found to be suffering from a hernia. When submitting to an operation" it was discovered that he was 92. Tackles v. Bryant & Detwiler, 200 Mich. 350, 167 N. W. 36, 17 N. C. C. A. 789, 1 W. C. L. J. 1031. 93. Tucillo v. Ward Baking Co., 180 N. Y. ACT?. 302, 167 N. Y. Supp. 666, 15 N. G. C. A. 637, 1 W. C. L. J. 439. 94. Kutschmar v. Briggs Mfg. Co., 197 Mich. 146, 163 N. W. 933, 15 'N. C. C. A. 523. 384 PERSONAL INJURY OR DEATH BY ACCIDENT. 200 suffering from another hernia of previous origin. An operation was performed for the two and infection resulted in both wounds, causing death. It was contended that it was not shown whichj wound became infected. In disposing of this contention, the cxmrt, after briefly referring to the evidence, said that it was a reason- able conclusion to draw that both incisions were infected during the operation and that the fatal blood poisoning would have taken place even if the injured man had only been operated upon for the injury arising from the accident. The court stated the general rule, namely: "If an accident necessitates an operation and death ensues, even though it is not a natural or probable consequence, the death may, if the chain of causation is unbroken, be said to have in fact resulted from the injury." 96 Where the wife of an "engine tamer" sought compensation for the death of her husband, following an operation for a hernia, alleged to have resulted from a strain received in the course of the employment, compensation was denied because of lack of any direct or circumstantial evidence to prove that the hernia was due to an accident received during his employment. The court said : "Declarations made by one injured to his attending physician are admissible in evidence when they relate to the part of his body injured, his suffering, symptoms, and the like, but not if they re- late to the cause of the injury."'* Where an employee aggravated two hernias by straining the muscles of his back while lifting a heavy steel girder, and death resulted later, the trial court found that the death was due to th< accident, which finding was held to be conclusive. 97 95. Eddies v. School District of Winnipeg No. 1, 22 Manitoba 240, 21 W. L. R. 214, 2. W. W. R. 265, 2 Dom. L. R. 696, (1912). 14 N. C. C. A. 542 96. Chicago & A. R. Co. v. Indus. Bd. of III., 274 111. 336. 113 X. E. 629. 14 N. C. C. A. 541. 97. New York Switch and Crossing Co. v. Mullenbach, 92 N. J. L. 254. 103 Atl 803, 2 W. C. L. J. 346; 17 N. C. C. A. 865; Gartner v. N. Y Dairy Produce Co., 179 N. Y. App. Div. 950; Coons v. Endicott Johnson & Co., 181 N. Y. App. Div. 963. 168 N. Y. S. 1105; Bellaflore v. Roman Bronze Works. 181; N. Y. App. Div. 910, 167 N. Y. S. 1088; Fleming v. Robert Gair Co, 176 N. Y. App. Div. . 162 N. Y. Supp. 298, 14 N. C. 385 W. C. -25 200 WORKMEN'S COMPENSATION LAWS. Claimant alleged that he strained .himself while lifting rock and suffered an internal rupture and hernia. The arbitration board refused compensation on the ground that it was not satisfied that the hernia was not present at the time the claimant alleged that he strained himself. On appeal, the court held that there was no evidence of a pre-existing hernia, nor any condition which would support the contention that a hernia had existed and that it was aggravated by the strain, which according to the only evidence given, had taken place. Compensation was allowed. 98 Where a brewery assistant strained himself while lifting a cask, which resulted in a rupture in the same place where there was a rupture some years previous, the court held that this new rupture was due to the accidental strain, and compensation was allowed." "Where a trial court found that an employee had sustained a femoral hernia as the result of an accident, and that the injury was permanent unless relieved by an operation, it should have allowed compensation for a permanent injury, with leave to the employer to apply for a modification of the order if the employee unreason- ably refused to submit to an operation. 1 An employee claimed to have accidentally received a strain be- cause of being compelled to sustain a heavy weight, which resulted in a left inguinal hernia. At the time he made no claim of the injury, as he felt no pain. The commission briefly reviewed the evidence and dismissed the claim on the grounds that a traumatic hernia is accompanied with sufficient pain to make its appearance C. A. 543; Scales v. West Norfolk Fanners' Manure & Chem. Co., 1913, W. C. & Ins. Rep. 165, 3 N. C. C. A. 277. 98. Cbzoff v. Welsh, 18 Dom. L. R. 8, 28 W. L. R. 449, 1914, 14 N. C. C. A. 540. 99. Brown v. Kemp, 6 B. W. C. C. 725, 14 N. C. C. A. 535; Boggelyn v. Coronada Hotel & Frankfort Gen. Ins. Co. 1 Cal. I n d. Ace. (part 2), 276. 1. McNally v. Hudson & M. R. Co., S7 N. J. L. 455, 95 Atl. 122, 10 N. C. C. A. 185 Yukanovitch v. Mass. Employees' Ins. Ass'n, 2 Mass. Wkm. C. C. (1914), 787, 10 N. C. C. A. 188, Kline v. Indus., Comm. 101 Wash. 365, 172 Pac. 343, 2 W. C. L. J. 167. 386 PERSONAL INJURY OR DEATH BY ACCIDENT. 200 known to the workman at the time it happens and a complaint should be made to someone at the time.- An employee, apparently in good health, suffered from a strain while lifting, and two days later was found to be suffering from a rupture, necessitating an operation, which resulted in death. The medical testimony was to the effect that the rupture was caused by the lifting. It was held that the death was caused by an accident. 8 Straining, blows and other accidents resulting in hernia, or aggravating previously existing conditions of hernia, are compen- sable. Hernia sometimes presents difficulties of evidence as to IN cause, and calls for the testimony of surgical experts, the doubt l>einr whether the hernia is traumatic or due to disease. 4 Claimant sought compensation for a hernia, alleged to have been caused by an injury received while putting back the cover of the furnace. Medical testimony tended to show that the rupture was of long standing and that there was no indication of a recent injury. Compensation was denied on the ground that the burden of showing that the claimant was injured by accident, was not discharged. 5 When- an incomplete hernia, sustained as the result of an in- jury, was rendered complete by the rough handling of a physician of the insurance carrier, it was held that the resulting disability was due to an injury. 1 " 1 A fireman who suffered a hernia as the result of a fall, was 2. "Wilson v. Allis Chalmers Co., Wis.. Ins. Com.. 3rd Ann. Rep. 70, (1914). 3. Poccardi v. Public Serv. Com., 75 W. Va, 542, 84 S. E. 242, 8 N. C. C. A. 1065; Voorbees v. Smith-Schoonmaker Co., 86 N. J. L. 500. 92 Atl. 280, 7 N. C. C. A. 646; Andreini v. Cudahy Packing Co. et al. 1 Cal. Ind. Ace. Com. Dec. 8, 6 N. C. C. A. 390. 4. Ulrlch v. Lenox Coat Apron and Towel Supply Co., 3 N. Y. St. Dep. Rep. 380; 171 X. Y. App. Div. 958, Mooney v. Weber Piano Co., S. D. R. Vol. 5, p. 396, August 11. 1915; 172 N. Y. App. Div. 917, January 18. 1916. 5. Na*y v. Solvay Process Co., 201 Mich. 158, 166 N. W. 1033. 17 X. C. C. A. 252, 1 W. C. L. J. 1049. 6. Clark v. Kennedy. 3 Cal. I. A. C. 125. 387 204 WORKMEN'S COMPENSATION LAWS. allowed compensation during actual disability and for disability, following an operation. 7 201. Housemaid's Knee. A plumber, while performing his ordinary duties, was compelled to rest upon his knees for long periods of time, which caused what is known as ''Housemaid's Knee," a disease of the knee cap. This was held to be a compen- sable injury under the Connecticut act. 8 202. Hydrocele. Where a delivery boy, after several falls from his bicycle, was operated upon for hydrocele, the existence of Which was observed by the physician at the time of the first accident, the physioiian testifying that it was then admitted as having existed before that, the proof of accidental origin of the injury was insufficient, and compensation was refused. 9 Where an employee slipped and fell injuring his testicle which developed into a hydrocele, he sustained a compensable injury under the Federal Act. 10 203. Hydronephrosis of Kidney. A grocer's clerk under- took to lift a heavy sack of coffee and injured his back, necessitat- ing an operation for a condition of hydronephrosis of the kidney. It was found that the applicant was suffering from a floating kid- ney prior to the injury but the stricture was the result of the lift- ing and caused a kink in the ureter. It was held that the disability was caused by the accidental injury sustained in the course of the employment. 11 204. Hysterical Blindness. Claimant sustained a blow on the head which impaired his vision, and for a long time after the wound in the head had healed claimant believed, because of neu- rotic conditions, that his eyesight was still impaired, It was 7.. O'Brien v. Holmes, 37 N. J. L. J. 116. See also 6 N. C. C. A. 390, 406. 8. Roberts v. Hitchcock Hdw. Co., 1 Conn. C. Dec. 213. 9. Young v. Paris, 2 Cal. I. A. C. Dec. 518. 10. In re Mons Anderson, 2nd A. R. U. S. C. C. 113. 11. Walters v. Brune, 2 Cal. I. A. C. D. 249, 10 N. C. C. A. 770. 388 PERSONAL INJURY OR DEATH BY ACCIDENT. 205 held that this condition was traceable to the accidental injury, and compeusable. 12 Where a girl was knocked down by a swinging door and total blindness resulted from a disability known as hysterical blindness, the injury was held to be due to an accident, and compensation for total disability was awarded. 13 That the workman, but for want of sufficient will power, could have thrown off the condition of hysterical blindness and neurosis caused by the injury, did not deprive him of his right to compen- sation. 14 205. Hysterical Paralysis. An axe fell 45 feet upon the right shoulder of applicant inflicting a ghastly wound. Prompt medical aid effected a healing of the wound, but the applicant was unable to use his arm, and professed a total paralysis of the arm and partial paralysis of the side although there was no physical derangement apparent. The accident board said, "While there is some difference of opinion among the physicians testifying as to whether or not the paralysis of applicant's arm is wholly functional and due to hysteria, all agree that, up to the time of giving their testimony, applicant Santini has suffered a total paralysis of the right arm and is unable to perform manual labor, and that he is not a malingerer. The difference between a malinger- er and a hysteric is that the malingerer claims disability when he knows he has no right to do so, and the victim of hysteria claims disability in the unshakable conviction that he is disabled. In the language of Dr. McClenahan, an excellent authority on the subject, 'His injury is just as real to him as though it actually existed." Compensation was awarded for total disability." Where the disability immediately caused by an accident had been cured, but a condition of hysterical paralysis and nervous spasm, amounting to a trumatic neurosis, existed, compensation was 12. Hurlowske v .American Brass Co., 1 Conn. W. C. D. 6. 13. Boyd v. Y. M. C. A., 3 Cal. Ind. Ace. 62. 14. In Re Hunnewell, 220 Mass. 351, 107 N. E. 934. 15. Santini v. Mammoth Copper Mining Co., 1 Cal. Industrial Ace. Comm. Dec. 161, 11 N. C. C. A. 32, note. 389 206 WORKMEN'S COMPENSATION LAWS. awarded pending disability, upon condition that if the sufferer should refuse hospital treatment at expense of the employer, com- pensation payments should be discontinued. 16 Hysterical neurosis which comes as a result of an injury, en- titles the one injured to compensation during the continuance of the disability arising from that cause. 17 A woman, in an effort to avoid injury from a broken pulley flying from a machine, strained her left leg and fell against a machine, causing her to suffer from traumatic neurasthenia. It was held that even though this disease exists only in the mind of the sufferer as a hysterical condition she had no power to prevent this mental condition, a nd lis entitled to compensation 1 fotr the re- sults of the accidental injury. 18 Claimant received personal injuries in an automobile accident arising in the course of his employment, and developed traumatic neurosis, resulting in loss of will power. This was held to be a compensable injury. 19 206. Infection. Where an employee's work caused his hands to become chapped and to bleed and while his hand was in this condition it became infected, the court held that it was not necessary to determine the exact source of the microbes that entered the hand, it being sufficient that the poisoned hand results from the injury, through the crack opening and becoming pois- oned. 20 Claimant was employed as a strainer of mahogany. Through the use of aniline dye his hands became cracked, and infection re- sulted, Reversing the action of the board, the court said, "If the injury to the claimant accurred by reason of the character of his employment, he is precluded from recovery, because the act 16. Ream v. Sutter Butte Canal, 11 N. C. C. A. 1048, 2 Gal. Ind. Ace. Comm. 187. 17. Linser v. Consumers Ice and Coal Co., Mich. Wkm. Comp. Cases (1916), 61. 18. Lucy Brewster v. W. H. Hemingway & Sons Soap Co., 1 Conn. Comp. Dec. 128. 19. Wm. R. Smith v. H. I. Smith, 1 Conn. Comp. Dec. 628. 20. Saddington v. Inslip Iron Co., Ltd., 1915, W. C. & Ins. Rep. 46, 17 N. C. C. A. 881; State Industrial Comm. v. Tolhurst Mach. Co., 184 N. Y. S. 608, 7 W. C. L. J. 136. 390 PERSONAL INJURY OR DEATH BY ACCIDENT. 206 does not provide compensation for those suffering injury from occupational diseases. The claimant has failed to show that the infection resulted from an accident." 21 Claimant, who submitted to vaccination against her will, develop- ed acute mastoiditis, lymphatic infection. In reversing an award in her favor, the court said: "It seems quite clear that claimant lias failed to show any connection between her employment and the infection following vaccination. There was nothing in her employment which made her more susceptible to the reception of the prom i tli;m if she wnv elsewhere. The risk of infection was such ;ni 416 PERSONAL INJURY OR DEATH BY ACCIDENT. 222 died in six weeks of myocarditis arteriosclerosis, which existed at the time of the operation and prior thereto. It could not be said that the operation hastened the death from this cause or caused it, and compensation was denied. 28 221. Myositis. Myositis resulting from an accidental in- jury is compensable under the Federal Act. 80 222. Nephritis. A cellar boy was compelled in the per- formance of his duties to flush out hot pulp from the floor of the basement, by means of water coming through a hose from the exhaust of the engine. On his way home at noon he became chilled after having become wet and overheated at his work. He develop- ed nephritis which incapacitated him from work for considerable time. The court held that the illness of the claimant was due to an accident arising out of and in the course of his employment. 31 A carpenter received a blow on the back in the* course of his em> ployment and later acute nephritis developed, which lowered his vitality and power of resistance until pulmonary tuberculosis became active, causing death. The court held that "the acci- dental injury suffered by the employee aroused the latent germs of the disease to which he was predisposed, materially accelerated the disease and caused his death earlier than it would otherwise have occurred. " 32 Where an employe, having lost control of a bogey, which he was using to come down the employer's line of railway, jumped, and sustained injuries, which aggravated a previous condition of nephritis, and as a result of such aggravation death resulted sooner than it otherwise would, the court held that the applicant did not have to prove that death would not have resulted from this pre- existing disease but for the accident. It was sufficient if the ap- 29. Tucillo v. Ward Baking Co., 180 App. Div. 302 167 N. Y. Supp. 666 (1917), 15 N. C, C. A. 637. 30. In re James Wood. 2nd A. R~ U. 8. C. G. 122. 31. United Paperboard Co. v. Lewis. 64 Ind. App , 117 N. E. 276, 16 N. O. C. A. 887. 32. Retmler v. Cruse. (Ind. App.). 119 N. B. 32, 17 N. C. C. A. 870. 1 W. C. L. J. 971. 417 W. C. 27 222 WORKMEN'S COMPENSATION LAWS. plicaiit showed that death occurred sooner than it would have been brought about by the disease, if the .disease had not been accelerated by the accident. 33 An employe was struck by a boom at the end of a trolley pole when a trolley wire broke. The blow, together with a shock of electricity from the wire, brought on a condition of acute nephritis and total blindness. This was held to be a compensable injury. 34 The Commissioner held that the claimant succeeded in establish- ing the causal connection between the injury received in the course of his employment and his disability, immediately caused by nephritis^ where two physicians who had known him previous to the accident, and one who had not known him until subsequent to the accident, testified that his disability resulted from the in- juries, while another physician testified that the disability was due to old age and disease. 35 Where an employee was exposed to severe cold after falling from a trestle, and later Bright disease or nephritis developed, the commission held that the disease was due to the accidental injury and exposure, and compensation was allowed. 30 An employee sought compensation for disability resulting from nephritis, alleged to have been brought on through the inhalation of sulphuric acid fumes. Medicial testimony showed that dis- ablity might result from the inhalation of sulphuric acid fumes, but that nephritis did not result from snch cause. Compensation was denied. 37 An overheated employee was exposed to a damp, cold draft while in an overheated condition, and was stricken with severe pains in the elbows and between the shoulder blades, resulting in in- abilty to use his hands, elbows, shoulder and legs. The injury was diagnosed as multiple neuritis, and was held to be a compensable injury. 38 33. Golder v. Caledonian .Ry., 5 F. 123, 400 Sc. L. R. 89, 10 N. C. C.A, 764; In re Hickman (Dec. 1913) Op. Sol. Dept. of L. P. 751. 34. Cooper v. Mass. Employees Insur. Ass'n., ; 2 Mass. W. C. C. 573. 35. Cody v. Bmch, 1 Conn. Comp. Dec. 447. 36. Gale v. Petroleum Development Co., (1916), 3 Cal. I. A. C. 363; In re Elton W. Riley, 3rd A. R. IT. S. C. C. 128. 37. Costain v. Carson Chemical Co., (1916), 3 Cal. I. A. C. 334. 38. Re Charles J, Withy, Qp. Sol. Pep. L., p. 273. 418 I I KSONAL INJURY OR DEATH BY ACCIDENT. 223 Because of insufficient evidence to show any casual connection compensation was denied where death resulted from nephritis al- leged to be due to a blow on the testicles. 89 223. Occupational Diseases. " 'Occupation' has been defined by the courts of this (Ohio) and other states to be 'that particular business, profession, trade, or calling, which engages the time and efforts of an individual.' In other words, the em- ployment in which one regularly engages, or the vocation of one's life. A disease contracted in the usual and ordinary course of events, whch from the common experience of humanity is known to be incidental to a particular employment, is an occupa- tional disease, and not within the contemplation of the work- men's compensation law r ." So where an employee was required to heat paint in an enclosed room, and through the inhalation of poisonous gases arising from the heated paint, death re- sulted, the court held that the accidental and unforseen inhaling by an employee, in the course of his employment, of a specific volatile, poison or gas, resulting in injury or death, is not an occupational disease. 40 An employee engaged in staining mahogany suffered from chap- ped hands, resulting in infection. The court held that the injury occurred by reason of the character of the employment and the act makes no provision for compensation to those suffering from oc- cupational diseases. 41 39. In re John H< Cutler, 3rd A. R. U. S. C. C. 128; In re E. E. Hosking, 2nd A. R.U. S. C. C. 170. 40. Industrial Com. of Ohio v. Roth, et al., 98 Ohio St. 34, 12 N. E. 172 17 N. C. C. A. 342. 2 W. C. L. J. 829; Industrial Commission of Ohio v. Brown Ohio 110 N. E. 744. The Ohio Constitution has been amended to authorize Compensation for occupational diseases. Since the decis- ions, mentioned in this section changes have been made in the laws of some of the states. Occupational diseases are now specifically in- cluded by the Calif. Conn. Porto Rico, Hawaii and Ohio (1921) Acts. N. Dak. by decision of Bureau. Mass, by interpretation. Excluded specifi- cally by following Acts; Ala., Del., Idaho. Ind., la.. Ky.. Mo., Mont.. Neb., S. Dak.. Tenn., Utah. Md. and Minn. Oregon excluded by implication. Michigan, Utah and Texas excluded by interpretation. 41. Jerner v. Imperial Furniture Co., 200 Mich. 265, 166 N. W. 943. 17 N. C. C. A. 344, 1 W. C. L. J. 1066; McOauley v. Imperial Wollen Co., 261 Pa. 312, 104 AU. 617, 2 W. C. L. J. 933; Hiers v. John A. HaU& Co.. 164 N. Y. S. App. 863. 419 223 WORKMEN'S COMPENSATION LAWS. Where an employer rejected the act, and an employee suffered an injury in ! a mine, caused by the foul air therein, and sought recovery of damages in a common-law action, the court said that the question as to whether an occupational disease was covered by the Iowa compensation act was not in the case, but in defining what such a disease it said: "An 'occupational disease' suffered by an employee, if it means anything as distinguished from a disease caused by an actionable wrong or injury, is neither more nor less than a disease which is the usual incident or result of a particular employment in which the workman is engaged, as distinguished from one which is caused or brought about by the employer's failure in his duty to furnish him a safe place to work. If the employer fails in his duty to furnish a safe place to work and the employee is injured, the liability of such employer can not be avoid- ed by calling such injury an occupational disease. This in- jury having been actionable before the enactment of the workmen's compensation law, was no less actionable afterwards." 42 A cigar maker who suffered from Neurosis as a result of his sitting posture while rolling cigars for over twenty -five years, was denied compensation because this was held to be an occupational disease. The court said: "No case has gone so far as to hold that a 'neuresis of the nerves' supplying certain muscles, resulting from a posture which causes the employee 'to bend with shoulders for- ward so as to induce pressure on the brachial plexiis is a personal injury. The words 'personal injury' in their connection in this statute, do not naturally lend themselves to a situation such as that here disclosed. * * * It awards compensation for disease when it rightly may be described as a personal injury. A disease of mind or body which arises in the course of employment, with nothing more, is not within the act. It must come from or be an injury, although that injury need not be a single definite act but may extend over a continuous period of time. Poisoning, blindness, pneumonia, or the giving way of heart muscle, all in- duced by the necessary exposure or exertion of the employment, fall within well-recognized classes of personal injuries. On the 42. Gay v. Hocking Coal Co., 184 Iowa 948, 169 N. W. 360, 17 N. C. C. A. 346. 420' PERSONAL INJURY OR DEATH BY ACCIDENT. 223 other hand the gradual breaking down or degeneration of tissues caused by long and laborious work is not the result of a personal injury within the meaning of the act. 48 A lead grinder, seventy-two years of age, who had been engaged in the same employment for more than twenty years, and who became incapacitated as the result of lead poisoning or plumism, suffered a "personal injury" within the meaning of the Massachu- setts Act which omits the words, "by accident." 44 Claimant contracted lead poisoning while employed by a manu- facturer of white lead, and became sick and disabled by reason thereof. Compensation was denied on the ground that it was an occupational disease. 46 Where a workman contracted lead poisoning from working in a room where fumes were arising from molten lead, compensation was denied under the Connecticut act, as the disease was occupa- tional and not a personal injury. 48 "Where a chambermaid contracted dermatitis which resulted in infection of the hands, compensation was denied on the ground that this disease is seldom due to any accident arising out of and happening in the course of employment, although it may be an injury arising out of such employment. In this case the trouble began with what is generally regarded as an occupational disease occurring without the happening of any accident. 47 A boat builder bruised his knee, from which an abscess formed. Medical experts testified that the injury could only come from 43. In re Maggelet, 228 Mass. 57, 116 N. E. 972, 1 5 N. C. C. A. 520. But see Pimenthals Case Mass. 127 N. E. 424. 44. Johnson v. London Guar. & Ace. Co., Ltd., 217 Mass. 388, 104 N. E. 735, 4 N. C. C. A. 843. See also, In re Hurle 217 Mass. 223, 104 N. E. 336. 45. Industrial Com. of Ohio v. Brown, 92 Ohio St. 309, 110 N. E. 744, 14 N. C. C. A. 843; Adams v. Acme White Lead Works, 182 Mich. 157, 148 N. W. 485, 6 N. C. C. A, 482, Bennetts Case, Comm. of Ind. of Vt. 1918. 46. Miller v. American Steel and Wire Co, 90 Conn. 349, 97 Atl. 345. 14 N. C. C. A. 842; Re claim of Peters, Vol. 1, Bull. Ind. C. of Ohio for Dec. 1914, pg. 25. 47. McDonald v. Dunn, 2 Cal. I. A. C. D. (No. 1, 1915), 71. 8 N. C. C. A. 1091; LJondale Bleach, Dye & Paint Works v. Riker, 85 N. J. L. 426, 89 Atl. 929, 4 N. C. C. A. 718. 421 223 WORKMEN'S COMPENSATION LAWS. an accident in such employment. The commission found that the bursitis was not due to occupational disease, but to injury as alleged, and awarded compensation. 48 Of interest and value in this connection is the recertt de- cision of an English court in a suit for damages at common law, on account of injuries suffered, due to occupational disease. "Where a person undertakes to do work which is intrinsically dangerous, notwithstanding that reasonable care has been taken to render it as little dangerous as possible, he no doubt voluntarily subjects himself to the risks inevitably accompanying it, and can- not, if he suffers, be permitted to complain that a wrong has been done him, even though the cause from which he suffers might) give to others a right of action. For example, one who has agreed to take part in an operation necessitating the production of fumes injurious to health, would have no cause of action in respect of bodily suffering or inconvenience resulting therefrom, though an- other person residing near to the seat of these operations might well maintain an action if he sustained such injuries from the same cause." 49 "Where an employee, engaged in operating sheet steel finishing rolls, was blinded and invalided by the strong glare of powerful lights from the glittering surfaces he had to inspect, compensation was denied, the court holding this to be an occupational disease, not compensable under the Ohio Act. 50 Housemaids knee, while an occupational disease common to plumbers and those compelled to work on their knees, has been held to be compensable under the Connecticut act, the commission holding that the date of the injury is the time when the injured person by reason of his illness became unable to work. 51 Where a traffic officer had to stand on his feet eight hours a day, and flat feet or broken arches resulted, compensation was 48. Porter v. Anderson, 1 Cal. I. A. C. D. (No. 24, 1914), 46, 8 N. C. C. A. 1093. 49. Smith v. Baker i& Sons, (1916) A. C. 325, 60 L. J. Q. B. 683, 65 L. T. 367, 13 N. C. C. A. 1084. 50. Zajkowski v. American Steel and Wire Co., 258 Fed. 9, 4 W. C. L. J. 579, 169 C. C. A. 147. 51. Robert v. Hitchcock Hdw. Co., 1 Conn. C. C. D. 213. 422 PERSONAL INJURY OR DEATH BY ACCIDENT. 223 awarded on the ground that the employment especially exposed him to the danger of such injury and that therefore it arose out of and was proximately caused by the employment. 52 A workman who contracted pneumonia by wading through wet drifts and working in wet garments in response to an emergency call, in the course of his employment, will not be denied compen- sation on the ground that this was one of the probable consequences of his employment and therefore an occupational disease. 83 Where an employee suffered from eye strain, brought on gradual- ly by the constant use of her eyes extending over a period ofj seven weeks, compensation was denied. 64 A workman employed by a coach painter contracted lead poison- ing. This was held to be a compensable injury under the British Workman's act. 65 Under the British Act one who had been employer by several different employers, and is found to be suffering from an occupa- tional disease, may recover compensation in the first instance from the employers in whose service he spent the twelve months im- mediately preceding the disablement. 50 Where the occupational disease progressed during several dif- ferent employments, compensation should be assessed according to the degree of progress the disease attained under each contract of employment, and not according to the time spent in the diffm-n' employment*. 91 An occupational disease must manifest itself during the contract of employment, otherwise the burden is upon the claimant to es- tablish that it arose out of the employment. 58 v While an employee was engaged in snapping and stripping string beans in a cannery, she noticed a blister or sore upon her 52. R. M. Hedden v. State Conip. Ins. Fund, & City of San Diego, 5 Cal. I. A. C. D. 1. 53. Linnan,e v. Aetna Brewing Co v 1 Conn. W. C. C. D. 677. 54. Cochran v. Elizabeth A. Fenton, 1 Conn. W. C. C. D. 690. 55. Pears v. Gibbons, 6 B. W. C. C. 722. 56. Merry & Cunningham v. McGowan, 8 B. W. C. C. 344. 67. Ban-on v. Seaton Burn Coal Co., 8 B. W. C. C. 218. 68. M'Laggart v. Wm. Ban- & Sons, 8 B. W. C. C. 377; Russell v. Keary (Sch. Ct of Session) 8 B. W. C. C. 4'0. 423 223 WORKMEN'S COMPENSATION LAWS. thumb which later became infected, requiring the amputation of the thumb, this was held to be an accidental injury, and not an oc- cupational disease. 59 A druggist who, suffering from constant irritation of his eyes, due to poor lights in his working quarters and the fumes arising from the chemicals, was denied compensation for the disability, the com- missio'n holding that the injury was due to an occupational dis- ease. 60 "Where a fiireman developed a case of lobar pneumonia following exposure and a wetting while fighting a fire, compensation was denied, the court holding that the ' ' pneumonia was brought on, not by an accident but what was in the nature of an occupational disease an event which was an incident to his regular employ- ment." 61 "Where an employee had worked for 38 years in a zinc reducing plant and there was no evidence in the record showing any arsenic- al or lead poisoning prior to the injury for which compensation was sought, and the employee is suddenly stricken with lead pois- oning, the court, holding that the disease was an accident and not an occupational disease, said: "The second objection to the judg- ment is that Adrian (deceased employee) died from an occupation- .al disease incident to the business of smelting zinc. A disability caused in that way or from that source is not to be regarded as an accident, because such a disease has its inception in the occupation and develops over a long period of time from the nature of the occupation and not from any unusual or unforeseen cause or event. For the prevention of such diseases there ia a stat- ute (Occupational Diseases Act 'J. & A. Par. 5433') requiring the employer to use certain precautions for the safety of the em- ployee and an action may be mantained against the employer for failure to comply with the provisions of the act ("Wilcox v. In- ternational Harvester Co. of America 278 111. 465, 14 N. C. C. A. 728, 116 N. E. 151). For such failure the injured employee is 59. Pettit AT. Mendenhall, 2 Cal. I. A. C. 238. 60. Boehme v. Owl Drug Co., 2 Cal. I. A. C. 520. 61. Landers v. City of Muskegon, 196 Mich. 750, 163 N. W. 43, 14 N. C. C. A. 947. 424 PERSONAL INJURY OR DEATH BY ACCIDENT. 225 is not confined to the compensation provided by the workmen's compensation act nor limited by the amount provided by the act. For nearly 50 years in the active operation of the plant of the plaintiff in error a case of lead or arsenical poisoning had never been known, and the plaintiff in error would have had a perfect de- fense to the death of Adrian on the ground of the failure to obey the statute relating to occupational diseases. There was no evi- dence tending in any degree to prove that the arsenical poisoning of Adrian was a disease incident to the occupation of plaintiff in er- ror."" Occupational neuritis resulting from constant work at a type- writer is, under the Federal Act, held to be a compensable injury arising out of the employment. 88 224. Osteomyelitis. A workman who was engaged in mov- ing rails, backed into a prop with the result that the rail struck him a blow on the thigh. He continued work for some time, until excessive pain forced him to quit. A physician pronounced the case to be osteomyelitis and septicaemia and advised an immediate operation, which resulted in death. Medical testimony claimed that osteomyelitis might result from a blow. It was held that the death was caused by an accident. 84 225. Osteosarcoma from Fall. Where an employee claimed to have slipped on a stairway and osteosarcoma to the bone of the 62. Matthiessen-Hegeler Zinc Co. v. Ind. Bd., 284 111. 378, 120 N. E. 249. 17 N. C. C. A. 342; Dragovich v. Iroquois Iron Co., 109 N. E. 999, 269 111. 478, 10 N. C. C. A. 475; Prey v. Kerens-Donnewald, Coal Co., 271 111. 121, 110 N. E. 824; Armour & Co. v. Industrial Board, 273 111. 590, 113 N. E. 138; Chicago & Alton R. Co. v. Industrial Board, 274 111. 336, 113 N. E. 629; Suburban Ice Co. v. Industrial Board, 274 111. 630; Bloomington D. & C. R. Co. v. Industrial Board, 276 111. 454, 11 4 N. E. 611; Ohio Bldg. Safety Vault Co. v. Industrial Board, 115 N. E. 149, 277 111. 96; Albaugh- Dover Co. v. Industrial Board. 278 111. 179, 115 N. E. 834; Squire-Dingee Co. v. Industrial Board, 281 111. 359, 117 N. E. 1031. 63. In re Catherine A. Flynn, 3rd, A. R. U. S. C. C. 129. 64. Mills v. Dinnington Main Coal Co. Ltd., 1917 W. C. & Ins. Rep. Rep. 390. 425 227 WORKMEN 'S COMPENSATION LAWS. knee developed within twenty four hours, compensation was denied on. hearing the medical testimony, and because the employer was predjudiced by lack of notice. 65 226. Over Work. In the absence of evidence of an acci- dent, compensation was denied for the death of an? officer who worked almost continuously day and night for several days in loading a ship, and died of heart failure six days after the ship left port. The medical testimony was that thej death was due to the continuous strain of overwork. 66 Where a girl suffered a physical and mental breakdown and aggravation of an old injury as a result of lifting heavy crates and doing other heavy work that was,' beyond her physicial powers, it was held that this wa.i an injury arising out of the em- ployment. 67 Where an employee suffered from a cerebral hemorrhage caus- ed by heat and overexertion, together with diseased arteries, which terminated in paralysis, compensation was allowed. 68 An injury is within the act when caused by a strain from rush- ing work under a time record efficiency system, whereby a stror.g, healthy man was kept under a high nerve racking tension during every minute of an eight hour work day. 69 227. Palmer Abscess. Where a foreigner suffered from a palmer abscess, caused by the entrance of a sliver into the palm of hir? hand, compensation was allowed for the( injury and doc- tor bills. 70 An empolyee received an injury to his hand by reason of ex- treme pressure exerted while cutting a coil of wire with a shears, 65. Marcontonio v. Charles iFrancis Press, (1916), 9 N. Y. St. Dep. Rep. 390. 66. Black v. New Zealand Shipping Co., 1913, 6 B. W. C. C. 720; In re Frederick E. Walker, 2nd, A. R. U. S. C. C. 155. 67. Pidgeon v. Maryland Casualty Co., 2 Mass. Ind. A. Bd. 348. 6& Bell v. Hayes Ionia Co., 192 Mich. 90, 158 N. W. 179, 14 N. C. C. A. 532. 69. In re Manning Op. Sol. Dept, Labor, 279. 70. In re Panasuk, 217 Mass. 589, 105 N. E. 368, 5 N. C. C. A. 688. 426 PERSONAL INJURY OR DEATH BY ACCIDENT. 228 from which resulted a palmer abscess, and a septic condition without any viable external wound. This was held to be a coni- pensable injury- 71 An employee wag continually handling a hammer, and develop- ed an abscess on his hand as a result of a break in the callous on the palm. Compensation was allowed for the accidental injury, despite the fact that no definite time could be assigned to the oc- currence of the break. 72 While an employee wa9 cranking an, engine it kicked back and injured his hand which injury developed into a palmer abscess. This was held to be an accidental injury. 78 228. Paralysdg. An employee was awarded compensation for paralysis following heavy lifting. The court reversed the findings because it appeared that the Industrial Board made its award on a finding that the applicant, prior to the time he became
  • this method of blasting, it was held to be due to accident. 12 A workman met with an accident to his arm, was taken to a hos- pital, the arm placed in splints, and he was sent home. The next day he was found to be suffering from acute pneumonia, from which he died. It was held that death had resulted from the in- jury. " 9. Henry v. Fuller Co., 179 N. Y. App. Div. 952, 165 N. Y. Supp. 1091. 10. In re Bently, 217 Mass. 79, 4 N. C. C. A. 559, 104 N. E. 432; In re Raymond, Mass. W. C. Rep. (1913), 277; Favro v. Board of Public Library Trustees, 1 Cal. Ind. A. C. D. (No. 15, 1914) 1, 6 N. C. C. A. 627; Shirt v. Calico Printers' Assn., Ltd., 78 L. J. K. B. 528, (1909), 2 K. B. 51, 100 L. T. 740, 25 T. L. R. 451, 53 Sol. J. 430, 2 B. W. C. C. 342, 6 N. C. C. A. 628; Jendrus v. Detroit Steel Products Co., 178, Mich. 266, 4 N. C. C. A. 864, 144 N. W. 563, L. R, A. 1916A, 381, Ann. C. 1915D, 476. 11. Wittelberger v. Rach, 181 Mich. 463, 4 N. C. C. A. 915; Bayner v. Riverside Storage and Cartage Co., 181 Mich. 378, 4 N. C. C. A. 916, 148 N. W. 412, Wiereum v. Nachtegall Mfg. Co., Mich. L A. Bd. 4 N. C. C. A. 916; Merritt v. Traveler's Insur. Co., 2 Mass. W. C. C. 635; Tanner v. Aluminum Castings Co., Mich. , (1920). 178 N. W. 69, 6 W. C. L. J. 3S7. 12. Kelley v. Auchenlea Coal Co., Ltd., 1911 S. C. 864, 48 Sc. L. R. 768; S B. W. C. C. 417 ,4 N. C. C. A. 911 . 13. Cameron v. Port of London Authority, (1915), 5 B. W. C. C. 416; 4 N. C. C. A. 909. 433 W. C. 28 232 WORKMEN'S COMPENSATION LAWS. A debilitated workman, who had injured his knee, contracted pneumonia as a result of being compelled, because of the pain in his knee, to take a long time to get home on a cold day. This was held to be an accidental injury, compensable under the English act. 14 Where a workman, hired as a member of a fire brigade to help protect his employer's property, was 'wet to the skin with water, and inhaled smoke, while fighting fire, 40 feet from his employer's premises, and died of lobar pneumonia, his death was held to have resulted from an injury. 15 "Where an employee fell 3 feet and landed in a sitting position, and complained of pain and stiffness for a few days, and about a week later he was seized with convulsions, and died from pneu- monia, compensation was denied on the ground that no connection was shown to exist between the accident and the cause of the pneumonia which resulted in death. 16 A night watchman fell and fractured the neck of the right femur. Later he died from static pneumonia while still in the hospital recovering from his injury. It was held that the death was due to the injury received in the course of his employment. 17 Where an employee, engaged in making shells, received scratches on his hands which became infected, causing blood poisoning, which later developed into pneumonia, which resulted in his death, com- pensation was allowed, although it was not shown just the exact time when the infection occurred. 18 14. Ystradowen Colliery Co., Ltd., v. Griffiths (1910), 2k B. W. C. C. 357, C. A. 15. In re McPhe,e, 222 Mass. 1, 109 N. B. 633, 10 N. C. C. A. 257; In Re Harry O. Walters, 3rd A. R. U. S. C. C. 135; In Re John J. McKenna, 2nd A. R. U. S. C. C. 191. 16. Senter v. Klyce, 2 Cal. Ind. A. C. 695; Currie v. Royal Indem. Co., 2 Mass. Ind. A. Bd. 174, 11 N. C. C. A. 507; Shay v. Christian Feigenspan Corp., 1 Conn. Comp. Dec. 232; Lucien v. Judson Mfg. Co. & Cal. Casualty Ins. Co., 1 Cal. Ind. A. C. part 2, 59; In Re Henry Schiller, 2nd A. R. U. S. C. C. 104. 17. Oberg v. McRoberts & Co., 6 N. Y. S. Dep. Rep. 386; Depend- ent of John Marx v. City of Bridgport, 2 Conn. C. Dec. 227; In Re John B. Wirt, 3rd A. R. U. S. C. C. 136; In Re Albert L. Gordon, 3rd A. R. U. S. C. C. 137; In Re Andrew Fletcher, 3rd A. R. U. S. C. C. 138. 18. Burvill v. Vickers, Ltd., (1915), W. C. & Ins. Rep. 563, 13 N. C. C. A. 1020. 434 PERSONAL. INJURY OR DEATH BY ACCIDENT. 232 A lineman was exposed to bad weather and developed pneu- monia, from which he died. Compensation was denied because of lack of any showing of connection between the exposure and the disease which caused the employee's death. 19 A mine inspector, after making his rounds, was compelled to wait for a time at the bottom of a shaft for a car to take him to the surface. "While waiting he was exposed to a very cold current of air from a ventilating shaft. He contracted pneumonia there- from and died. The House of Lords held this was not an acci- dent. 20 A fireman, due to the illness of a fellow fireman, was called to work at 2 a. m. He came to work through a severe snow storm, getting wet to the waist, and worked in his wet clothes for 12 hours. He arrived home exhausted, subsequently contracting a severe cold, but he worked for a week, when pneumonia developed, causing his death. The court said: "We must recognize the fact that in common speech and understanding a bodily injury, whether manifest to the senses at the time it is sustained or subsequently revealed by functional disturbance is always assignable to some definite part or organ of the body, and when caused by accident is always sustained at the time of the accident or at least during the time within which the accidental condition is operative. An accidental bodily injury therefore may be defined as a localized abnormal condition of the living body directly and contemporane- ously caused by accident; and an accident may be defined as an unlooked-for mishap or untoward event or condition not expected. The concurrence of accident and injury is a condition precedent tu 0, 17 N. C- C. A. 245, 1J9 N- E. 996 (1918). "The employee is not required to prove the exact cause of his injury. It muvt happen in the course of his employment and it must arise out of it. These facts must not be left to mere surmise and conjecture; but 51. Christian v. State Conservation Commission, - - App. Div. , 1920, 182 N. Y. Supp. 347, 6 W. C. L. J. 199. Additional cases in which it was held that there did exist a causal connection between the injury and the pneumonia causing the workman's death. Bayne v. Riverside Storage & Cartage Co., 181 Mich. 378, 148 N. W. 412; Zabriskie v. Erie R. Co., 86 N. J. Law, 266. 92 Atl. 385. L .R. A. 1917A. 315; Sexton v. Newark Dist. Telegraph Co., 84 N. J. Law, 85. 86 Atl. 451, affirmed 86 N. J. Law, 701, 91 Atl. 1070; Bryant v. Pissell. 84 N. J. Law, 72, 86 Atl. 458; Hulley v. Moosbrugger. 88 N. J. Law, 161. 95 Atl. 1007, L. R. A. 1916C, 1203; Jackson v. Erie R. R. Co.. 86 N. J. Law. 650, 91 Atl. 1035; Delaware, L. & W. R. R. Co. v. Hardy, 59 N. J. TAW, 35, 34 Atl. 986. 53. Tackles v. Bryant ft Detwiler Co., 200 Mich. 350. 167 N. W. 36, 1 W. C. L. J. 1031; In re Henry C. Smith, 3rd A. R. U. 8. C.C. 105. 441 233 WORKMEN'S COMPENSATION LAWS. it is not essential that he should prove the precise cause which pro- duced the injury." Beans Case, 227 Mass. 558, 116 N. E. 826 (1917). The evidence and the inferences that may fairly and rea- sonably be drawn therefrom must sustain the finding of a compen- sable accident without the necessity of resorting to inferences drawn from other inferential facts. 54 Where there was no direct proof) of suicide, the presumption against it in favor of an accident is sufficient to sustain an award, where an elevator operator was found dead at the bottom of an elevator pit. 55 Where a seaman disappeared overboard from a deck that had a three and! one-half foot railing around it, the court said that in spite of the presumption against suicide, he was unable under the circumstances to infer "that death of the deceased was due) to an accident. " 53 It was held that the claimant had not sustained the burden of proving that deceased's hernia, from which he died arose out of the employment and was caused by some violent physical exer- tion and these facts could not be inferred from the mere fact that he was engaged in heavy work. The hearsay testimony of a fellow workman was held not competent. 57 ' ' It was not necessary for the dependent to exclude the possibili- ty that her husband's death might have been due to an apoplectic shock, as suggested by the insurer but only to satisfy the board by a fair preponderance of the evidence that it was due to a fall from the trestle. Such an external accident is indicated by all the facts and supported by the age and physical condition of the employee when see'n a few minutes before he was found under the trestle." 58 54. New Castle Foundry Co. v. Lysher (Ind. App.) 120 N. E. 713. 55. Wishaless v. Hammond; Standish & Co., 201 Mich. 192, Ii66 N. W . 993. Westmans Case 118 Me. 133, 106 Atl. Rep. 532, 4 W. C. L. J. 213, (1919) But see Grand v. Fleming Bros. Co., la. , 176 N. W. 640, 5 W. C. L. J. 688. 56. Rourke v. Holt & Co. W. C. & Ins. Rep. 51 Ir. L. T. 121. 57. Chicago & A. R. Co. v. Industrial Bd. of 111., 274 111. 336, 113 N. E. 629, 14 N. C. C. A. 542. 58. In re Uzzio 228 Mass. 331, 117 N. E. 349, 17 N. C. C. A. 255. 442 PERSONAL INJURY OR DEATH BY ACCIDENT. 234 Accident cannot be proved by hearsay testimony alone. 89 Proof of an accident must be based upon something more than a mere guess, conjecture or surmise, though it may be proved by circumstantial as well as direct evidence. 60 "The record does disclose that the deceased sustained an in- jury, and during his disability received compensation; but it is further incumbent upon the claimant to show, by competent evi- dence from which fair inference could be drawn, that his death resulted from the injury. This the claimant has failed to do, and compensation for the death must therefore be denied." 61 Where it was entirely a matter of conjecture as to whether an employee had fallen and suffered his injuries as a result of a slight dizziness that occasionally seized him, or had fallen over some nails, the court reversed the finding in claimant's favor. 82 "When the employee dies at his post of duty, a presumption may reasonably be entertained that he was then performing his duty and engaged in the work for which he was employed, from which a causal relation between his employment and the accident may be inferred."** 234. Proximate Cause. In so far as the disability of the employee is the natural consequence of the accident compensation should be awarded; but in so far as it is due to the "employee's 68. McCauley v. Imperial Woolen Co., 261 Pa. 312, 104 Atl. 617. 60. Peoria Ry. T. Co. v. Indus. Bd. of 111., 279 111. 352, 116 N. E. 651, 15 N. C. C. A. 632; Ohio Building Vault Co. v. Indus. Bd. 277 111.96, 115 N. E. 149, 14 N. C. C. A. 224; Swift & Co. v. Indus. Comm 287 111. 564, 122 N. E. 796, 4 W. C. L. J. 35 (1919) 61. Perry v. Wood-ward Bowling Alley 196 Mich. 742, 163 N. W. 52, L. R. A. 1916 A, p. 133; Retmierv. Cruse (Ind. App.) 119 N. E. 32, 1-W.C. L. J. 971. 62. Wilson v. Phoenix Furniture Co., 201 Mich. 531, 167 N. W. 839, 17 N. C. C. A. 785. 63. Hills v. Blair, 182 Mich. 22, 148 N. W. 243, Bemel etc. Co. v. Loper. 64 Ind. App. , 117 N. E. 527; Papinaw v. Grand Trunk etc. Co., 189 Mich. 448, 155 N. W. 545; Wishcalees v. Hammond, 201 Mich. 192. 166 N. W. 933; Mailman r. Record P. & M. Co. 118 Me. 172, 106 Atl. 606, 4 W. C. L. J. 205, (1919). 443 234 WORKMEN'S COMPENSATION LAWS. own wilful refusal to submit himself to a safe and simple medical treatment," compensation should be denied. 64 "The evidence was that an operation for the removal of a cata- ract is neither serious nor dangerous to an ordinary person in good health and a very large majority of such operations are suc- cessful. * * * The question was whether the total loss of sight was attributable to the accident, which caused the slow growth of a cataract, or to an unreasonable refusal to have the cataract, which caused the loss of vision, removed. * * * Under the finding the loss of sight should be attributed to such refusal and not to the accident. ' ' 65 "Before the defendant is to be charged, in law or morals, with the duty to compensate him, the claimant shall first discharge the primary duty owing to himself and society to make use of every available and reasonable means to make himself whole. This, in our opinion, he has not done, and the defendant seems to have discharged the burden of proving that the claimant's refusal to submit to the operation to relieve him is unreason- able." 66 Where the result of a proposed operation was problematical the court held that it could not be said that .the applicant acted' in a willful, unreasonable or negligent manner, and therefore that compensation should not under the circumstances be re- duced or terminated because of his failure to undergo the proper operation. 67 "Under the law in force prior to the workmen's compensation act the principle was well established that a person injured by the negligence of another must use ordinary care to avoid ag- gravating or prolonging the effects of such injury, and that he 64. Lesih v. Illinois Steel Co., 163 Wis. 124, 157 N. W. 53 : 9, 15 N. C. C. A. 80. 65. Joliet Motor Co. v. Indus Bd. of 111., 280 111. 148, 117 N. E. 423, 15 N. C. C. A. 75. 66. Kricinovitch v. American Car & Foundry Co., 192 Mich. 687, 159 N. W. 362, 15 N. C. C. A, 80. 67. Marshall v. Ransome Concrete Co , 33 Cal. App. 782, 166 Pac. 846, 15 N. C. C. A. 82, Bruce v. Taylor & Maliskey, 192 Mich. 34; 158 N. W. 153. 444 PERSONAL INJURY OR DEATH BY ACCIDENT. 234 cannot recover for an increase of disability caused by his failure to use such care. * * * An additional injury to McCay, caused by carelessly using his arm too soon, is as much a new in- jury not within the terms of the constitution or statute, as if it had occured by accident The commision, upon the facts shown, was therefore without power to award compensation for the additional disability. 68 Where there is conflict in the testimony as to whether the ac- cident or some independent, intervening cause or disease is the proximate cause of the disability or death, and the industrial board finds as a fact that one or the other was the proximate cause that finding will not be disturbed by the court on appeal. 60 Claimant's deceased fell in the course of his employment and sustained a severe fracture of his leg. Two days later he suffered an attack of delirium tremens, from which he died. It was eon- tended that the delirium tremens and not the injury was the proxi- mate cause of the death. The court said : ' ' The fact that his sys- tem had been so weakened by his intemperate habit that it was unable to withstand the effects of the injury does not thereby shift the proximate cause of death from his injury to his intem- perate habit." It appeared that the tremens would not have De- veloped had it not been for the injury and the shock following it. 70 Where particles of steel lodged in the eye of a lathe operator, and the eye became infected with gonorrhea, it was held that the loss of the eye was due to rubbing it with claimant's fingers on 68. Pacific Coast Casualty Co. v. Pillsbury, 171 Cal. 319, 153 Pac. 24, 15 N. C. C. A. 83. 69. Vogley v. Detroit Lumber Co., 196 Mich. 516, 162 N. W. 975, 14 N. C. C. A. 142; Linstendt v. Louis Sands Salt & Lumber Co., 190 Mich. 451, 157 N. W. 64, 14 N. C. C. A. 142; Deem v. Kalamazoo Paper Co., 189 Mich. 655, 155 N. W. 584, 14 N. C. C. A. 143; La Fleur v. Wood, 178 App. Div. 397, 164 N. Y. Supp. 910, 14 N. C. C. A. 143; Tanner v. Aluminum Castings Co., Mich. , (1920), 178 N. W. 69, 6 W. C. L. J. 337; Jackson v. Indus. Comm., Cal. App. , (1921), 191 Pac. 719. 70. Ramlow v. Moon Lake Ice Co., 192 Mich. 605, 158 N. W. 1027, L. R. A. 1916F. 955, 14 N. C. C. A. 295. 445 234 WORKMEN'S COMPENSATION LAWS. which were gonorrhea germs, and was not proximately due to the accidental injury. 71 "The personal injury must be the result of the employment and flow from it as the inducing proximate cause. The rational mind must be able to trace the resultant personal injury to a proximate cause set in motion by the employment and not by some other agency, or there can be no recovery. The direct con- nection between the personal injury as a result and the employ- ment as its proximate cause must be proved by facts before the right to compensation springs into being. A high degree of dis- crimination must be exercised to determine whether the real cause of an injury is disease or the hazard of the employment. , A disease which under any rational work is likely to progress so as finally to disable the employee does not become a 'Personal in- jury' under the Act merely because it reaches the point of dis- ablement while work for a subscriber is being pursued. It is only when there is a direct casual connection between the excf- tion of the employment and the injury that an award of com- pensation can be made. The substantial question is whether the diseased condition was the cause or whether the employment was a proximate contributing cause. In the former case no aAvard can be made; in the latter, it ought to be made." 72 "It is a principle of very general application that the industry should be chargeable only with those consequences arising out of accidents which are proximate and direct, and can not be held chargeable under the law as it now stands for disabilities which are only remotely consequent upon the injuries." 73 A conflict of authority exists on the question of allowing compensation beyond the normal period of disability for the par- ticular injury, where the continuing disability is proximately due to some subsequent separate or supervening cause. "This cora- 71. McCoy v. Michigan Screw Co., 180 Mich. 454, 147 N. W. 57-2, 5 N. C. C. A. 455. 72. In re Madden, 222 Mass. 487, 111 N. EL 379; Pacific Coast Casualty Co. v. Pillsbury, 171 Gal. 319, 153 Pac. 24. 73. Masich v. Northwestern Pac. R. Co., 2 Cal. Ind. Ace. Com. 539 ; In re Grafton Harcus, 3rd A. R. U. S. C. C. 130; Jackson v. Indus. Comm., - Cal. , (1921) 195 Pac. 719. 446 PERSON U. INJURY OR DEATH BY ACCIDENT. 237 mission has already held that, where recovery from injury Is de- layed by the effect of tuberculosis, syphilis or chronic varicose ulcers, compensation should be allowed only for the period for which the injury complained of would disable a person of average conditions not suffering from any of these diseases. These ex- ceptions control the present case, and it is therefore decided that applicant is not entitled to a continuance of the temporary total disability payments- from and after the 2d day of August, 1914, this date being the expiration of the longest period clearly indi- cated by the medical testimony in this case as the period during which applicant's disability would probably have continued if lie had been free from tuberculosis." 74 The above rule which is followed by the California, Mas-; chusetts, and Connecticut commissions is contrary to that of the Supreme Courts of Michigan, New York, Indiana, and the En- glish cases." (See Connecticut Act 5341 Am. 1921.) Paralysis from apoplectic stroke, three hours after a severe fail, was held to have been proximately caused by the fall. 76 Where death resulted from tubercular pneumonia following an anaesthetic for hernia operation, the death was held to have been proximately caused by the injury. The commission held that the employer took the deceased subject to his tubercular condition at the time of entering the employment, though the evidence showed that the deceased had at some time in his life before sustaining the hernia suffered from tuberculosis, it had become quiescent and caused him no disability until the hernia operation lighted up the old condition and caused the death. 77 74. Van Dalsem v. Di Frore & Pac. Coast Casualty Co., 1 Cal. Ind. Ace. Com. (part 2) 229; Johnson v. Lowe. 2 Cal. Ind. Ace. Com. 543; Ash v. Barker, 2 Cal. Ind. Ace. Com. 40; Telford v. Healy Tibbetts Const. Co., 3 Cal. Ind. Ace. Com. 41; Hatch v. I. Newman & Sons, 1 Conn. Comp. Dec. 65; Jones v. Fidelity & Deposit Co., 2 Mass. Ind. Ace. Bd. 301. 75. See aggravation of pre-existing condition. Hills v. Oval Wood Dish Co., 191 Mich. 411, 158 N. W. 214, and Borgsted v. Shults Bread Co., 180 App. Dlv. 229, 167 N. Y. S. 647, 1 W. C. L. J. 666. 76. Selaya v. Ruthven and Cerrana, 5 Cal. Ind. Ace. Com. 238. 77. Cox et al. v. California Southern R, R. Co. et al., 5 Cal. Ind. Ace. Com. 10. 447 237 WORKMEN'S COMPENSATION LAWS. Tn another case where the tuberculosis was not discovered until the employee suffered an accidental injury, though the medical testimony was to the effect that the disease was sufficiently ad- vanced to have caused the death in a few days had no injury been sustained, the commission held that the death was not proximately caused by the injury. 78 ' ' "While it may be true that over-exertion in climbing the ladder and closing the valve was the moving cause of decedent's death, yet his death would never have occurred if it had not been for his impaired heart. Under section one of the Act, the burden of proof .is upon the plaintiff to show not only that the accident arose out of and in the course of the employment, but in addition that the death of the plaintiff was not the result of pre-existing dis- ease." 79 "Proximate cause as applied to negligence law has, by defini- tion, included within it the element of reasonable anticipation. Such element is a characteristic of negligence, not of physical causation. As long as it was necessary to a recovery to have a negligent act stand as the cause of an injury, it did no harm to characterize causation in part, at least, in terms of negligence. But when, as under the compensation act, no act of negligence is required in order to recover, the element of negligence, namely, reasonable anticipation contained in the term 'proximate cause,' must be eliminated therefrom, and the phrase where the injury is proximately caused by accident,' used in the statute, must be held to mean caused in a physical sense, by a chain of causation, which, both as to time, place and effect, is so closely related to the acci- dent that the injury can be said to be proximately caused thereby. To incorporate into the phrase 'proximately caused by accident' all the conceptions of proximate cause in the law of negligence would be to lug in at one door what the legislature industriously put out at another. Proximate cause, under the law of negligence, always has to be traced back to the conduct of a responsible, human agency ; under the compensation act the words ' Proximately caused by accident' in terms relate to a physical fact only; namely, an accident. Hence if the injury or death can be traced by 78. Scott v. Birch Oil Co. et al., 5 Cal. Ind. Ace. Com. 197. 79. Rusch v. Louisville Water Co., 2 Ky. L. Dec. 152, (Jan. 1919). 448 PERSONAL INJURY OR DEATH BY ACCIDENT. 237 physical causation not too remote in time or place to the accident, thru such injury or death was proximately caused by the accident, irrespective of any element of reasonable anticipation." 80 It has been held that the accidental injury no-d not be the sole cause of his death, in order 1o entitle his dependents to compensation but it is sufficient if it be a concurring cause. 80 * 235. Quarantine. Time lost because of quarantine for u disease of a fellow employee is not compensable under the Federal Act. 81 236. Rash. In a New Jersey case, where an employee had worked in a bleachery for ten days when he was affected with a rash, pronounced to be a condition of ezcema which might have resulted from the acids used in the bleachery, the court said : "The English courts seem at last to have settled that where no specific time or occasion can be fixed upon as the time when the alleged accident happened, there is no 'injury by accident' within the meaning of the act. This seems a sensible working rule, especially in view of the provisions of the statute requiring notice in certain cases within fourteen days of the occurrence of the injury, a pro- vision which must point to a specific time." 82 237. Recurrence of Condition Due to Former Injury. Where a physician furnished by the employer discharged an employee as cured, but the disability had not fully terminated and the employee had to seek further treatment from his own physician, compensation for the additional surgical services was allowed. 83 80. Milwaukee v. Industrial Commission, 160 Wis. 238, 151 N. W. 247; Print Motor Car Co. v. Industrial Comm., 1618 Wis. 436, 170 N. W. 285, 'i W. C. L. J. 399. See Blood Poison. 80a. Miami Coal Co. v. Luce Ind. App. , 131 N. E. 824, (1921). 81. In Re J. P. B. Frederickson & Others, 2nd A. R. U. S. C. C. 222. 82. Liondale Bleach, Dye & Paint Workj v. Riker, 85 N. J. L. 426, 89 Atl. 929, 4 N. C. C. A. 713. 83. Douglas v. J. 6 J. Drug Co., 2 Cal. Ind. Ace. Com. 164 (1915), 11 N. C. C. A. 761. 449 W. C. 29 237 WORKMEN'S COMPENSATION LAW Where an employee, who suffered from a dislocation of the shoulder, was discharged in two weeks by the physician as cured, and at once sustained another dislocation of the same shoulder while bathing, compensation was allowed for the disability arising from the second injury, for the reason that the second physicial lapse was directly caused by and was an incident of the previous injury. 84 Where an employee seeks a recovery for a recurrence of his disability, he must show that his condition has changed from that which it was when the award was made for the first injury, other- wise the original award, in the absence of a distinct recurrence of disability, other than the one for which the first award was made, is final, and the petition must be dismissed. 85 Where an employee seeks compensation for a recurrence of an injury, the changes occurring in his condition since the former hearing, on which was based the award of the arbitrators, is all that may be shown, and it is error to show any condition exibt ing previous to the first award. 86 Where splints were removed too quickly from a fractured collar bone and the bone came apart again, but there was no accident, it was held that this extension of the disability was merely a con- tinuation of that due to the earlier accident, and compensation was allowed. 87 Where an employee, who broke his leg, suffered a refracture while putting on his trousers, and later suffered a further fracture through a fall on the sidewalk, it was held that the evidence was sufficient to sustain a finding that the fall and further injury were due to the original injury, and compensation was allowed. 88 84. Kordellos v. N. W. Pac. R. Co., 1 Cal. Ind. A. C. 586 (1914), 11 N. C. C. A. 762; In Re Ennis B. Helton, 3rd A. R. U. S. C. C. 111. 85. Bloomington D. & C. R. Co. v. Indus. Bd. of 111., 275 111. 120, 114 N. E. 511, 15 N. C. C. A. 391; Simpson Construction Co. v. Indus. Bd., 275 111. 366, 114 N. E. 138, 15 N. C. C. A. 391. 86. Casparis Stone Co. v. Indus. Bd. of 111., 278 111. 77, 115 N. E. 822, 15 N. C. C. A. 390; Cook v. Chas. Hoertz Sons, Mich. , 164 N. W. 64, A. 1 W. C. L. J. 888. 87. Stormont v. Bakersfield Laundry Co., 1 Cal. I. A. C. (part 2) 533. 8C. Bailey v. Indus. Comm., 286 111. 623, 122 N. E. 107. 450 PERSONAL IN.) TRY OR DEATH BY ACCIDENT. 2'M Applicant was injured by having his foot caught between a belt and a pulley, resulting in a fracture of his left leg, and upon the advice of the attending physician he returned to work be- fore the injury had entirely healed, and on his way home from work he rebroke his leg. It was held that there was really not a second accident but that the rebreaking of. the leg was a direct re- sult of the original accident. Compensation was continued. 8 " An employee received an in.jury by which the neck of the temiu was broken, six months later, while exercising his leg by walking, as directed by his physician, he slipped and refractured the bone. The bones never united after the second accident, and an opera- tion had to be performed. The operation seemed to be a success, but his stomach filled with gas a few hours thereafter, his hc.-u-t collapsed, and he died. The industrial accident commission award- ed a death benefit, and, affirming the award, the court said: ''The undisputed facts are as above stated ; and, it appearing there- from that Fleming (deceased) at the time of the second injury \\as obeying his doctor's instructions to exercise his leK IKATM |:V kOdDBNT, 254 Aii employee surt'eivd a strain, and later died of milary tuber- culosis. Medical testimony was to the effect that the conditions t'(. I lowing an injury that are necessary to cause the tubercular germ to become active were not present, and in no case could a strain cans.- the germs to become active. The court held that the evidence failed to show any relation between the injury and ihe diseased condition which caused the death. 25 Where tuberculosis of the bone developed several months subse- quent to an injury to a wrist, and evidence showed that no tuber- cular condition existed prior to the injury, it was held that this was an injury, and compensable under the California Act. 26 Compensation was denied for disability due to pulmonary tuber- culosis, claimed to have been brought on through exposure during a ride in an automobile provided by the employer for taking his men to their place of work. Medical testimony was to the effect that climatic conditions on the day of the ride had no effect on the disease, nor did the chill. It was held that there was no causal connection between the claimant's employment and the tuber- culosis; that "his employment neither produced the disease nor accelerated its progress. 27 Compensation was denied for tubercular peritonitis, alleged to have been caused by a fracture of a leg, because of insufficient evidence to show any connection between the injury and the disease. 28 An employee, while engaged in lifting a box, fell and struck his neck above the collar bone, and about nine months later he died of pulmonary tuberculosis. In affirming an award, the court said: "The evidence shows quite clearly, and the commission has found, that the disease existed before the injury, which accelerated the disease and shortened life. The injury caused a hemorrhage, 25. Albaugh-Dover Co. v. Industrial Bd. of 111. 278, 111. 179, 115 N. E. 834, 14 N. C. C. A. 545. 26. Soria v. Marshall, 3 C'al. I. A. C. 96; Stone v. S. L. Smith Co. (1916) 3 Cal. I. A. C. V 365; Lorenzo v. Begelow- Hartford Carpet Corp. 1 Conn. C. D. 216. In re James E. King, 3rd A. R. U. S. C. C. 1-M. 27. Dionne v. Fred T. Ley Co., (Mass.) W. C. Cas. No 1632. I'.'ir. IL' N. C. C. A. 314; Franklin v. U. S. Casualty Co., 2 Mass. Ind. Ace. Bd. 758. 28. Capelll v. Crawford, 6 N. Y. -8. Dep. Rep. 349. 483 254 WORKMEN'S COMPENSATION LAW which, so far as the evidence discloses, the deceased never ex- perienced before or after, and there is medical testimony to the effect that such an injury would develop the disease then existing. If an employee has a disease, and, having the same, receives an injury 'arising out of and in the course of employment,' which acclerates the disease and causes his death, such death results from such injury, and the right to compensation is secured, even though the disease itself may not have resulted from the injury." 29 An employee was crushed under a load of lumber and sustained several broken ribs, and other lesser injuries. He was confined to his bed until his death, six weeks later. An autopsy disclosed that the decedent had pulmonary tuberculosis in such an advanced stage that one lung had been entirely destroyed and the other to a considerable extent, also that he was suffering from other diseases. Three physicians testified that, in their opinion, his death was caused by pulmonary tuberculosis, and that the injuries which he had sustained were not sufficient either to cause or hasten his death. Other witnesses testified that deceased had worked continuously at hard labor until the accident, had apparently been in good health at all times theretofore, and had never been able to leave his bed thereafter. The court held that the trial court was not concluded by the testimony of the experts, and its finding that the death was caused by the injuries was sustained. 30 Where tuberculous infection developed in a wound caused by an accidental injury, compensation was allowed. 1 ' 1 Where a condition of tuberculosis, which had. been dormant, was aggravated by an accidental injury, to renewed activity, the subse- quent illness due to the renewed tubercular infection is proximate- ly caused by the accident, and compensation may be awarded there- for. In this case the medical testimony showed that the injury constituted only a sprain of the ankle, but that the accident had caused a latent tubercular condition to spring into renewed ac- tivity. 32 29. Van Keuren v. Dwight Divin & Sons, 179 N. Y. App. Div. 509, 165 ,N. Y. Supp. 1049, 15 N. C. C. A. 644. 30. State ex rel Jefferson v. District Court of Rameey Co., 138 Minn. 334, 164 N. W. 1012, 15 N. C. C. A- 645, 1 W. C. L. J. 216. 31. Festa v. Burns Co., (1916) 9 N. Y. St. Dep, Rep, 277. 32. Maurmann v. Chirhart & Nystedt, 1 Cal. I. A. C. D. 1914, 499. 10 484 PERSONAL IN.II'KY OH I>i:\TII BY ACCIDF.NT. 2")4 Where an employee suffered an injury to his wrist and the re- covery was impeded by a tubercular condition of the wrist, on the question whether the employer was liable for the prolonged dis- ability or only for the length of time which an ordinarily healthy person would be incapacitated, the commission held that: "An employer must take his employees as he finds them. An exception is made, however, where the duration of a disability is unduly prolonged by syphilis, chronic varicose ulcers, or tuberculosis, ajid in surli cases compensation will be awarded only for the longest period of disability for which a normal person sustaining the same accidental injury would reasonably be disabled. This ex- ception controls the present case where applicant was suffering from a tubercular condition." 33 Where deceased sustained injuries as a result of being thrown from the van which he was driving, when his horse ran away, and 6 months later died from tuberculosis, it was held that the finding that death was due to the injuries received was sustained by the evidence. 34 Tuberculosis is not. recognized as an occupational disease, and will not be considered as an industrial injury unless there is proof that the tubercular condition was caused by an injury/ 5 Kvidence that an employee received a slight blow on the jaw, is not sufficient to sustain an award for incapacity resulting from" tuberculosis of the cervical glands, alleged to have been brought on by the injury. 36 Where the evidence showed that the tuberculosis of the left knee developed as the result of an injury, it has been held that a previous tubercular tendency would in no way affect a right to compensation. 37 N. C. C. A. 768; Birk v. Matson Nav. Co.. 2 C&\. I A. C. D. (1915), 177, 10 N. C. C. A. 769. 33. Van Dalsem v. Dl Fiore, 1 Cal. I. A. C. D. (1914) 229, 10 N. C. C. A. 769. . 34. Beare v. Garrod, 8 B. W. C. C. 474, 10 N. C. C. A. 756. .1.1. Coates v. City of Elsinore (1916) 3 Cal. I. A. C. 269. 36. In Re Claim of T. F. Luttrell (1909) No. 852. Op. Sol. Dep. C. ft L. 1915, 219. Leary v. Traveler's Ins. Co., 2 Mass. I. A. Bd. 184. 37. Wabash R. R. Co. v. Industrial Comm., 286, 111. 194, 197. 121 N. E. 569. 485 255 WORKMEN'S COMPENSATION LAWS. A tender on a paper machine sustained injuries when his hand was caught between the rolls of the machine. As a result of the injuries, many operations were necessary, thereby reducing his vitality and accelerating a condition of tuberculosis more or less lingering, which caused his death. Compensation was allowed. 38 . 255. Tumor. A sales lady claimed that while she was takjng down a heavy coat, hanging on a rod somewhat higher than she could conveniently reach, she felt a sudden pain in her right side and groin, and claimed compensation for disability alleged to have resulted from the injury. Medical testimony showed that the applicant was suffering from a fibroid tumor of the uterus, that such tumor was in existence at the time of the accident, and the disability suffered was due to the existence of the tumor and not to the accident. Compensation was denied. 39 A workman met with a severe accident when a heavy strut fell on his back near the region of his kidneys. Later it was discovered that he was suffering from a tumor, and in an operation to remove the tumor the workman died. Compensation was allowed. 40 A carpenter, at work on his knees, strained his knee upon rising, resulting in prolonged disability. An operation revealed fibro- lipoma or fatty tnmor_ under the knee cap. which existed prior to the accident, but not causing any disability. It was held that the disability resulting from an aggravation of the diseased condi- tion was compensable. 41 Compensation was allowed for disability resulting from the aggravation of the condition of a tumor existing prior to the acci- dental injury. 42 38. Friday v. Galusha Stove Co., 181 N. Y. App. Div. 961, 168 N. Y. S. 1109; Champine v. De Grasse Paper Co., 181 N. Y. App. Div. 909, 167 N. Y. S. 1092; Callow v. Otis Elevator Co., N. Y. App. Div., Death case No. 7376, Oct. 4, 1917. 39. Cook v. Employer's Liab. Assur. Corp. Ltd., 1 Cal. I. A. C. D. (1914) 420, 10 N. C. C. A. 773. 40. Lewis v. Port of London Authority, (1914), W. C. & Ins. Rep. 299, 6 N. C. C. A. 625. 41. Globe Indemnity Co. v. Terry, 2 Cal. I. A. C. D. 682. 42. Big Muddy Coal and Iron Co. v. Industrial Bd., 279 111. 235, 116 N. E. 662. 486 PERSONAL INJURY OR DEATH BY .UVIDKNT. 254 Compensation was denied for the death of a workman alleged to have been caused by an injury sustained when a fellow em- ployee dropped a hammer, which struck the deceased, causing a tumor on the brain. The commission held that the evidence failed to sustain the allegations of claimant 43 256. Typhoid Fever. Action was brought to recover dam- ages for the death of an employee, caused by typhoid fever alleged to have resulted from contaminated drinking water furnished by !lif employer. In overruling the defendant's demurrer, which stated that the death was caused by such an injury as was within the workman's compensation act, and that the plaintiff must seek redress under that act, the court held that the words <; injured or killed" as used in the act contemplated injury or killing through outside violence accidentally applied, and not death from disease such as the one under contemplation here. 44 An employee fell from a wagon, striking his head on a car rail, and sustaining injuries which incapacitated him from work. A week later he died. In awarding compensation the commission found, "at the time of his accident, Harry Banks was suffering from typhoid fever in the incubation stage, whieh became aggra- \ated by the severe injury to his head through the consequent lowering of his resisting power, and the said disease thus aggra- vated caused his death." The court of appeals affirmed a judg- nn nt of the appellate division affirming the award. 46 Where an employee sought compensation for temporary disabili- ty caused by typhoid fever, alleged to have resulted from germs invested by drinking infected water furnished by the employer, the court said : ' ' Our statute, so far as here important, provides for compensation 'in every case of personal injury * * * caused by accident, arising out of and in the course of employment,' and then provides that the word 'accident,' as used therein shall 'be construed to mean an unexpected or unforeseen event, happening 43. Siegel v. Belknap Mfg. Co., 2 Conn. C. D. 402. 44. Robbins v. Victor Rubber Co., 21 Ohio N. P. (N. 8.) 17, 17 N. C. C. A. 785, Contra, Aetna Life Ins. Co. v. Portland Gas & Coke Co., 229 Fed. 552. 144 C. C. A. 12, L. R. A. 19166D, 1027. 46. Banks v. Adams Exp. Co.. 221 N. Y. 606, 117 N. E. 1060, 15 N. C. C. A. 638. 487 256 . WORKMEN'S COMPENSATION LAAV suddenly and violently, with or without human fault and produc- ing at the time, injury to the physical structure of the body.' ' G-. S. 1913, Sections 8203, 8230 "The evidence shows that typhoid fever is a germ disease; that it is produced by taking typhoid bacilli into the alimentary canal ; that no deleterious effects result until the bacilli taken into this canal have multiplied enormously; and that it requires more than a week after the infection for the disease to develop sufficiently for its symptoms to be discernible. The disease does not result from an event which happens 'suddenly and violently,' nor from an event which produces 'injury to the physical structure of the body' at the time it happens." 40 Where it was shown that an employee's death resulted from typhoid fever contracted from drinking impure water furnished by the employer for the use of the employees, the court, in holding that death was proximately caused by accident within the meaning of the workman's compensation act, said: "The fact that deceased became afflicted with typhoid fever while in defendant's service would not in the sense of the statute constitute a charge that he sustained an accidental injury, but the allegations go further, and state that this typhoid affliction is attributable to the undesigned and unexpected occurrence of the presence of bacteria in the drinking water furnished him by the defendant, as an incident to his employment. These facts and circumstances clearly charge that Vennen's sickness was the result of an unintended and unexpected mishap incident to his employment. These allegations fulfill re- quirements of the statute" that the drinking of the polluted water by the deceased was an accidental occurrence, while he was 'per- forming service growing out of and incidental to his employment.' It is alleged that the consequences of this alleged accident resulted in afflicting Vennen with typhoid disease, which caused his death. Diseases caused by accident to employees while 'performing serv- ices growing out of and incidental to his employment' are injuries within the contemplation of the Workmen's Compensation Act. 46. State ex rel. Faribault Woolen Mills Co. et al. v. District Court of Rice County et al., 138 Minn. 213, 164 N. W. 810, 15 N. C. C. A. 520, 1 W. C. L. J. 89. 488 PERSONA! INJURY OR DEATH BY ACCIDENT. 256 This was recognized in the case of Ileileman Brewing Co. v. In- dustrial Commission, 152 N. W. 446, and Voetz v. Industrial Com- mission, 152 N. W. 830. The English Compensation Act made em- ployers liable to employees for 'personal injury by accident arising out of and in the course of the employment.' Under this act it has been held that contraction of a disease may be caused by acci- dent." 47 Where a workman had been engaged for several years in remov- ing sewage, there was no evidence to sustain a finding that his death was due to an accident, merely because he contracted ty- phoid fever which caused his death. 48 Where an employee underwent an operation for a hernia and a few days later was found to be suffering from typhoid fever, such typhoid fever will not be presumed to have resulted from the hernia or operation, and compensation will not be allowed for the prolonged disability. 49 Decedent's leg was broken both above and below the knee by an accident arising in the course of his employment, and some time nearly a year later he contracted typhoid fever from which he died. The Board, holding that the connection between the dece- dent's condition as the result of his accident and his attack of typhoid fever was too remote, said: "Where alternative theories are developed by the evidence, one of which will fix liability upon the defendant, while the other will not, speculation is not per- mitted in order to afford a basis for a recovery." 50 257. Ulcers. An employee suffered an injury as a result of a flying piece of steel striking his eye. He sought compensation for prolonged disability due to trachomatic ulcers. In denying 47. Vennen v. New Dells Lbr. Co., 161 Wis. 371, 154 N. W. 640, 10 N. C. C. A. 729, L. R. A. 1916 A, 283. Federal Rubber Mfg. Co. v. Havollc, 162 Wis. 341. 156 N. W. 143; In re Win. Rawles, 3rd A. R. U. S. C. C. 147. 48. Finlay v. Tullamore Guardians, (1914), 7 B. W. C. C. 973, C. A. In re John J. Milstead. ?rd A. R. U. S. C. C. 161. 49. Viglione v. Montgomery Garage Co., 2 Cal. I. A. C. D. 87,; John- son v. Casualty Co. of America, 2 Mass. Wkm. C. C. 170. 60. Tennessee Blankenship v. Majestic Coal Co., claim No. 282, Work- man's C. Bd. of Ky. Bui. for Nov. 1st, 1917 to Jan. 22. 1919, pg. 153. 489 257 WORKMEN'S COMPENSATION LAWS. compensation, it was said: /'Trachoma is recognized as a disease by the medical profession and it is said not to be brought about by an injury to the eye or by foreign particles getting into the eye." 51 "Where foreign substances entered the eye of an employee dur- ing and in the course of his employment, which caused irritation and ulceration resulting in loss of the eye, the loss was due to the accident. 52 Where ulcers were caused by scratches and abrasions being the proximate cause, compensation was awarded for the disability, caused by the ulcers. 53 A healthy workman received a blow upon the stomach, causing severe pains and continuous disability, the blow having been ss- vere enough to cause internal injuries, and two months later he was found to be suffering from a duodenal ulcer. No evidence was produced sufficient to show that the ulcer existed at the time of the injury, or, if it did exist, to having been active ; but that if there did exist such a dormant ulcer the blow was sufficient to aggra- vate its condition. The accident was held to be the cause of the disability. 54 Compensation was refused for the death of an employee wh^re it was alleged 'that the death was caused by ulcers of the stomach resulting from an injury to the hand. It was held that there was no causal connection shown to exist between the injury and ihe cause of the death. 55 An employee received a blow upon the stomach, followed by dis- ability. Medical testimony and examination showed that the ill- ness was due to ulceration of the stomach, and that prior to the accident the employee had been treated for gastritis. It was held that the disability was due to natural causes. 56 51. In re LeWare, Ohio I. C. Aug. 21, 1914, 6 N. C. C. A. 897. 52. Grant v. Narlion, 1 Cal. I. A. C. 482. 53. McMullen v. Standard Oil Co., 1 Cal. I. A. C. (Part 2), 169. 54 Snyder v. Pacific Tent and Awning Co., 3 Cal. I. A. C. D. 1. 55. Twoomey v. Royal Indemnity Co., 2 Mass. I. A. Bd. 540. 56. McLean v. Brooks, 2 Cal. I. A. C. D. 288. 490 PERSONAL INJURY OR DEATH BY ACCIDENT. 257 In the absence of sufficient evidence to show that there was an injury of sufficient magnitude to cause intestinal ulcers, compen- sation was denied for the disability, alleged to have been caused by the ulcers. 87 "Where an employee suffers a bruise as the result of an injury and an ulcer subsequently develops therefrom, the employee has sustained a compensable injury. 58 Where an employee is suffering from an acute gastric ulcer, which, according to medical testimony, will puncture the walls of the stomach, and did puncture the walls of the stomach immedi- ately after the exertion of cranking his employer's automobile, such injury was not caused by the exertion. The exertion was the occasion but not the cause of the puncture, and therefore is not compensable. 59 258. Vaccination. Claimant was compelled to submit to vaccination, which was requested by the board of health. Pol- lowing the vaccination claimant was found to be suffering from "Acute Mastoiditis, lymphatic infection." An operation was performed which incapacitated claimant for a considerable tinis. Reversing the award, the court held that even assuming that the acute mastoiditis was caused by the invasion of the germs through the vaccination wound, there was a lack of evidence tending to show that the germs secured lodgment in claimant's arm in the course of her employment. The court said : It seems quite clear to us that claimant has failed to show any connection between her employment in the store of respondent and the infection following vaccination. There was nothing in her employment which made her more susceptible to the reception of the germ than if she \\ is walking upon the street or attending a theater or church. In other words the risk of infection was such and such only as that to which the general public is exposed. Claimant's injury, if it can be traced to the vaccination, arose not out of her employment with the respondent, hut through the active agency of the Detroit 57. Hyland v. Winant, Inc., 6 N. Y. St Dep. Rep. 304. 58. Hoffman v. Korn. 2 Cal. I. A. C. D. 166. 59. Chenowith v. Mitchell, 2 Cal. I. A. C. D. 75. 491 259 WORKMEN'S COMPENSATION LAW Board of Health, which for the benefit of the general public re- quested her to submit to the operation." 60 An employee submitted to vaccination against his will at the order of his superior. Later death resulted from septicaemia and the question was whether the infection of a vaccination on the arm would result in an abscess of the knee which would cause death. Upon a conflict of testimony, it was held not to be due to the vac- cination. 61 Under the Federal act an employee submitting to a vaccina- tion, ordinarily harmless, at the direction of a superior officer, and sustaining injuries thereby, is entitled to compensation. 62 "Where an employee submitted to a vaccination in obeying the orders of the Board of Health, and infection followed, incapaci- tating the employee, it was held to be a personal injury. 63 259. Varicose Veins. Applicant claimed to have suffered a strain while lifting, which resulted in varicocele, necessitating an operation. In denying compensation, the Commission said : ' ' The statute requires that the applicant establish to a moral certainty the fact of accident and that the injury was proximately caused by such accident. The applicant was unable to do this. Medical and surgical opinion is that varicocele is almost never the result of an injury, but is a gradual development, as in the case of varicose veins in general. Therefore, this application for compensation must be denied." 64 A teamster was kicked by a horse and was incapacitated by a varicocele, alleged to have been caused by the blow on the groin when he received the kick. In allowing compensation, the commis- 60. Krout v. J. L. Hudson Co., 200 Mich. 287, 166 N. W. 848, 16 N. C. C. A. 881, 1 W. C. L. J. 1048. 61. In Re Miller, Ohio Ind. Comm. No. 78, 789, Aug. 16, 1915, 11 N. C. C. A. 506. 62. Re C. B. Flora, Op. Sol. Dep. C. & L. pg. 188; Re Joseph D. Haley, Op. Sol. Dep. L. p 255. 63. Fevore v. Employers Liab. Assur. Corp., 2 Mass. I. A. Bd. 332. 64. Holden v. Maryland Gas. Co., 1 Cal. I. A. C. D. (No. 1, 1914) 11, 4 N. C. C. A. 859; In re Emil Beyer, 2nd A. R. U. S. C. C. 139; In re Jams F. O'Donnell, 2nd A. R. U. S. C. C. 139. 492 PERSONAL INJURY OR DEATH BY ACCIDENT." 2.">! ' sion said: ''The issue is not easy of determination. Ordinarily varicocele comes through gradual development and afflicts men who have to stand much upon their feet, but it is conceded by competent medical authorities that it may result from an acci- dent."" Where a foundry helper suffered from a burn, due to the spat- tering of hot iron, and later received a second burn, which aggra- vated a pre-existing varicose condition, necessitating an operation, compensation was allowed. 69 An employee sustained an inguinal hernia and was operated upon. Shortly afterward a lump was apparent upon his groin. A second operation showed that the lump was due to a varicocele, aggravated but not caused by the hernia. It was held that the em- ployee was not entitled to compensation for continued disability due to the varicocele. 67 Since the employer takes the employee as he finds him, it was held that where an employee 50 years of age, weighing over two hundred pounds, whose physical condition was so poorly that a slight injury would result in extended disability, and who was injured when a wheelbarrow fell upon him, resulting in varicose veins and other diseases, that all of the disability was compen- sable. 68 Where an employee sustains an accidental injury, which is aggravated by a pre-existing varicose condition, prolonging the disability, compensation will be allowed for the length of time the employee would have been disabled were it not for the pre-existing diseased condition. 69 An employee who was moving barrels in some way got between two barrels and jammed his scrotum, which he claims brought on a varicocele six months later. It was held upon expert testimony 65. Mitchell v. McNab A Smith. 1 Cal. I. A. C. D. (No. 7, 1914) 14, 6 N. C. C. A. 399. 66. Mustaikas v. Casualty Co. of America, 2 Mass. Wk. Comp. Cases 547. 67. Jorgensen v. Healy-Tibbits Const. Co., 2 Cal. I. A. C. D. 46. 68. Rounda & Spivock v. Heenan 3 Cal. J. A. C. D. 36. 69. Fisher T. Union Ice Co.. 2 Cal. I. A. C. 93. 493 261 WORKMEN'S COMPENSATION LAWS. that traumatism, like that suffered by the claimant, will not cause a varicocele six months after the accident. Compensation was denied. 70 260. Vertigo. Where an employee received an accidental injury, and vertigo followed, but medical testimony indicated no fracture of the skull or concussion of the brain, and that the verti- go was due to arterio sclerosis, compensation was denied, because" the disability was not caused by an accident. 71 261. Wood Alcohol Poisoning. A show card writer, who used wood alcohol for the purpose of dissolving certain dyes for use in his work, suffered the loss of his eyesight. Just prior to the accident he used an extraordinary quantity in cleaning the apparatus and his hands. This was held to be an accidental in- jury. 72 A family servant used wood alcohol in starting a fire, and was burned to death as a result thereof. This was held to be an acci- dent arising out of the employment. 73 A sign painter who used wood alcohol in his preparation of dyes, suffered from a total loss of eyesight after using an extraor- dinary amount. In distinguishing this injury from an occupa- tional disease, and allowing compensation therefor, the commission said: "The loss of the vision by poisoning by wood alcohol is not among the number of diseases standardized and commonly classi- fied as- occupational disease, and we think that without doing violence to the statute, we may reasonably regard the sudden de- struction of the vision by the use of wood alcohol as an accident. * * * We recognize that the issue is one of extreme difficulty, and that two opinions may reasonably be entertained as to the 70. Keen v. Burns, 2 Conn. C. D. 170. 71. Carter v. Llewellyn Iron Works, 2 Gal. I. A. C. 855. See Falls from vertigo or other like causes. 72. Fidelity & Casualty Co. of New York et al. v. Industrial Accident Com. of Cal. et al., 177 Cal. 472, 171 Pac. 429, 17 N. C. C A. 784, 1 W C. L. J. 903. 73. Kolaszynski v. Klie, 91 N. J. L. 37, 102 Atl. 5, 15 N. C. C. A. 160. 494 <>\ \i iN.n-KY OK DKATII i-.y ACCIDENT. 261 correctness of our decision, but we believe that the weight of authority, of justice and of sound reason is on the side of awarding compensation in this case." 74 74. Dewitt v. Jacoby Bros., 1 Cal. I. A. C. D. (1914), 170, 6 N. C. C. A. 488. 108 CHAPTER VI. ACCIDENT ARISING OUT OP AND IN THE COURSE OF THE EMPLOYMENT. Sec. 262. Arising Out Of And In The Course Of In General. ACCIDENTS SUSTAINED i*r GOING TO AND FROM PLACE OF EMPLOYMENT. 263. Going To Work In Own Conveyance. 264. Going From Work In Own Conveyance. 265. Going To And From Work In Conveyances Furnished By Employer. 266. While Walking To And From Work. 267. Going To And From Work Using Conveyances Of Third Parties. 268. Going To And From Work, On Premises Of Employer And While Passing Over Ways Of Egress And Ingress. 269. Going To And From Work Where Employment Is Not Limited To Fixed Hours. 270. Seamen And Others Employed On Vessels Injured When Getting On And Off Vessels. 271. Away From Place Of Employment On Business Of Employer. 272. Street Accidents. NOX-WORKIXG TIME INJURIES. 273. Miscellaneous Accidents Before And After Work Hours. 274. During Temporary Cessation Of Work At The Direction Of Employer And For Own Purposes. 275. Going To Report To Employer. 276. Lunch Hour Injuries, On The Premises And Going To Place Off Premises For Luncheon. 277. Going To Receive Pay. 278. Going To Answer A Call Of Nature. 279. Injuries Sustained After Work Hours, By Employees Furnished Lodgings On The Premises And To Employee Visiting The Premises On Sundays For Purposes Not Connected With The Employment. 280. Away From Place Of Employment On Own Business Or Business Other Than Employer's 281. Accidents Under Contract But Before Beginning Work, Before Actual Hiring, And After Discharge. 496 ACCIDENT ARISING OUT OP COURSE OF EMPLOYMENT. CHAPTER VI. (CONT'D) EMPLOYEES OR ANOTHER'S WILFUL MISCONDUCT. Sec. 282. In General. 283. Acts Not Constituting Wilful Misconduct. 284. Acts Constituting Wilful Misconduct. 285. Sportive Acts. 286. Added Risk To Peril. 287. Employer's Wilful Misconduct. 288. Injury Sustained While Performing Acts For Personal Con- veniences or Pleasure Of The Employee. 289. Miscellaneous Accidents Occurring Within "War Zone" And In Munition Works Together With Questions Pertaining To Em- ployees In Military Service, As Affected By Compensation Acts. "AGGRAVATION" CASES AS AFFECTED BY THE DOCTRINE OF PROXIMATE CAUSE. 290. Aggravation Of Pre-Existing Condition. 291. Aggravation Of An Injury By Subsequently Intervening Causes. 292. Accidents Occurring To Employees While Performing Acts For The Master Other Than Those Within Their Particular Line Of Duty or Whose Conduct While Performing Their Duties To The Master Places Them Outside Of The Scope Of Their Employ- ment. ASSAULTS. 293. Resulting From Controversies Connected With Or Pertaining To Employment. 294! Resulting From Controversies Not Connected With Or Pertaining To Employment. 295. Burden Of Proof To Show That The Injury Was Caused By An Accident And That The Accident Arose Out Of And In The Course Of The Employment. RULINGS AKFKCTING SPECIFIC CASES AS ARISING Our OF AND IN THE COURSE OF THE EMPLOYMENT. 296. Acting Under Unauthorized Orders. 297. Acids. 298. Act Of God. 299. Anesthetic Causing Death During Surgical Operation. 300. Anthrax. 301. Appendicitis. 497 W. a 32 WORKMEN'S COMPENSATION LAW CHAPTER VI. (CONT'D) Sec. 302. Apoplexy. 303. Apprentice. 304. Asphyxiation. 305. Assisting A Fellow Employee; Employee Of Another Employer Or A Stranger. 306. Bite Of Animals. 307. Bites And Stings From Insects And Reptiles. 308. Bone Felon. 309. Brights Disease. 310. Burns. 311. Cancer. 312. Carbuncle. 313. Charity Worker And Persons Seeking Relief From Charity Injured. 314. Chauffeur. 315. Concussion Of Brain. 316. Contagious Skin Disease. 317. Delirium Tremens. ' 318. Dislocations. 319. Drivers Injured. 320. Drowning. 321. Electrical Shock And Electrocution. 322. Emergency. \ 323. Erysipelas. 324. Explosions. 325. Exposure. 326. Eye Injuries. 1 327. Falls From Vertigo Or Other Like Causes. 328. Falling Objects. 329. Frost Bites And Freezing. 330. Gangrene Resulting From Injury. 331. Glanders. 332. Heart Disease. 333. Heat Stroke And Sun Stroke. 334. Hemorrhage. 335. Hernia. 336. Independent Contractor Doing Extra Work. 337. Infection From Various Causes. 338. Influenza. 339. Insanity. 340. Intoxication. 341. Ivy Poisoning. 342. Landslide And Snowslides. 343. Lightning. 344. Mental Shock. 498 ACCIDENT ARISING OUT OF COURSE OP EMPLOYMENT. 262 Sec. 345. Misunderstood Orders. 346. Neurosis. 347. Paralysis. 348. Pneumonia. 349. Ruptures. 350. School Teacher Injured Or Killed. 351. Self Inflicted Injuries. 352. Suicide. 353. Testing Racing Motorcycle. 354. Tetanus. 355. Toxic Amblyopla. 356. Tuberculosis. 357. Typhoid Fever. 358. Ulcers. 359. Unintentional Injury By a Fellow Employee. 360. Using Elevator Contrary To Instructions. 361. Using Machinery Other Than That Employed To Use. 362. Volunteers. 363: Watchman. 364. Window Cleaner Falling From Ledge. 262. "Arising Out Of" and "In The Course Of In Gen- eral. Compensation for disability is conditioned in most of the American Workmen's Compensation Acts and in the English Act upon the disability being due to ah accidental injury which arose "out of" and "in the course of employment." 1 North Dakota, Ohio, Pennsylvania, Texas, 2 Utah, 3 West Vir- ginia, and the Federal Act, use the phrase "in the course of employment;" Wyoming, "injured in hazardous employment;" and Wisconsin, "growing out of and incidental to the employ- ment." 4 1. Missouri, Illinois, Iowa, Kansas, Kentucky, Oklahoma, Nebraska, Tennessee, etc., City of Chicago v. Industrial Comm. 111., (1920), 127 N. E. 49, 6 W. C. L. J. 17; Brown v. Bristol Last Block Co., Vt , (1920), 108 Atl. 922, 5 W. C. L. J. 628; Fassig v. State ex rel. Turner Ohio 116 N. E. 104. B. 1 W. C. L. J. 1458; Stasmos v. State Indus. Comm., Okla. , (1921), 195 Pac. 762. 2. Lumberman's Reciprocal Ass'n. v. Behnken, Tex. Civ. App. , 226 8. W. 154, 7 W. C. L. J. 363. 3. Twin Peaks Canning Co. v. Indus. Comm., Utah , 1921, 196 Pac. 853. 4. Federal Rubber Mfg. Co. v. Havolic, 162 Wig. 341, 156 N. W. 143, 12 N. C. C. A. 793. 499 262 WORKMEN'S COMPENSATION LA\V The two elements of this phrase are discussed in an Illinois case in which the court said: "The words 'arising out of and the words ' in the course of are used conjunctively. In order to satisfy the statute, both conditions must concur. It is not suffi- cient that the accident occur in the course of the employment, but the causative danger must also arise out of it. The words 'arising out of refer to the origin or cause of the accident, and are descriptive of its character, while the words 'in the course of refer to the time, place, and circumstances under which the ac- cident takes place. Fitzgerald v. Clarke & Sons, 1 B. W. C. C. 197; Dietzen Co. v. Industrial Board, 279 111. 11, 116 N. E. 684. By use of these words it was not the intention of the Legislature to make the employer an insurer against all accident injuries which might happen to an employee while in the course of the employment, but only for such injuries arising from or growing out of the risks peculiar to the nature of the work in the scope of the workman's employment or incidental to such employment, and accidents in which the employee is exposed in a special de- gree by reason of such employment. Risks to which all persons similarly situated are equally exposed and not traceable in some special degree to the particular employment are excluded." 5 In a Minnesota case where a teacher was assaulted on her way home from school the court said; "Without determining whether the injuries to the teacher arose in the course of the employment it is held that they were not caused by accident arising out of the employment and that they are not compensable under ths compensation act," the nature of the employment not being such as to naturally invite an assault. 6 5. Mueller Const. Co. v. Indus. Board, 283 111. 148, 118 N. E. 1028, .1 W. C. L. J. 943; Dietzen v. Industrial Board, 279 111. 11, 116 N. E. 684; Hopkins v. Michigan Sugar Co., 184 Mich. 87, 150 N. W. 325, L. R. A. 1916A. 310; Morris & Co. v. Indus. Comm., 111.., (1920), 128 N. E. 727, 7 W. C. L. J. 41; Sparks Milling Co. v. Indus. Comm., 111., (1920), 127 N. E. 737, 6 W. C. L. J. 299; Weiss Paper Mill Co. v. Indus. Comm., 111., (1920), 127 N. E. 732, 6 W. C. L. J. 307; Kowalek v. N. Y. Con- sol. Ry. Co., N. Y. App. Div. , 128 N. E. 888, 7 W. C. L. J. 215, Fournier's Case Me., (1921), 113 Atl. 270. 6. State ex rel. v. District of Itasca County, 140 Minn. 470, 168 N. W. 500 ACCIDENT ARISING OUT OB COURSE OP EMPLOYMENT. 262 In speaking on thiii same subject, the Supreme Court of Massachusetts said: "An injury may be said to arise out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection be- tween the condition under which the work is required to be per- formed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work, and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it 'arises out of the em- ployment, but it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative dan- ger must be peculiar to the work and not common to the neigh- borhood. It muft be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with tha employment, and to have flowed from that source as a rational consequence." 7 In an Iowa case the court said : ' ' But it does not suffice that he was injured while in the course of his employment. It must fur- tliT appear that his injury arore out of such employment. The defendants were bridge builders who had charge of construction of county bridges in Story County. Deceased was employed by them. Decedent and others in such employment were by defend- jinls lodged and boarded on the ground where the work was done. On the night of the accident the day's work had been finished, but the employees were in the boarding tent. They had got 555. 2 W. C. L. J. 661; State ex rel. Duluth Brewing & Malting Co. v. District Court, 129 Minn. 176 151 N. W. 912; Bryant v. Fissell, 84 N. J. L. 72, 86 Atl. 458. 7. McNicols Case, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A. 306. See Milliken's case, 216 Mass. 293. 103 N. E. 898, L. R. A. 1916 A, 337; Sanderson's In re, 224 Mass. 558, 113 N. E. 355. Continental Casualty Co. v. Indus. Comm., Cal. App. (1920). 190 Pac. 849, 6 W. C. L. J. 434; Brown v. Bristol Last Block Co., Vt. , (1920), 108 Atl. 922, 5 W. C. L. J. 628. 501 262 WORKMEN'S COMPENSATION LAW through washing the dishes and were sitting there until it was time to go to bed. While thus engaged the decedent came to bis death from a stroke of lightning. Concede that he was in the course of his employment while thus in the tent awaiting his bed time, and still supervising other employees in getting ready for bed, and still there must be proof that the injury arose out of such employment. The burden is on the claimant. It is not dis- charged by creating an equipoise. It requires a preponderance. See Eisentrager v. Railway, 160 N. "W. 311, L. R. A. 1917 B , 1245; In re savage Mass. 205, 110 N. E. 283. ' ' It is not enough for the applicant to say ' the accident would not have happened if I had not been engaged in this employment, or if I had not been in that particular place.' The applicant must go further and must say 'the accident arose because of some- thing I was doing in the course of my employment, and because I was exposed by the nature of my employment to some peculiar danger.' In our opinion, the injury claimed for did not ari^.e 'out of decedent's employment." 8 In a Kentucky case the court expressed itself as follows: "Many of the courts in this country, as well as in England, have exper- rienced difficulty in determining when an accident arises 'out of the employment. The words 'in the course of employment have reference to the time, place, and circumstances while the words 'arising out of the employment relate to the cause or source of the accident. The terms 'out of and 'in the course of are not sy- nonymous, and if either of these elements is missing, there can be no recovery. The two questions are to be determined by dif- ferent tests. The words 'out of refer to the origin or cause of the accident, and the words 'in the course of to the time place, and circumstances under which it occured. So it has been said that an injury which occurs while an employee is doing what he might reasonably do at the time and place is one which arises ' out of and in the course of the employment. ' L. R. A. 1916 A., 232. "In Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458, it was held that an accident arises 'in the course of the employment' if it oc- 8. Griffith v. Cole Bros. 183 la. 415, 165 N. W. 577, 1 W. C. L. J. 368. 502 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 262 curs while the employee is doing what a man so employed may reasonably do in the time during which he is reasonably employed and at a place where he may reasonably be during that time, and it arises 'out of the employment when it is something the risk of which may have been contemplated by a reasonable person, when entering the employment, as incidental thereto. 9 Further light may be thrown on this subject by giving the view of the Ohio commission interpreting the class of act wherein it is necessary only for the injury to occur "in the course of the em-, ployment." "We have had occasion to consider the meaning of the words 'in the course of employment' as they are employed in the above-mentioned sections in a number of claims heretofore de- cided by us, and we have held repeatedly that in order to be com- pensable, the injury need not result from an accident if the in.jiuy is sustained while the employee is in the performance of services which he was employed to perform by his employer. It is true that we have not considered death from natural causes while in the course of employment, an injury sustained in the course of employment, and in claim No. 35163, where an employee was at- tacked by apoplexy or cerebral hemorrhage, from the effects of which he died, and where it appeared that the attack was not brought on by any extraordinary or unusual exertion on the part of the employee, we held that the death was due to natural causes and not to an injury in the course of employment. But the death of Anna Schwenlein was not due to natural causes. It was due to the malicious and felonious act of a fellow employee. That it was due to an injury cannot be questioned. The injury was sustained while the deceased was at work. We conclude that her death was caused by an injury while in the course of employ- ment." 10 In the conclusion the court in the Iowa case, supra, quotes with approval the following from page 73 Corpus Juris (W. C.) : 'In l 9. Hollenbach Co. v. Hollenbach, 181 Ky., 262, 204 S. W. 152, 2 W. C. L. J. 493; See. also, Feda v. Cudahy Packing Co.. 102 Nebr., 110, 166 N. W. 190, 1 W. C. L. J. 649; Pierce v. lioyer-Van Kuran Lumber & Coal Co., 99 Nebr. 321, 156 N. W. 509. 10. In re Schwenlein, 1 Bull. Ohio Ind. Com. 136. 503 262 WORKMEN'S COMPENSATION LAW determining whether an accident arose out of and in the course of the employment, each case must be decided with reference to its own attendant circumstances: and it has indeed been stated rather broadly but by eminent authority that argument by an- alogy is valueless." 11 Where an employee was killed by being struck with a bar of iron, which was pushed from the floor above by a workman in the employment of another contractor on the same building, the court said: "It remains to be considered whether the accident arose both 'out of and in the course of his employment.' For an accident to arise out of and in the course of the employment, it must result from a risk reasonably incidental to the employment. As was said by Buckley, L. J., in Fitzgerald v. Clarke & Son, (1908), 2 K. B. 796, 77 L. J. K. B. 10-18. 'The words "out of" point, I think, to the origin and cause of the accident; the words "in the course of," to the time, place, and circumstances under which the accident takes place. The former words are descriptive of the character or quality of the accident. The latter words relate to the circumstances under which an accident of that char- acter or quality takes place. The character or quality of the ac- cident as convey by the words "out of, involves, I think, the idea that the accident is in some sense due to the employment. It must be an accident resulting from a risk reasonably incident to the employment. 'We conclude, therefore, that an accident arises 'in the course of the employment' if it occurs while the em- ployee is doing what a man so employed may reasonably do w'th- in a time during which he is employed, and at a place where he may reasonably be during that time. That the findings of fact in the present case justified the conclusion that the accident to Bry- ant occurred 'in the course of his employment is beyond dispute. We are also of opinion that the conclusion of the common picas judge that the accident arose 'out of the employment was like- wise justified. We conclude, therefore, that an accident arises 'out of the employment when it is something the risk of which 11. Kitchenham v. Steamship Johannesburg, (1911), A. C. 417, 27 T. L. Rep. 504, 4 B. W. C. C. 311; Blair v. Chilton, 8 B. W. C. C. 324; Dietzen & Co. v. Industrial Board, 279 111. 11, 116 N. E. 684. 504 ACCIDENT ARISING OI'T OP COURSE OP EMPLOYMENT. 262 might have been contemplated by a reasonable person, when en- tering the employment, as incidental to it. A risk is incidental to the employment when it belongs to or is connected with what a workman has to do in fulfilling his contract of service. And a risk may be incidental to the employment when it is either an or- dinary risk directly connected with the employment, or an ex- traordinary risk which is only indirectly connected with the em- ployment owing to the special nature of the employment." '-'. The English writer Rnegg succinctly summarizes as follows the law on tliis subject, in the 8th edition of his work on Employ Liability and Workmen's Compensation, p. 373-374: "1. That the onus of proving both that the accident arose out of and in the course of the employment, rests upon the applicant. 2. That the accident does not arise out of and in the employment if it is caused by the workman doing something entirely for his own purposes: or 3. The same result follows when the workman does something which is not part of his duty towards his employer, and which he has no reasonable grounds for thinking it was his duty to do. 4. The accident may arise out of and in the course of the employment, if the act which occasioned it, although not strictly in the scope of the workman's employment, is done upon an emergency. 5. It may be said to arise out of the employment if, it being the workmen's duty to do the act, the accident arises from his doing it, in an improper manner. 6. It may arise out of and in the course of the employment, if occurring on the employer's premises, when the workman has not actually commenced his work, or after he has finished. 7. It may arise out of and in the course of the employment if, the workman's duties not being clearly de- iiued, he may reasonably have thought it a duty to do the thing in the course of which the accident occurred. 8. It does not arise out of and in the course of the employment, if occasioned by the wilfully tortious act of a fellow servant, when the risk of such mi act cannot be said to be one of the risks incidental to the service. 9. It may arise out of and in the course of the employment if, though occasioned tortiously, even wilfully, by the act of a thirl 12. Bryant v. Fissell, 84 N. J. L. 42, 86 Atl. 458, 3 N. C. C. A. 585. 505 263 WORKMEN'S COMPENSATION LAW party, the risk of injury from such acts is found to be one of the risks incidental to the employment." 263. Accidents Sustained in Going to and from the Place of Employment. A. Going to Work in Own Conveyance. Where an employee was injured when his motorcycle collided with a street car while he was on his way to get certain materials needed in the course of the employment, it was held that the accident arose out of and in the course of the employment. The court saying that the going for the goods w r as strictly within his duties. The fact that he rode upon a motorcycle which he commonly used in performing errands and in going to and from his home does not alter the case. He had the right to use such instrumentalities as were best fitted to perform his master's work. 13 Where an employee was struck and injured by an automobile while waiting to board a street car, in going from one job to an- other, it was held that the accident arose out of and in the course of the employment; the court saying: "We think it is clear from the record that the employment of the deceased was to go from place to place to trim trees, and that in the discharge of these duties it was not only necessary for him to supervise the work, but it was necessary, in the course of his employment, to proceed from one job to the other, adopting such means of locomotion as he might desire. Being clearly of the opinion that the record warrants the conclusion that at the time of the injury the deceased was within the ambit of his employment, we also think that it is a justifiable conclusion that the accident can be fairly traced to his employment as a contributing and proximate cause. It is true that in going from one place to another, as was his duty, he naturally was compelled to assume risks not in any wise con- nected with the trimming, planting, and treating of shade trees. But his employment extended further than this and necessarily obliged him, in the discharge of his duties, to go from place to place, and in so doing to assume the risks of traffic upon the streets. Where employees are compelled during the course of their 13. Coster v. Thompson's Hotel Co., 102 Neb. 585, 168 N. W. 191, 16 N. C. C. A. 905. 506 ACCIDENT ARISING OUT OF COURSE OP EMPIX)YMKNT. 263 employment to travel about the streets, it does not seem to us to In- unreasonable to say that the danger of being struck by street ears, automobiles, and traffic of every description should be taken account of. We think it must be said that the very nature of the occupation of the deceased itself exposed him to the unusual risk and danger of an accident of this nature." 14 A claim adjuster was injured while riding on one of his em- ployer's cars to the place of his employment, after serving a sub- poena. In reversing an award in claimant*! favor, the court said: "To be within the legislative intent, the work or occupation must subject the employee to the hazards contemplated by this law. The decedent was riding upon the car, not as an employee in the per- formance of a duty relating to the car, but was a passenger fdr his own personal convenience. He was subject to the same hazards as any other passenger in the car, and the hazard came, not be- cause he was operating a railroad, but because he was riding in a car, and the hazards, so far as the accident is concerned, were no greater upon the car than they would have been upon a bus or any public place where people assemble. He was not necessary to or an incident to the operation of the car, and had no duty upon the car. * * * The mere fact that an employee is in the service of a railroad company does not bring him within the act; he must be engaged in the hazardous work, or in some way be subject to the hazards arising from the nature of the work." 15 Ordinarily when an employee is injured while traveling to or from his place of work, and is not paid for the time consumed in going and coming, the means of conveyance not being furnished by the employer and Ihe employee having departed from or not yet reached the employer's premises, the injury does not arise out of the employment. 1 " 14. Kunze v. Detroit Shade Tree Co., 192 Mich. 435, 158 N. W. 851. ir. N. C. C. A. 253. 15. In re Brown, 173 App. Div. 432, 159 N. Y. Supp. 1047, 15 N. C. C V 290. 16. De Constantino v. Public Service Comm., 75 W. Va. 32, 83 S. E. 88, L. R. A. 1916A 329; Leveronl v. Travelers' Ins. Co.. 219 Mass. 48?, 107 N. E. 349. 507 263 WORKMEN'S COMPENSATION LAW Where the duties of a collector of accounts for defendant re- quired him to go to another town, and he was injured on his way there, his injury arose out of and in the course of the employ- ment. 17 An employee, who was engaged as a repairer of musical instru- ments, was permitted, but not obliged, to do work at his home, and on the morning in question he had been working in his own shop on work taken home the previous evening and he was injured by slipping on ice while going to take a car to go to his employer's store, it was held that he was not injured in the course of his em- ployment, and the injury did not arise out of his contract of employment. 18 'Where a workman who had been engaged to load a van, was promised employment in unloading if he was there upon the arriv- al of the van, met with an accident while cycling to the place, it was held that the accident did not arise out of or in the course of the employment. 19 A workman, having missed his work train, was an his way to get a pass in order to overtake the work train, when he was injured. It, was held that the relation of master and servant did not exist at the time of the injury. 20 A city employee, while going to his place of work, fell because of a defective sidewalk, and suffered a broken kneecap. Blood poisoning set in and caused death. In allowing compensation the court said: "In the instant case, when the servant reported to his foreman and received his instructions for the day and pro- ceeded to carry out these instructions by starting for the place where he was to work, we think the relation'of master and servant commenced, and that in walking to the place of work the servant 17. In re Raynes, 64 Ind. App. , 118 N. E. 387, 1 W. C. L. J. 562. 18. Indus. Com. v. Anderson, (Colo.), 169 Pac. 135, 1 W. C. L. J. 305, 15 N. C. C. A. 249. 19. Perry v. Anglo American Decorating Co., (1910), 3 B. W. C. C. 310: Slade v. Taylor, (1915), W. C. & Ins. Rep. 53, 15 N. C. C. A. 250. 20. Missouri, K. & T R. Co. v. Hendricks, 49 Tex. Civ. App. 314, 4 N. C. C. A. 114, 108 S. W. 745. 508 ACCIDENT AK1>I.\<, oi T <>K col KsK OP EMPLOYMENT. 263 was performing a service growing out of and incidental to his employment." -' Where an employee is required to go to outside places to work and to return to the employer's office to report, he is at all such times acting in the course of his employment, and is entitled to compensation if injured by accident at such times. 22 An employee injured while going aboard or leaving his ship, using the proper means, is entitled to compensation, provided his injury arises out of such employment, but if he is injured on tlic dock he is not within the protection of the compensation acts. 21 Where a sailor was drowned while returning to his ship, after a trip on shore not connected with his employment, the accident was held not to have arisen out of the employment. 24 \Yhei-e a miner sustained injuries on his way to work, it was held not to be an accident arising out of the employment. 25 A workman was given a return ticket to a dock railway and ordered to report on board a ship at seven o'clock the next morn- ing. He made use of the ticket, and when crossing the gangway he fell between the dock wall and the ship and was injured. His pay would have, commenced when he reported on board the ship. It was held that the giving of the ticket was merely a gratuitous act on the part of the employers and imposed no duty on the part of the employee to go by train, and that therefore the accident did not arise out of, nor in the course of the employment. 28 A conductor alighted from one of his employer's cars, when he was returning to work, and was struck and killed by another 21. City of Milwaukee v. Althoff et al.. 156 Wis. 68. 145 N. W. 238, 4 N. C. C. A. 110, L. R. A. 1916A 327. 22. Coleman v. Giiilfoy Cornice Wks.. Cal. I. A. C. 1 Nat. Comp. Jour. (1914) 18, 7 N. C. C. A. 428; Turgeon v. Fox Co., 1 Cal. I. A. C. D. (1914) 7, 7N. C. C. .A. 429. 23. Boucher v. Olson & Muhoney Steamship Co., 1 Cal. I. A. C. D. (1914) 12, 7 N. C. C. A. 426; Gardiner v. St. of Cal. Printing Office. 1 Cal. I. A. C. D. (1914)4, 4 N. C. C. A.859. 24. Hyndman v. Craig & Co.. 44 Irish Law Times Rep. 11, 4 B. W. C. C. 438 (1910) 3 N. C. C. A. 273 25. Anderson v. Fife Coal Co., Ltd., 1910 Court of Sessions. 8, 47 Scot Law Rep. 3. 3 B. W. C. C. 539, 3 N. C. C. A. 272. 26. Nolan v. Porter & Sons. 4 N. C. C. A. 113, 2 B. W. C. C. 106. 509 263 WORKMEN'S COMPENSATION LAW car. The court held that the accident did not arise out of and in the course of the employment, for the risks to which the employee was exposed on his way to work were in no way connected with Ws employment. The employer not providing a means of con- veying the employee to work, he was therefore a mere passenger on the car. 27 An injury occurring while the employee was riding a bicycle, has been held to arise out of the employment, where the use of the bicycle was to further the master's business, which could be done better by the use of the bicycle. As where a salesman and collector while riding a bicycle in pursuit of his employment was kicked in the knee by a passing horse. 28 But if it is used merely to accommodate the workman, a different rule prevails. Where a workman, going from one farm to another on a bicycle to look after cattle, was injured while so riding, he was not injured by an accident arising out of the employment. 29 Where an employee was injured while boarding a street car to return from an errand, on which he had been sent by his employ- er, it was held that the injury was received in the course of the employment. 30 A janitor who was ordered to report back as quickly as possi- ble after getting his lunch, took a street car and was injured on his way back to work. It was held that he was away from his place of employment for his own purposes and returning by a means of conveyance of his own choosing. His acts while away were in no way connected with his employment nor under the 1 direction of his employer; and therefore not in the coure of his employment at the time of the injury. The claim was disal- lowed. 31 27. McCabe v. Brooklyn Heights R. R. Co., S. D. R. Vol. 8, pg. 407, - App. Div. N. Y. . 28. McNiece v. Singer Sewing Mach. Co., (1911), S. S. 13, 48 Scot. L. R. 15, 4 B. W. C. C. 351. 29. Green v. Shaw, (1912), 1 I. R. 480 (1912) W. C. R. 25, 46 Ir. L. T. 18, 5 B. W. C. C. 573. 30. Brodie v. Reo Pac. Co., 1 Cal. Ind. A. C. 415 (1914), 12 N. C. C. A. 389; Wheeler v. Maryland Casualty Co., 3 Mass. Wkm. Comp. Cas. 433, 1914, 12 N. C. C. A. 389. 31. In re Frisch, Ohio Ind. Comm. No. 11, 38 (1915) 12 N. C. C. A. 389. 510 ACCiniM VUISIXG OUT OP COURSE OP EMPLOYMENT. 263 An employee was requested to meet his employer at a store ou a holiday, and in order that he might get there at the allotted time, used his own automobile- While cranking the automobile he broke hifi arm. In denying compensation the commission held that the compensation act protected him while working at the place of his employment, but that while going to and from work, his risks were the same as those of the commonaHy and not those of the business in which he was engaged. The accident did not arise out of or in the course of his employment. 82 An employee used his own motorcycle going to and from jobs, with the knowledge and consent of his employer, receiving no ox- tra compensation for its use. While cleaning the clutch of the motorcycle at the place of employment, his fingers were caught in the chain guard, resulting in traumatic amputation of the distal phalanges of two of his fingers. In affirming an award, based on a finding that the accident arcv^e out of and in tho course of the employment, the court said: "Clearly, if the motorcycle was only used for the convenience of the claimant in bringing him to and from his place of work, the case would not be within the act. But the evidence shows that from time to time it was used in the business in going to and from the w r ork off the premises, and that at other times when it had been cared for during working hours, no question had been raised by the employ- -r. It could not be used in the business unless kept in proper con- dition. The facts tlmt the workman was engaged upon it near the place of Imsiness during working hours, and that it was frequently use,l in the Imsiness, do not make the findings of the commission unreasonable." 88 An employee sustained a fracture of the leg, as a result of a collision with a street ear while riding his motorcycle. He on his usual way from his home to the store where he was employ- ed, and intended to stop at a market and buy fresh vegetables for his employer, according to his usual custom. It was held 32. Graham v. Daly Bros., 2 Cal. I. A. C. 793, 1915. 12 N. C. C. A. 386; Gordon v. Eby. 1 Cal. I. A. C. D. (1914). 13. 4 N. C. C. A. 858; Oldhani v. Southwestern Surety Co., 1 Cal. I. A. C. D. (1914) 7, 7 N. C. C. A. 4l<>. 33. Kingsley v. Doqovan. 169 N. Y. App. Div. 828, 155 N. Y. S. 801. 12 N. C. C. A. 384. 511 263 WORKMEN'S COMPENSATION LAW that while the boy was going to work on the portion of the way between his home and the market he was not engaged in his em- ployment, and that the risk resulting in the accident had no connection with the employment- 34 A fireman returning to work on a motorcycle after his midday meal collided with defendant 's automobile and was seriounly in- jured. It was held that the city street was not on the "premises of his employer," within the meaning of the Wisconsin Act (L. 1913, C. 599), and that the case did not therefore come under the compensation act. 35 A well borer was allowed to ride to and from work on his em- ployer's time. His bicycle was struck by an automobile which resulted in a facture of his leg. It was held that the accident arose out of and in the course of the employment. 36 A lawyer's clerk, who was also a court clerk, usually made the trip between the places of employment by train, but sometimes u^ed his bicycle to his employer's knowledge and without his dis- approval. One time on returning from the court on his bicycle he was struck by a motor car, sustaining injuries resulting in his death. Reversing the decision of the lower court, it war, held that the use of his own bicycle was not at the direction of the em- ployer, and that the road over which he was required to travel was not attended by any peculiar risk, nor was the bicycle such a dangerous article that its permitted occasional use made the employer liable for the consequences o-f an accident on the road. The accident did not arise out of the employment, and compensa- tion was denied. 3T Compensation was allowed for the death of a barge captain, who was drowned in the night while returning from a cafe on shore and crossing intermediate barges to reach his own. 38 34. Hummer v. Hennings, 2 Cal. I. A. C. 857 (1915) 12 N. C. C. A. 384. 35. Hornburg v. Morris, 163 Wis. 31, 157 N. W. 556, 12 N. C. C. A. 383. 36. Hiserman v. Garside, 1 Cal. I. A. C. 516 (1914) 12 N. C. C. A. 383. 37. Read v. Baker, 32 T. L. R. 382,. 60 Sol. J. 402, 140 L. T. 466, 12 N. C. C. A. 382. 38. Countrymen v. Neuman, 174 App. Biv. 900, 159 N. Y. S. 1108; Lazarick v. N. Y., New Haven & Hartford R. R. Co., 171 App. Div. 959, 155 N. Y. S. 1119. 512 ACCIDENT ARISING OUT OP COURSE OF EMPLOYMENT. 264 An employee was injured while going to assist in unloading a steam shovel. He was riding his own motorcycle and was paid for the time in going to and coming from the place of employ- ment. It was held that the accident arose out of and in the course of the employment. 39 264. Going from Work in Own Conveyance. An employee quit work, mounted his motorcycle and started for home. When riding down the street he collided with an automobile driven by another employee. He sustained injuries which resulted in his death. In holding that the accident did not arise out of or in the course of the employment, the court said: "To come within the term 'injury received in the course of employment' it must be shown that the injury originated in the work, and, further, that it was received by the employee while engaged in or about the furtherance of the affairs of the employer. If it be conceded that the injury originated in the work, it would still be necessary, in our opinion, to show that the employee was engaged in the furtherance of his employer's business." 40 An officer of a corporation was also employed in the capacity of looking after the collection of debts, and upon hearing that several debtors might be found at a certain hotel barroom, he proceeded there on an interurban car. After interviewing several debtors, he spent the evening at another hotel and at the Elks club rooms. At 11 p. m. discovering that he had missed the last interurban car, he hired a taxicab to take him home. While enroute to his home, the taxi stopped for gasoline and it was necessary for him to alight, and he was struck by another car, sustaining serious injuries. The board certified the above facts to the court with the question whether the accident arose out of and in the course of the employment. The court held that these were facts for the determination of the board and if the board 39. Cummings v. Johnson Const. Co., (1916), 9 N. Y. St. Dep. Rep. 369. 40. Indemnity Co. v. Dinkins, (Tex. Civ. App.), 211 8. W. 949 (1919), 18 N. C. C. A. 1034, 4 W. C. L. J. 294; In re Peter S. Winchester, 2nd A. R. U. S. C. C. 262; In re Julius Rosenberg, 2nd A. R. U. S. C. C. 263; Kirby Lumber Co. v. Scurlock, Tex. Civ. App. (1921). 229 8. W. 975. 513 W. C- 33 264 WORKMEN'S COMPENSATION LAW found that the business of the corporation detained him beyond the time for the last interurban car, then the board might find that the accident did arise out of and in the course of the employment, but if the business of the corporation was only incidental to a holiday afternoon and that social affairs detained him, then the board must find otherwise. 41 An employee engaged in setting up machinery at different places for his employer was killed while on his way home to spend Sunday, when the jitney he had hired was struck by a train. Upon conflicting evidence as to whether or not the employee was to leave a job before it was finished for the purpose of spending Sunday in the City, the Court held that the evidence was not sufficient to justify a finding that the accident arose out of and in the course of the employment. 42 Where a workman an his way home attempted to board a train moving up an incline and was killed in the attempt it was held that the accident did not arise out of the employ ment. 4a . "Where a workman was injured by accident on a train on which he was riding while going home from work pn a gratuitous pass, given him by his employer and which he was not obliged to use, it was held that the accident did not arise out of the employment. 44 . An employee who was paid by the hour was furnished a bicycle for his work, and while riding home one evening on the main road he- was run into and killed by a motor lorry. It was held that, since it was no part of his duty to ride home on the bicycle the accident did not arise in the course of his employment. 45 41. In re Raynes, 64 Ind. App. , 118 N. E. 387, 1 W. C. L. J. 562, 16 N. C. C. A. 909. 42. Inter. Harvester Co. of N. J. v. Indus. Bd. of 111., 282 111. 489, 118 N. E. 711, 1 W. C. L. J. 762. 43. Pope v. Hill's Plymouth Co., (1912), W. C. Rep. 15, 105 Law Times Rep. 678, 5 B. W. C. C. 175, 3 N. C. C. A. 273. 44. Whitbread v. Arnold, 1 B. W. C. C. 317, 99 Law Times 103 (1908) 3 N. C. C. A. 272. 45. Edwards v. Wingham Agriculture & Imp. Co., (1913), W. C. & Ins. Rep. 642, 109 L. T. Rep. 50, 82 L. J. K. B. 998, 6 B. W. C. C. 511, 4 N. C. C. A. 115; Cook v. Owners of "Montreal," 108 L. T. Rep. 164, 29 T. L. Rep. 233, 6 B. W. C. C. 220 (1913) 4 N. C. C. A. 115. ACCIDENT ARISING OUT OP COURSE OF EMPLOYMENT. 264 A city employee rode, home on the horse he was using. While taking it to a watering place, as was his custom, and before reach- ing the trough, the horse ran away and fatally injured the driver. It was not shown that he had any right to use the horse of his employer as a means of getting home, but to water the horse first was one of his dutirs. It \v;is held that his injury arose out of and in the course of his employment. 4 * Deceased was employed to collect cream and deliver butter. He used his own automobile, which overturned while passing an- other ear and he was killed. As was his custom deceased was taking home butter to deliver on his way. The commission found that this fact was sufficient to prove that he was still performing a service in the course of his employment and compensation was allowed. 47 A deputy marshal, riding a motor cycle, was going home when he collided with a horse and buggy and was badly injured. The accident occurred a few moments before his day's work ended and while he was going home to see his wife, intending to return to the to\vn hall and remain for the night. On his way he also intended to see about a street light which was reported as being out of order, this being part of his duties. The commission held that at the time <>f the accident the applicant was not performing any service growing out of, or in the course of his employment. lie was going home for purposes of his own and the fact that he was going to see about a street light or that it was a few moments before his lay's work ended, does not bring him within the provisions of the act." An employee had quit work and left the premises. He \va^ sitting in his buggy waiting for his son, when the horse took fright and ran away. It was held that the injury sustained in the runaway did not arise out of or in the course of the employment." 46. Pigeon v. Employers' Liab. Assur. Corp., Ltd., 216 Mass. 61, 102 N. E. 932, 4 N. C. C. A. 516. 47. Golden v. Delta Creamery Co.. 2 Cal. I. A. C. 734, (1915), 12 N. C. C. A. 386. 48. Eastman v. St. Comp. Fund, 2 Cal. I. A. C. 350 (1915), 12 N. C. C. A. 387. 49. In re McCall. Ohio I. C. No. 121401, Nov. 4, 1915. 515 265 WORKMEN 'S COMPENSATION LAW 265. Going to and from Work in Conveyances Furnished by Employer. The Claimant was taking the garbage collection equipment, part of which belonged to the city, to its usual plac3 of storage and care so that it should be ready for the work of the following day. "We can hardly conceive of a service which grows out of and is incidental to his employment as a garbage collector if this is not such a service. 50 Two employees of a tobacco company were killed when an auto- mobile, which was furnished in accordance with the terms of the contract of employment, skidded and collided with a tree. In de- ciding that the injury resulted from an accident arising out of and in the course of the employment, the court stated the established rule to be as follows : "That the emplo yer's liability in such cases depends upon whether the conveyance has been provided by him, after the real beginning of the contract of employment, for the mere use of the employees, and is one which the employees are required, or as a matter of right permitted, to use by virtue of that contract, Donovan's Case, 217 Mass. 78, 104 N. E. 431 Ann. Gas., 1915 C, 778. * * * Although the decedents, at the time of the accident, had not actually commenced their work upon the tobac- co plantation of the defendant company, it is plain that their transportation was a part of the contract of employment with this defendant. When they were injured they were not passen- gers, paying a stipulated fare for the conveyance to their work. The automobile which skidded and caused the accident in question was furnished and paid for by the defendant company. The re- lation that then existed between the women and the Sumatra To- bacco Company was that of master and servant, and not that of carrier and passenger. At the time they were injured they were laborers in the employ of the tobacco company. Pigeon v. Lan-?, 80 Conn. 240, 67 Atl. 886, 11 Ann. Gas. 371; Killduff v. Boston Elevated Railway, 195 Mass. 308, 309, 81 N. E. 191, 9 L. R. A. (N. S.) 873. This being so, the case is like Swanson v. Latham et al., 92 Com. 87, 101 Atl. 492, in which we stated that: 'An in- 50. City of Milwaukee v. Fera et al., 170 Wis. 348, 174 N. W. 926. 516 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 265 jury received by an employee while riding, pursuant to his con- tract of employment, to or from his work in a conveyance furnish- ed by his employer, is one which arises in the course of and cvit of the employment.' " ". Where a brewing Company's solicitor was driving to a place where he contemplated continuing an interview begun earlier in the day regarding certain matters connected with his employ- ment, the automobile, which he was driving and which was fur- nished by his employer for use in the business, collided with a pile of bricks and turned over killing the solicitor, the court saM : "We are of the opinion that * * * an inference can be drawn that Mr. McMinii, at the time of his accident, was on his way to the place of business of Perrigo, in the course of his em- ployment, and that the accident arose out of and in the course of his employment." 82 While an employee was waiting for a street car on his way lo work, his employer drove up in a Ford truck and requested the employee to get on the truck and go with him to the pipe yard to get some pipe and collect other pipe to take to the place where they were installing a sewer. While en route, the automobile was struck by a street car, injuring the employee. The court held that the injury occurred while the employee was performing an act which was necessarily incident to the employment and was acting at the direction of the employer. It did not matter that the ac- cident happened before they arrived at the place where the main work of the employment was to be done. An injury may occur within the course of the employment and arise out of it even though it happen while the employee is on his way to and from 51. Scalia v. American Tobacco Co. et al., and Salia v. Same. 105 All. 346, 3 W. C. L. J. 230, 93 Conn. 82; Dominquez ". Pendoia, Cal. App. , (1920), 188 Pac. 1025, 8 W. C. L. J. 3; In re Lee Madero, 3rd A. R. U. 8. C. C. 174; In re Jacob D. Snider, 3rd A. R. U. S. C. C. 175; In re Rich- ard v. Tyler, 2nd A. R. U. S. C. C. 273; Central Const. Corp. v. Har- rison, Md. App., (1920), 112 All. 627. 52. McMinn v. C. Kern Brewing Co., 202 Mich. 414. 168 N. W. 542, 17 N. C. C. A. 957. 517 265 WORKMEN'S COMPENSATION LAW his usual place of employment or while doing an act that is neces- sary to, or an incident of the employment. 53 Applicant was away from his place of employment and contem- plated taking a stage back to the place of his employment. Wli'm starting back he met a superintendent of the mine where appli- cant worked, who offered to let him ride back on trucks of thoir employer if he would assist in loading the trucks, and the owner would pay him for his labor. The offer was accepted, and on the way back applicant was injured. In denying compensation the court said that while riding back on the truck the employee was engaged in no service of his employer, and that the risk assumed was no different than if he had ridden back in the stage. The ac- cident did not arise out of and in the course of the employment. 54 An errand boy was injured while returning from an errand. The employer furnished a bicycle for use in this connection. When returning the boy caught hold of a passing truck and was thrown in front of another car when the truck suddenly turned a corner. The court held that the accident arose out of and in tbe course of the employment. 55 Where a nurse was required to use a bicycle in going to visit patients, and sustained injuries while en route, it was held that the accident was not one arising out of the employment. 56 Compensation was denied for the death of an employee, who was killed while attempting to board a moving train to go to re port to his employer. The court held that the deceased addel peril to the usual risk connected with his employment when ,''e attempted to board the moving car. The accident did not ariso out of and in the course of the employment. 57 53. Scully v. Indus. Comm. of 111,, 284 111. 567, 120 N. E, 492, 3 W, C. L J. 30. 54. Boggess v. .Indus. Ace. Comm., 176 Gal. 534, 169 Pac. 75, 1 W. C. L J 293, 15 N. C. C. A. 268; Shultz v. Champion Welding & Mfg. Co., N. Y. App. Div. (1921), 130 N. E. 304. 55. Beaudry v. Watkins, 191 Mich. 445, 158 N. W. 16, 15 N. C. C. A. 254; Dennis v. White & Co., (1917), A. C. 479, W. C. & Ins. Rep. 106, 15 N. C. C. A. 294. 56. Ince v. Reigate Education Committee, (1916), W. C. & Ins. Rep. 278, 15 N. C. C. A. 250. 57. Jibb v. Chadwick, (1915), W. C. & Ins. Rep. 342, 15 N. C. C. A. 248. 518 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 265 An employee of a street railway company was killed while crossing the street from a ear upon which he had returned to th-- car barns. The contract of employment did not provide for con- veyance to and from work on the defendant's cars. In deny in-/ compensation the court held that the decedent was in no way connected with his diities at the time of the accident, and the hazard to which he was exposed was that of the commonality. The accident did not arise out of or in the course of the employ- ment. B8 Where JIM employer, as a part of the contract of employment t'liriu lied 9. Swanson v. Latham Crane, 92 Conn. 87, 101 Atl. 492; Kowalek v. N. Y. Consol. R. Co., App. Div., 179 N. Y. S. 637, 5 W. C. L. J. 434; 519 265 WORKMEN'S COMPENSATION LAW The applicant was going to his place of employment in a wag- on furnished by the employer, when a shotgun, carried for the sole pleasure of another employee, exploded and so mangled the arm of the applicant as to necessitate amputation. Compensation wan denied, the court holding that the accident bore no relation whatsoever to the nature of the employment. The employer did not direct that the gun be carried nor did he know it was loaded. The injured employee might have objected to the presence of the gun, or at least have seen that it was unloaded. Not doing so, he cannot shift responsibility to his employer. 60 An auditing clerk was traveling upon a train of his employer from his usual place of employment to an outside office to cor- rect the books of the latter office. During the trip an accident occurred and the clerk alighted to assist, and when boarding the train he fell under the moving train, sustaining injuries which resulted in his death. It was held that in alighting to render assistance, the deceased was not performing any duty which devolved upon him arising out of his employment. 61 Where an employee took his employer's horse and carriage home, in going to dinner, which he was not supposed to do. as he was to receive his dinner at the mill where he was working, and while at his home the fly nets became entangled and he climb- ed out on the shafts to straighten them when the horse kicked and he fell between the shafts, sustaining injuries from which he was incapacitated for a month, it was held that the accident did not arise out of and in the course of his employment, and compen- sation was denied. 62 An employee engaged as a plumber going from, thie place where he was engaged in his employment, back to the employer's Lindstrom v. N. Y. C. R. Co., 174 N. Y. S. 224, 3 W. C. L. J. 514; also Larke v. Hancock Mutual Life Ins. Co., 90 Conn. 303, 97 Atl. 320, 12 N. C C. A. 308, L. R. A. 1916E 584. 60. Ward v. Indus. Ace. Com. of Gal., 175 Cal. 42, 164 Pac. 1123, 15 N. C. C. A. 223. 61. N. W. Pac. R. Co. v. Indus. Com., 174 Cal. 297, 163 Pac. 1000, 15 N. C. C. A. 219. 62. Wallace v. Duffus, 31 Sheriff Ct. Rep. 262 (1915) (Eng.) 12 N. C. C. A. 375. 520 ACCIDENT ARISING OUT OP COURSE OF EMPLOYMENT. 265 shop in a wagon that was furnished to him. He was found serious- ly injured in the roadway. The commission awarded compensation on the theory that the employee had been thrown from the wagon. The evidence which consisted wholly of medical testimony was to the effect that the organs of the body were in normal condition and that death was due to a hemorrhage. The Supreme Judicial Court reversed the decision, holding that there was no evidence to support such a finding, and that it was based merely upon conjec- ture which could not be allowed to stand. 63 Where an employee insisted upon riding upon a load of hay against the positive objections of the driver and contrary to the rules of the employer, and fell off, sustaining injuries, it was held that the accident did not arise out of and in the course of the employment. 84 Where the contract of employment included an agreement on the part of the employer to transport the workmen to and from work, and an employee was injured by the breaking down of the automobile used as the means of conveyance, it was held that the accident arose out of and in the course of employment. 65 The duties of an employee of an oil company were performed partly at the plant, and the remainder of the day he was in the field looking after business and collecting bills, etc., in an auto- mobile furnished by his employer. His employment began upon reaching the plant in the morning and terminated when he reached home in the evening. While on the way to work one morning his rnr Collided with a trolley car resulting in serious injuries to him- self. It was held that, because his work did not terminate until ho reached home in the evening, it could not be said that, as re- garding coming to work in the morning, he could avoid coming under the general rule pertaining to accidents happening while the 63. In re Sanderson. 224 Mass. 558, 113 N. E. 355, 12 N. C. C. A. 374. 64. Gonzales v. Lee Moor Contr. Co., 2.Cal. I. A. C. 325 (1915) 12 N. C. C. A. 373. Gilbert v. Employers' Llab Assur. Corp. Ltd , 1 Mass. W. C. C. 133 (1913) 12 N. C. C. A. 373. 521 265 WORKMEN'S COMPENSATION LAW employee Avas coming to and going from work. Compensation was denied. 66 Plaintiff was injured by the overturning of his employer's car in which he was being transported from his home to a place where he was to work. The plaintiff's duties as a plasterer required him to go from one job to another and upon this occasion the employer told him that certain materials were needed at the next job and he \vould send a car to transport him and the materials to the new job. The board in discussing the contention of defendant that the acci- dent did not arise out of and in course of the employment in which the general rule that an employee, when on his way to work is not in the course of his employment, was relied upon, said that while the rule might be general it was by no means a universal rule, be- cause coexistent with it is another general rule that where workmen are employed to work at a certain place by the employer, as a part of their contract of employment, the period of service continues dur- ing the time of transportation. "In this case it appears from the evidence, without any dispute, that the plaintiff was not riding in the automobile at his own solicitation or for his own convenience or purpose, but that he was riding at the solicitation of the de- fendant under his direction and for the purpose of the furtherance of his interests. Under such a state of facts, the board holds that the plaintiff's injuries were caused directly by an accident arising out of and in the course of his employment. ' ' 67 Compensation was denied for the death of a superintendent caus- ed by the overturning of his employer's automobile, in which he was riding to work. The automobile of the superintendent was broken and he asked permission to ride with the contractor in the latter 's car. It was held that there was no evidence to take the case out of the general rule that accidents on the way to and from work are not compensable. 68 Where an employer furnished his own wagon to transport his employees from the city to the place of employment and the horse 66. Zbinden v. Union Oil Co. of California, 2 Cal. Ind. Ace. Com. 590 (1915) 12 N. C. C. A. 371. 67. Yeargin v. Bode, Ind I. Bd. No. 62, 1916, 12 N. C. C. A. 371. 68. Sampo v. Yellow Aster Mining and Milling Co., 2 Cal. I. A. C. 530 (1915) 12 N. C. C. A. 370. 522 ACCIDENT ARISING OUT OP COURSE OF EMPLOYMENT. 265 ran away injuring one of the employees, it was held that the acci- dent arose out of and in the course of the employment. The com- mission saying that the moment the employee stepped into the employer's conveyance he was on the premises within the meaning of the Compensation Act. 89 An employee fell off of one of his employer's wagons on which he was riding to work and died as the result of the injuries thereby sustained. The employer did not furnish transportation to its employees in going to and from work. The employee had not reported for work at the time the accident occurred. It was held that the injury was not sustained in the course of the employment. 70 A bricklayer refused to work unless a conveyance was furnished to and from the depot, so the employer agreed to furnish a truck. While making a trip to the depot the truck went into the ditch and claimant was thrown out and injured. The Court of Appeals said: "The Industrial Commission properly held that the injuries arose out of and in the course of Littler 's employment. The ve- hicle was provided by the employer for the specific purpose of carrying the workmen to and from the place of the employment in order to secure their services. The place of the injury was brought within the scope of the employment because Littler when he was injured was 'on his way * * * from his duty within the precincts of the company. * * * The day's work began when he entered the automobile in the morning and ended when he left it in the evening. The rule is well established that in such cases compensation should be awarded." 71 A workman employed in the canal zone was injured while riding home from work on a labor train. It was held that he was injured in tli i course of his employment. 72 Where an employee was injured while driving his employer's wagon back to the place of employment after making a deli\ 69. Oldham v. Southwestern Surety Co., 1 Cal. I. A. C. D. (1914) 7, 7 N. C. C. A. 426. 70. In re Schmitt Ohio Ind. Com., (1914), 7 N. C. C. A. 415. 71. Littler v. Geo. A. Fuller Co.. 223 N. Y. 369. 119 N. E. 554, 16 N. C. C. A. 901. In re Claim of William Gerow, Op. bol. Dep. C. & L. (1915), 282. 523 265 WORKMEN'S COMPENSATION LAW for his employer, it was held that the injury resulted from an ac- cident arising out of and in the course of the employment. 73 An employee engaged to load and unload a barge was drowned while riding on the barge to the place where it was to be unloaded. It was held that the accident arose out of the employment. 74 Where the contract of employment entitled a waitress to ride in her employer's hotel bus while on personal errands during her off hours and she was injured by the negligence of the chauffeur while returning with him to report for duty, such injury did not arise in her employment, so as to make her and the chauffeur fellow servants and require her to proceed under the compensa- tion law. 75 Where a boy left his work and took a government skiff to go across a river for some reason unknown to anyone but himself, it was held, in the absence of any evidence to the contrary, that he was doing something incidental or necessary to his occupation and that the accidental injury which he suffered arose out of and in the course of his employment. 76 A section hand was injured when he jumped from a burning car while returning to work. The car was furnished by the em- ployer as a means of conveying his workmen to their place of work. It was held that the accident arose out of and in the courts of the employment. 77 Section hands, who are furnished handcars for transportation to and from work, sustaining injuries while enroute, even though the homeward trip is begun after the day's working hours are over, are still within the course of their employment. 78 73. White v. East St. Louis Ry. Co., 211 111. App. 14, 17 N. C. C. A. 938. 74. Rideout Co. v. Pillsbury, 173 Cal. 132, 159 Pac. 435, 12 N. C. C. A. 1032. 75. Roth v. Adirondack Co., 183 N. Y. S. 717, 6 W. C. L. J. 557. 76. Re Walter Webb, Op. Sol. Dep. L. 336. 77. Potts v. Lehigh Valley R. Co., 4 N. Y. St. Dep. Rep. 421. 78. Cicalese v. Lehigh Valley R. Co., 69 Atl. 166, 75 N. J. L. 897; Arkadephia Lbr. Co. v. Smith, 78 Ark. 505, 95 S. W. 800; Wilson v. Ban- ner Lbr. Co., 32 So. 460, 108 La. 590. 524 ACCIDENT ARISING OUT OP COURSE OP EMPJXDYMENT. 265 Where a farm laborer was permitted to use a horse of his em- ployer to take his personal belongings to the place of his employ- er, and the horse became frightened by a motor and the man was seriously injured, compensation was denied, the court holding that he was using the horse merely as a license, and that when an employer permits an employee to ride in his conveyance without any obligation on his part to do so the employer is not liable i~>r injuries received on the trip. 79 Where an employee at his request was furnished a bicycle to ride to and from work, and was killed when he collided with a motor car on his way home, it was held that the accident did rot arise out of the employment, even though the employee would not accept the employment unless provided with a bicycle. 80 Deceased was killed by a current of electricity received from a third rail while waiting to take a train home. "The deceased was entitled to journey from his work free of charge upon the cars of the appellant, and while so traveling would have been in the course of his employment, Russell v. H. R. R. R. Co , 17 N. Y. 134; Ross v. N. Y. C. & H. R. R. Co., 5 Hun, 488; Vick v. N. Y. C. & H. R. R. Co., 95 N. Y. 267, 47 Am. Rep. 36; Mo- Laughlin v. Interurban R, R. Co., 101 App. Div. 134, 91 N. Y. Supp. 883. The deceased was also entitled to a reasonable oppor- tunity, after his work was done, to remove himself from the prem- ises of his employer. Pope v. Merritt & Chapman Derrick & Wreckage Co., 177 App. Div. 69, 163 N. Y. Sup. 655; Bylow . St. Regis Paper Co., 179 App. Div. 555, 166 N. Y. Supp. 874. The 10 minutes, which elapsed between the moment when he gave in his time and the moment of the accident,, was a reasonable time during which to stay upon the premises of his employer waiting to take the next train home. Therefore, whether the accident hap- pened while the plaintiff was thus waiting, or after his homeward journey had begun, he was in either case, under the authorities 79. Whitefield v. Lambert, (1915), 8 B. W. C. C. 91. 12 N. C. C. \ 905; Whltebread v. Arnold, (1908), 99 L. T. 103, I B. W. C. C. 317; Nolan v. Porter & Sons, (1909), 2 B. W. C. C. 106; Henson v. Stand- ard Oil Co., 1 Cal. Ind. A. C. part 2, 383, 12 N. C. C. A. 379. 80. Edwards v. Wingham Agri. Implmts. Co., (1913), 6 B. W. C. C. 511. 525 265 WORKMEN'S COMPENSATION LAW cited, unless guilty of some affirmative act removing him there- from, still in the course of his employment when death over- took him. The case was made one of a continuing employment, so that the burden of proving a cessation thereof fell upon the appellant. That burden was not successfully borne. Upon the question whether the accident arose out of the employment it is sufficient to cite authority for the proposition that accidents oc- curring to employees while traveling to and from their work in an automobile provided by their employer arise, not only in the course of the employment, but from hazards incident thereto. Matter of Little v. Fuller Co., 223 N. Y. 369, 119 N. E. 554. Therefore I think the award should be affirmed." 81 The court in the syllabus to a recent Louisiana case said : ' ' Where, under a contract of employment, an employee is carried forth and back, on a working train and is under the orders of his foreman, and is paid from the time that he boards the train in the mornings, until his return to the starting point, and detrainment, in the even- ing, and where, upon a particular occasion, the train is stopped upon the return trip and he gets off and renders a service required by the foreman, and, being ordered to get on again, loses his life in the attempt so to do, his parents in default of wife or child, become entitled, under Act No. 243 of 1916, amending and re- enacting section 8 of Act. No. 20 of 1914, to recover compensation equal to 50 per cent, during 300 weeks, of the wages that he was receiving at the time of his death, and that, notwithstanding that the accident may have been attributable to the decedent's own negligence, or may have resulted from a risk, which under the general law of master and servant he might be held to have assum- ed." 82 81. Kowalek v. N. Y. Consolidated R. Co., (Dec. (1919), 179 N. Y. S. 637, 5 W. C. L. J. 434 10 App. Div. 160; Lannon v. Inter-borough Rapid Transit Co., 184 N. Y. S. 588, 7 W. C. L. J. 90; Indian Creek Coal Mining Co. v. Wehr, Ind. (1920), 128 N. E. 715, 7 W. C. L. J. 47; Harrison v. Cent. Const. Corp., Md. App. , 108 Atl. 874, 5 W. C. L. J. 534. 82. Farris v. Louisana Long Leaf Lbr. Co., La. , 86 So. 670, 7 W. C'. L. J. 292. 526 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 266 Employees who rode on a truck going a different way than the one upon which they were supposed to ride were not injured in the course of their employment. 83 Death was not due to an accident arising out of the employment, where the day's work had terminated, before deceased boarded a boat, chartered at the expense of the government, for the purpose of leaving the yards, even though the place of his employment could not be reached otherwise than by boat, since the contract of employment did not contemplate that the time consumed in going to and coming from work should be included in the day's work. 84 As a general rule an injury suffered by an employee while going to or returning from work does not arise out of the employment. An injury sustained while riding to the place of employment in a conveyance furnished by the employer in compliance with one of the terms of the contract of employment, for the use of employees, but in which the workman was not directed or required to ride, does not arise out of the employment, where it appears that the injury was received before, and not during, the hours of the work- man's service, when his employer had no control over him and be- for the beginning of the period covered by his wages. 85 266. While Walking to and from Work. Where a railroad employee, who had neglected to bring liis dinner with him as was his usual custom, received permission to go home for his dinner, and in proceeding along the right of way was struck and killed by a train, it was held that the relationship of employer and em- ployee had ceased, and that the accident was not one arising out of or in the course of his employment. The employee was on a mission of his own and the fact that he was on the premises of 83. United Disposal & Recovery Co. v. Indus. Comm.; United Engi- neering Co. v. Same, (two cases), 111. (1920), 126 N. E. 183, 6 W. C. L. J. 682. 84. Rausch v. Standard Shipbuilding Corp., N. Y. (1920), 181 N. Y. 513, 6 W. C. L. J. 92. 85. Nesbitt v. Twin City Forge & Foundry Co., Minn. (1920), 177 N. W. 131, 6 W. C. L. J. 66; Strohl v. Eastern Penn. Rye. Co., Pa. 1921, 113 Atl. 62. 527 266 WORKMEN'S COMPENSATION LAW his employer was immaterial as this course was of his own choosing in preference to a road running in the same direction. The burden of proof resting upon the party seeking to show the connection between the employment and the accident was not discharged. 80 The master of a schooner was returning to his boat from ashore, where he went on business of the ship, when he stepped upon an orange peeling and fell, and permanently injured his hip. It was held that, while the injury arose in the course of the employment, it did not arise out of the employment, and compensation was de- nied. 87 An employee was struck and injured by a train when going to his bunk house. There were two ways of reaching the bunkhouse, one of which was over the right of way which the employee chose of his own volition. It was held that this accident came within the settled rule "that injuries sustained by an employee while going to or returning from his day's work, when there is no contract of transportation, are not to be regarded as arising out of or received in the course of his" employment. ' ' 88 Nor could the employer confer a right upon the employee to use tracks over which he had no control, where the employee was not paid for the time required to reach his home. 89 An employee, while walking down a railroad on his way to the place of his employment, was injured by a train striking him. This was the usual route to work, and the employee's time began from the time he left home. It was held that the accident occurred when the deceased was on duty in the line of his employment, and that the accident arose out of the employment. 90 A car inspector was killed while crossing the track of another company. His time in emergency call began from the time he left 86. Hills v. Blair et al., 182 Mich. 20, 148 N. W. 243, 7 N. C. C. A. 409. 87. Chapman v. John Pearn (owners of), 9 B. W. C. C. 224, 12 N. C. C. A. 368. 88. Guastelo v. Mich. Cent. R. Co., 194 Mich. 382, 160 N. W. 484, 15 N.C. C. A. 241; Orsinie v. Tommce, Conn. (1921), 113 Atl. 924; Mason v. Alexandre et al., Conn. -- (1921), 113 Atl. 925. 89. Bell's Case, Mass. (1921), 130 N. E. 67. 90. Porritt v. Detroit United Ry., 199 Mich. 200, 165 N. W. 674, 1 W. C. L. J. 397, 15 N. C. C. A. 241. 528 ACCIDENT ARISING OUT OF COURSE OF EMPLOYMENT. 266 home and continued until he returned. On the occasion when the accident happened he was responding to an emergency call. In holding that the accident arose out of and in the course of the employment, the court said: "The decedent's work under the arrangement was emergency work, and its very character was such as to require him to report for duty at the earliest moment possible, and that he was doubtless expected to take the shortest and most direct route, though such route might expose him to dangers not present in one more circuitous, and, therefore, that his employer should be held to have anticipated such an accident as happened." 81 Compensation was denied a widow for the death of her hus- band, wiio was killed on his way home from work. The employee chose to travel on the railroad instead of other ways which led in the same direction. The employer allowed pay for the time neces- sary in coming to and going from work. It was held that the acci- dent did not arise out of and in the course of the employment, there being no evidence to indicate an agreement between the rail- road company and the defendant as to the use of the railroad as a foot path by the letter's employees. 02 Where an employee was injured while going to work, walk- ing along a railroad, compensation was denied in the lower court, the judge holding that by walking along the railroad, when there were two less hazardous paths, the employee added peril to his em- ployment. On appeal it was held that such choice on the part of the employee did not make the accident one not arising out of the employment. 03 Compensation was denied for the death of an employee who was killed while passing along a railroad track, not in the "usual passage way of 8 ft. in width between the tracks," evidently going 91. In re Maroney, 64 Ind. App., , 118 N. E. 134, 15 N. C. C. A. 242, 1 W. C. L. J. 356. 92. Whittall v. Staveley Iron & Coal Co., Ltd., (1917), W. C. ft Ins. Rep. 202, 15 N. C. C. A. 243; In re Fumiciello, 219 Mass. 488, 107 N. E. 349, 15 N. C. C. A. 245; Hadwin v. Shepherd, (1915), W. C. & Ins. Rep. 503, 15 N. C. C. A. 245; Mazeffe v. Kan. City Terminal Ry. Co., Kan., (1920), 189 Pac. 917, 6 W. C. L. J. 159. 93. Fox v. Rees & Kirby, Ltd., 1916 W. C. & Ins. Rep. 339, 15 N. C. U. A. 248. 529 W. C. 34 266 WORKMEN'S COMPENSATION LAW to or from work, and it was held that the accident did not arise out of decedent's employment. It not having been shown that his em- ployment required his presence on the track. 94 An employee, who was engaged in work in an ice house, was drowned on his way home when he was crossing the ice pond, which was the most direct route to his home. The pond was on the premises of the employer and under his control. In affirming a judgment which found that the accident arose out of and in the course of the employment, the court said:" While the employee's work for the day had been finished and he was on his way home at the time of the fatal accident, still it is settled that an injury to a workman may arise out of and in the course of his employment even if he is not actually working at the time of the injury." The court said that the finding that the pond was in the control of the employer and that the crossing over it on the ice was "the reasonable and customary way" for deceased to reach his home, and that he and other employees who lived in the same direction "crossed it this way regularly," warranted the further finding that the injury occurred in the course of the employment. 95 Where an employee, who was allowed to take work home, but was not required to do so, sustained injuries, by falling on ice when attempting to dodge an automobile while waiting to board a street car on his way to work, compensation was denied, the court holding that the accident did not arise out of nor in the course of the employment. 90 Where an employee slipped and fell while walking from one place of employment to another it was held that the accident arose out of and in the course of the employment. The court said: "It is enough to entitle a workman to compensation if he can say that on the occasion when he was injured by a peril of the street 94. Siemientkowski v. Berwind White Coal Co., (N. J. L.) 92 Atl. 909, 14 N. C. C. A. 132. 95. In re Stacy, 225 Mass. 174, 114 N. E. 206, 15 N. C. C. A. 244. 96. Indus. Comm. of Colo. v. Anderson, (Colo.), 169 Pac. 135, 1 W. C. L. J. 305; In re Killian Delebar, 2nd A. R. U. S. C. C. 266; In re Alva J. Norman, 2nd A. R U. S. C. C. 276. 530 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 266 his duty to his employer took him to that street, though the occa- sion may have been of a rare and exceptional character. 87 Deceased was employed as a procurer of samples of fat for his employer. It was customary upon such occasions for him to pro- cure samples, and if he had time, to return to the plant before 6 p. m., and if he did not have time, to bring them the following morning. On the evening of the accident causing deceased's death he had procured samples and proceeded towards his home, when he was struck by a street car and killed. The court held that at the time of the accident deceased was not performing any mission for his employer. He had completed his work for the day. It was true that he had in his possession samples to be taken to the plant in the morning; but if he did retain possession of the sam- ples at the time of the accident he did so for his own convenience, and that fact did not contribute in any way to his injury. The accident did not arise out of and in the course of the employ- ment. 98 A workman injured on a highway on his way to work is not injured in the course of his employment. 09 A watchman, returning from work, was injured after alighting from a labor train and while walking along the railroad track, There was no ttther means of reaching a highway leading to his home. It was held that he was injured in the course of his em- ployment. 1 An employee in the reclamation service was killed while walking along a railroad track when a train of that service struck him, It was held that the accident arose out of the employment. 2 "The principal question here argued is whether Miller's acci- dent arose out of and in the course of his employment. His work 97. White v. W. ft T. Avery, Ltd., 1915 W. C. & Ins. Rep. 594, 2 Sc. L. Times 374. 15 N. C. C. A. 251. 98. N. K. Fairbanks Co. v. Industrial Comm., 285 111. 11, 120 N. E. 457, 17 N. C. C. A. 948. 99. In re Claim of fiilkey. Op. Sol. Dep. C. & L. (1915), 288; In re Harry Scherer, 3rd A. R. U. S. C. C. 176. 1. Op. Sol. Dep. C. ft L. (1915), 309. 2. In re claim of J. Schlechter, Op. Sol. Dep. C. ft L. (1916), 331. 531 266 WORKMEN'S COMPENSATION LAW in the roundhouse was completed at 4 o'clock, and the evidence tends to show that he could take a street car to his home and thus avoid walking down the tracks in the yard of defendant in error, but it also appears by the weight of the evidence in the record that there was a custom on the part of many of the employees to go down the tracks to take a train, and that this custom was known to the officials of the railway company who were in charge of the work at the roundhouse. This court has held that an injury oc- curring to an employee while on his way to or from his work may or may not arise out of and in the course of the employment, de- pending upon the special facts of the particular case. Fairbank Co. v. Industrial Com., 285 111. 11, 13, 120 N. B. 457, 458. The court said in that case: 'When work for the day has ended and the employee has left the premises of his employer to go to his home the liability of the employer ceases," unless after leaving the plant of the em- ployer the employee is incidentally performing some act for the em- ployer under his contract of employment.' ''It is clear from his record that the accident occurred on the premises of the employer, as that word is ordinarily understood. One of the controlling factors in determining the question here under consideration is whether the employee at the time of the accident was within the orbit, area, scope, or sphere of his em- ployment. "The usual rule followed in workmen's compensation eases ap- pears to be that a man 's employment does not begin until he has reached the place where he is to work or the scene of his duty and does not continue after he has left the premises of his employer (Bradbury on Workmen's Comp. [3d Ed.] 468), and it is ordi- narily held that if an employee is injured on the premises of the employer in going to or from work he is entitled to compensation for such injuries (.1 Honnold on Workmen's Comp., Par. 122; Bradbury on Workmen's Comp. [3d Ed.], 473, and authorities cited). The employment is not limited to the exact moment when the workman reaches the place where he begins his work or to the moment when he ceases that work. It necessarily includes a rea- sonable amount of time and space before and after ceasing actual employment, having in mind all the circumstances connected with 532 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 266 the accident. Boyd on workmen's Comp. Par. 486. Whether an employee in going to or from the place of his employment is in the line of his employment will depend largely on the particular facts and circumstances of each case. There must necessarily be a line beyond which the liability of the employer cannot continue, and the question where that line is to be drawn has been held to be usually one of fact. Elliott on Workmen's Comp. Acts (7th Ed.) 41. The area of an employee's duty is much more readily ascertained in some cases than in others. Where the premises are confined to a single building or plant or inclosure it is usually held that the accident occurring on the premises arises out of and in the course of the employment, but when the accident occurs on the right of way of a railroad, and the right of way extends for miles with the main track line and for a considerable distance on the switch tracks or in the yards, it is much more difficult to decide. In the recent case of Schweiss v. Industrial Com., 292 III. 90, 126 N. E. 566, this court had occasion to review numerous authorities bearing on this question, and the cases there cited will illustrate how different courts have viewed this question. We will not attempt here to refer to those cases in detail, but simply cite the opinion which shows the bearing that such cases have on the question here involved. Some additional authorities, however, may help to throw light on the question. "An accident happened to a workman employed in one of the departments of the employer's oil works when he was going to his work on a path on the employer's premises provided for 'the use of the workmen, although at the time of the accident the nearest building belonging to the works was 80 yards away and his own working place was 300 yards distant. It was found that the accident arose out of and in the course of the employment. Nicol v. Young's Paraffin Oil Co., 52 S. L. 354. "An accident to miner was held to arise out of and in the course of his employment where, while proceeding above the ground to his work, he fell and broke his leg on the rails belonging to the employer leading to the doorway of a horizontal passage by which the mine was entered, at a spot some 13 feet from the doorway. Mackensie v. Coltness Iron Co., 6 Sess. Gas. (5th Series) Scot. Court of Session, 8. 533 266 WORKMEN'S COMPENSATION LAW "Where a miner at the end of his day's work changed his clothes, and, still carrying a miner's lamp, started towards the bottom of the shaft with the intention of ascending to the top, and about 200 feet from the room where he had been at work and about half a mile from the bottom of the shaft one of his eyes was put out by coming in contact with a piece of slate hanging from the roof, it was held that the accident arose out of and in the course of his employment. Sedlock v. Carr Coal Co., 98 Kan. 680, 159 Pac. 9, L. R. A. 1917B, 372. "An employee who was injured while going down in an elevator in the building of his employer after the whistle blew to cease work was held to be injured in the course of his employment. Nelson v. Aetna Life Ins. Co., 12 N. C. C. A. 660, note. "A stationary engineer, after the whistle had sounded for quit- ting work for the day, jumped over a pile of lumber to make a short cut out of the factory and fell, breaking his ankle. It was held that the injury arose out of the employment. Bennett v. Russell & Sons Co., 12 N. C. C. A. 659, note "A laborer at work in a field was stopped by a threatened storm, and while going to his home across his employer 's land to avoid the storm he stepped on a plank and sustained an injury. It was held that the accident arose out of and in the course of his employment. Taylor v. Jones, 1 B. W. C. C. 3. "This court held in Stephens Engineering Co. v. Industrial Com., 290 111. 88, 124 N. E. 869, that an injury to an employee caused by a fall from a fire escape which he attempted to descend for the pur- pose of reporting to the timekeeper at the close of his day's work arose out of and in the course of his employment, where it was cus-_ tomary for the workmen to use the fire escape as a means of descent and such use was known to the employer, although there was an- other way of leaving the place of work which the evidence tended to show would be safer than the fire escape. "The great weight of authority appears to be to the effect that if the injured employee was on the premises of the employer in going from his work, leaving within a reasonable time, and follow- ing the customary or permitted route off the premises, the accident would be held to arise out of the employment. Boyd on Work- men's Comp. Par. 486. The leaving of the premises where one is 534 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 267 employed is so closely connected with his employment as to render it a necessary incident thereto. It was stated in Terlecki v. Strauss. 85 N. J. Law, 454, on page 455, 89 Atl. 1023, 1024 : 'It is a necessary implication of the contract that the workman shall come to his work and shall leave with reasonable speed when the work is over.' "The fact that the employee in leaving the premises was follow- ing the usual and customary route is ordinarily considered of weight in deciding that the accident has taken place in the course of the employment. Bradbury on Workmen's Comp. (3d. Ed.) 473-477; Harper on Workmen's Comp., par. 36. Beyond question, an employee will generally be considered as being within the course of employment when he is going to or from his place of work while on the premises of the employer, if he is following the cus- tomary or permitted route in going to and from his work. It has been said that an employee must not choose a needlessly dangerous path to and from his work, but that it is not necessary for him to use the path or place provided by his master; that is, enough that it is customarily used for these purposes by th^ workmen, and that its use is not specifically forbidden. Gane v. Norton Hill Colliery Co., 2 B. W. C. C. 42; McKee v. Great Northern Railway Co., 1. B. W. C. C. 165; Barnes v. Nunnery Coal Co., 4 B. W. C. C. 43 ; 25 Harvard Law Review, 411 and cases cited. "As in this proceeding the accident happened before the em- ployee reached the train of the defendant in error railway com- pany, the question whether he was permitted to ride free has no controlling force on the question whether the accident arose out of and in the course of employment. In view of all the circumstances in the case, by the great weight of authority as well as by sound reasoning, we think the conclusion follows that this accident arose out of and in the course of Miller's employment." 3 267. Going to and from Work Using Conveyances of Third Parties. A messenger boy was injun-d while riding on a truck of a third party. He was furnished car fare when the distance was considerable. On the day of the accident he was sent a few blocks, 3. Wabash Ry. Co. v. Indus. Comm ., 111. . 128 N. E. 290. 6 W. C. L. J. 649. 535 267 WORKMEN'S COMPENSATION LAW and being in a hurry to get back he caught a passing truck. In affirming a judgment of dismissal the court held that "plaintiff's employment was such that reasonable men could not conclude that, as an incident thereto, it might be expected that the hazard of accidental injury from obtaining rides on passing vehicles was connected therewith;" and that, "since plaintiff was provided with car fare when the messages were to go beyond a certain dis- tance, he was to walk on all other occasions, and, therefore, when he sought other methods by which to accomplish his tasks he de- parted from the scope or ambit of his employment, and while so doing was not protected by the compensation act." 4 An extra switchman, who reported for work and was informed that his services were not needed, climbed on a moving freight train for his own convenience in going home and was struck by a viaduct. It was held that the relation of master and servant did not exist at the time of the accident. Therefore the accident did not arise out of and in the course of the employment. 5 Decedent was employed as a foreman. He had completed one job and was ordered to another at a different point in the state. Missing the regular stage he accepted the invitation of a friend to ride, as a guest, in an automobile. The automoblie skidded and turned over, Deceased sustained injuries which resulted in his death within twenty four hours thereafter. The court, in holding, on appeal, that an award should be made, said: "In the case at bar it was an essential part of his employment that the deceased should travel from the place where he had installed one plant to the place where he was to install another. It is also clear that he adopted a reasonable and apparently the only facility for such travel under the circumstances, and as safe as any other that may have been available. No case is cited that adopts a different rule, and we know of none, as applied to workmen's compensation statutes." 6 4. State ex rel. Miller v. District Court of Hennepin Co., 138 Minn. 334, 164 N. W. 1012, 15 N. C. C. A. 256, 1 W. C. L. J. 216. 5. Michigan Cent. R. Co. v. Indus. Com. et al., 290 111. 503, 125 N. E. 278, (Dec., 1919) 5 W. C. L. J. 189; Braley's Case, Mass., (1921), 129 N. E. 420. 6. Industrial Commission of Colorado v. Aetna Life Ins. Co., 64 Col. 480, 174 Pac. 589, 17 N. C. C. A. 955, 2 W. C. L. J. 759. 536 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 267 An employee was engaged to go from place to place at the direction of his employer for the purpose of setting up machinery, which his employer sold On these occasions it was discretionary with the employee as to what means of conveyance he would select to take him from one place to another. At the time of the accident he was going to his work in the automobile of his son. The automobile was upset and he was seriously injured. Com- pensation was awarded and the appellate court, in denying an appeal and holding that the accident did arise out of and in the course of the employment, said that the facts of this case took it out of the general rule contended for by the employer, since in this case the particular destination to which the employee was to go was not defined in advance, "but was the subject of direction from time to time by the employer to an extent which rendered the travel of the employee to such place a part of the employment itself sufficient to bring him within the category of a traveling employee. ' >T An injury to an employee while riding home in a conveyance owned by a fellow employee, when transportation was not furnish- ed by the employer, does not arise out of the employment. 8 An employee, engaged as cook in the river and harbor wcrk, was drowned while crossing the river in a launch of a private party while on his way to work. It was held that the accident did not arise out of and in the course of the employment. 8 A life insurance agent was riding in an automobile of a pro- spective customer when the automobile turned over and he sus- tained injuries. It was held that the accident did not arise out of the employment. 10 An employee injured while riding home from work in the truck of another employee, over which the employer exercised no control, was not injured by an accident arising out of and in the course of the employment, since the employer had not undertaken to furnish transportation to his employees. 11 7. London & L. Indent. Co. v. Indus. Acci. Com.. 35, Cal. App. 681, 170 Pac. 1074, 16 N. C. C. A. 909, 1 W. C. L. J. 743. 8. In re Oillig, Ohio, I. C. 1915, 12 N. C. 1. A. 388. 9. In re Claim of Aaron Ware, Op. Sol. Dep. C. * L. (1915), 334. 10. Hewitt v. Casualty Co. of America, 225 Mass. 1. 113 N. E. 572. 11. Diaz v. Warren Bros. Co., Conn. , (1920), 111 All. 206. 6 W. C. L. J. 517. 537 268 WORKMEN'S COMPENSATION LAW 268. Going- to and from Work While on Premises of Em- ployer and While Passing Over Ways of Egress and Ingress. Where a carpenter fell when attempting to descend from the bin floor of an elevator, by way of a fire escape, which was used in go- ing from his work to the timekeeper's office at the close o the day's work, it was held that the accident arose out of and in the course of the employment. 12 Compensation was allowed for the death of a miner, who was crushed between the cage and the buntons of the shafts while leaving the mine after work hours, the court holding that the accident arose out of and in the course of the rinployment. 13 Claimant had applied for work, and was informed that there was no work, but to call at the office before 7 :30 the next morn- ing and see if there would then be any. He was given, on re- quest, lodging and a slip entitling him to supper and breakfast. He did not report at the appointed hour, but slept until 8:30; and at noon, while going from the sleeping car to the place where his pass entitled him to get breakfast, he was struck and injured while crossing the railroad tracks. Reversing an award in claimant's favor, the court held that claimant was not in de- fendant's employ at the time of the injury, and said further: "Even if claimant was an employee of the appellant, he "was not acting in the course of his employment when injured. It is true that an employee is within the protection of the (New York) Work- men's Compensation Law (Consol Laws c. 67), not only when actually at work, but also while upon the premises of his employer he is going to or from work, or to or from a meal, or wir.ie at a meal which is had upon the premises during a temporary interrup- tion of work. This claimant was not going to or from his work at the time of the injury, nor was he going to a meal during the interruption of his work, for he had as yet not worked at all. Finally, he was not going to a meal upon the premises, which he was permitted to take there, for his card to the boarding house 12. Stephens Engineering Co. v. Indus. Com., 290 111. 88, 124 N. E. 869, 5 W. C. L. J. 205; In Re Geo. J. Wheeler, 2nd. A. R. U. S. C. C. 258. 13. Moury v. Latham Coal & Mining Co, 212 111. App. 508, 18 N. C. C. A. 1034. 538 ACCIDENT ARISING OUT OP COURSE OF EMPLOYMENT. 268 was for supper and breakfast only, and both these nu-als 'ie had already eaten. He had no right to a noonday meal at the boarding house. Therefore, the claimant, even though an employee, was not in the course of his employment when injured." 14 An employee of a lumber company was required to rem;un on the premises and to sleep in a bunk furnished by the employer. While lying in the bunk, talking to a fellow employee in 'he bunk above him, a straw fell and lodged in his throat. The court, in in deciding that the injury arose out of and in the course of the employment, said that the general rule under the authorities is that when the contract of employment contemplates tlr. Co. et al., v. Indus. Comni. of Wis. et al., 168 WIs. 381. 170 N. W. 366; 3 W. C. L. J. 549. 539 268 WORKMEN'S COMPENSATION LAW his companions, and putting his head into the elevator shaft, was his own voluntary act. He had deviated from the direct and ordi- nary route of passage for purposes of his own." 16 An employee fell from a trestle and was killed, while en route to his home for lunch. The employee chose the railroad in pref- erence to a highway, in order that he might not be seen in, his working clothes on Sunday. Permission was given him, by his employer, to use the railroad, and he was paid for the hour con- sumed in going for lunch. In holding that the present case did not come under the rule of protection against accidents occurring upon the premises of the employer, the court said: "At the time the deceased fell he was still 'within the limits of the railroad yards in which yard he performed certain of his duties,' there being nothing to indicate how far he had proceeded from where he stopped work. The fact that an employee is on the 'premises' of his employer when those premises consist of a railroad right of way or yards does not have the significance which it naturally would have in the case of an ordinary manufacturing plant. We know that such rights of way extend indefinitely, and that such yards are of no standard size, but run from small areas to tracts extending over many miles. Therefore, to say that the deceased was still within the yards where he performed some of his duties in no manner indicates that he was still within that reasonable distance of the point of cessation of his actual work where he would be protected. Nor do we think that this distance and protection would be indefinitely and as a matter of course extended simply because the employer permitted him for his own purposes to travel on the railroad right of way instead of taking the usual and safe course by the highway." 17 Where an employee was injured by falling into the elevator shaft while attempting to use the elevator in going to his place of employment on the fourth floor, the court, in holding that the accident arose "out of and in the course of the employment, 16. Urban v. Topping Bros, et al., 184 App. Div. 633, 172 N. Y. Supp. 432, 3 W. C. L. J. 184. 17. Mclnerney v. Buffalo & S. R. Corp., 225 N. Y. 130, 121 N. B. 806, 3 W. C. L. J. 494. 540 ACCIDENT ARISING OUT OF COURSE OF EMPLOYMENT. 268 said : ' ' Under the rule first stated, if the employer were the owner of the building and the employee were injured on the elevator or stairs in reaching his place of work on a certain floor, it cannot be doubted that compensation is payable under the statute. The employee has reached the employer's premises and is using a means of access specially provided for that very purpose. It would seem to follow that if the employer did not own the building, but rented it all, compensation would still be payable, even though the em- ployer did not operate or control the elevator, or have the control or care of the stairs, but such operation, control, and care remain- ed with the owner of the building. The operation, control and care of the elevator and stairs in such a case would seem to be a matter wholly between the employer and owner of the building. It would not enter as between employer and employee and would be entirely extraneous to the employment. As to the employee it would be a matter of indifference whether the elevator or stairs necessary for access to the spot where he is to work are by the employer's lease operated and controlled by the latter or by the owner of the building, provided only that they are in fact furnish- ed so that access by the employee may be had. There would seem to be no reason for allowing compensation where the employer con- trols the elevator for instance, and refusing it where he does not, when the fact as to who controls it is extraneous to the employment and the theory upon which compensation is now allowed under the Workmen's Compensation Act is not, as before, that the employer, either directly or through some agency or instrumentality under his control, has been guilty of some breach of duty toward the employee. So far as the employee is concerned, the elevator or st.,irs are a special means of access furnished him to get to his place of work, and, in effect, furnished him by his employer. By the lease the tenant has the right as an appurtenance of the premises leased to the use of the elevator or stairs for the purpose of access, and, so far as the tenant's employees are concerned, the elevator and the stairs are, in effect, a part of the employer's premises." 1 * 18. Starr Piano Co. T. Indus. Comm , (1919), Cal. , 184 Pac. 860, 6 W. C. L. J. 14; In Re Sundrine. 105 N. E. 433, 218 Mass. 1, 5 N. C. C. A. 541 268 WORKMEN'S COMPENSATION LAW Where an employee was crushed between cars while leaving premises, and using a route not intended for employees but not strictly prohibited, it was held that since there was no enforced rule against using this route that it could not be said that the accident did not arise out of and in the course of the employment. 19 Neither could that be said where employees of different companies used the bridge of other companies indiscriminately in crossing canals. 20 An employee stopped at a commissary to talk to other employ- ees and then continued homeward, and was struck by a stone thrown by a blast, which according to custom, was fired about ten minutes after quitting time. The court, in holding that the ac- cident arose out of the employment, said, that the keeping of the commissary by the employer was for the mutual benefit of the em- ployer and employees, and that the employees were expected to stop and avail themselves of its use. 21 Where a laundress was allowed to do her own washing on the premises of her employer in addition to board, lodging and money as compensation for her labor for her employer, and she was in- jured while doing her own washing, it was held that the accident did not arise out of and in the course of employment, and that it was immaterial that the accident occurred while she was doing what she was permitted to do by her contract of employment, for she was not engaged in performing any task of her employer. 22 616, L. R. A. 1916A, 318; White v. Slattery Co., Mass., (1920), 127 N. E. 597, 6 W. C. L. J. 323; Papineau v. Indus. Ace. Comm., Cal. App. , (1920), 187 Pac. 108, 5 W. C. L. J. 492; Latter's case, Mass., 130 N. B. 637, (1921). 19. Baltimore Car Foundry Co. v. Ruzicka, 132 Md. 491, 104 Atl. 167, 17 N. C. C. A. 945, 2 W. C. L. J. 791; In 1-3 Claim of Chambers, Op. Sol. Dep. C. & L. (1915), 291. 20. Procacins v. E. Horton & Sons, Conn. , 111 Atl. 594, 7 W. C. L. J. 31. 21. Merlino v. Conn. Quarries Co., 93 Conn. 57 104 Atl. 396, 17 N. C. C. A. 945, 2 W. C. L. J. 781; In re Stephen J. Lloyd, 2nd A. R. U. S. O. C. 260; In re Max Stange, 2nd A. R. U. S. C. C. 261. 22. Daley v. Bates and Roberts, 224 N. Y. 126, 120 N. E. 118, 17 N. C. C. A. 946. 542 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 268 "When Trotzke entered the inclosure of the Inland Steel Com- pany undoubtedly he was in a place where his employer's busi- ness required him to be, and so long as he remained in that place he was exposed to certain inherent dangers to which he would not have been exposed apart from the business of his employer. By one of the inherent hazards of that place he was fatally injured, and the Industrial Board was justified in finding that the injury which resulted in his death arose out of the employment." 23 Deceased had been in the employ of a hotel company, in charge of the passenger and freight elevators and their operators. On the day of the accident she had performed the duties of starter and INK! worn the uniform of a starter. She had "punched out" on the time clock at 7:30 p. m., and a few minutes after 8 p. m., she nifored one of the elevators and rode up and down for 15 minutes. At this time she was in street attire. She was talking with the operator, but the topic of conversation does not appear. While they were thus occupied, a passenger got off at the tenth floor, and deceased followed. The operator closed the door, and as the elevator started up deceased pushed open the door and attempted to enter. She tripped, and as the elevator was moving, fell into the shaft. Compensation was awarded for her death, the court, in affirming the award, saying:' "Relators make much of the fact that deceased had 'punched out' on the time clock and that she was dressed for the street; hence, it is said, the finding is not sus- tained that she met death in the course of her employment from an accident arising out of it. This overlooks some persuasive tc^ti inony given by the assistant manager of the employer, to the effe-t that deceased had no stated hours of work, but was practically on duty all the time, as he put it, '24 hours in the day:' that she iiM'd her own discretion as to the time within which she was to do that which was expected of her. that the wearing of the uniform was not obligatory for her, and that she was not required to punch the time clock, for her wages were not paid upon its record. The inference is near at hand that she was at the moment of the ac- 23. Great Lakes Dredge A Dock Co.. v. Trotrke. Ind. App. , 121 N. E. 675. 18 N. C. C. A. 1032. 543 268 WORKMEN'S COMPENSATION LAW cident engaged in her work, endeavoring to ascertain whether the doors of the elevator she was riding on locked properly. It seems their defective condition in this respect was the direct cause of her death." 24 An employee was injured when he was leaving the premises, up- on being informed that his services were not required. It appeared that upon the particular morning of the accident the employee was late but it was claimed that he was refused work because he was not in a sober condition. The employer sought to escape liability on the grounds that the employee was not a regular employee, but was there asking for work, and therefore he was not injured in the course of his employment. It was found that he had been em- ployed for 8 months previous to the day of the accident, and that there was not a separate employment from day to day. He was therefore a regular employee and was there in the performance of his duty as such, and was entitled to benefit of the act. 25 An employee on a boat reported for duty at 5 p. m. and was in- formed that the boat would not sail until 11 p. m. He then went ashore, and when returning at 10 p. m. he sustained injuries while passing through his employer's yard. The court held that if the employee left the boat without permission, then the accident did not arise out of the employment. Th'e court said: "If Carter left the boat by permission, and while returning to it and his work he was injured upon his master's premises, and while he was pro- ceeding over a not unreasonable route, and while he was at a place where he had a right to be, and within the period of his em- ployment, which began at 5 o'clock, he was injured in the course of his employment, and his employment was the proximate cause of his injury. ' ' 2e A trackman was engaged to work for a railroad company. His employment was to begin a few days later. He was given a pass over the company's line to a bunk car furnished by the company. 24. State ex rel. Radisson Hotel v. District Court Hennepin County, (Minn.), 172 N. W. 897. 25. Kiernan v. Priestedt Underpinning Co., 171 App. Div. 539, 157 N. Y. Supp. 900, 13 N. C. C. A. 497. 26. Carter v. Rowe, 92 Conn. 82, 101 Atl. 491, 15 N. C. C. A. 258. 544 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 268 He was struck by one of the company's cars and killed while wait- ing to get into the bunk car after he had arrived on the grounds where the car was located. It was held that the accident did not arise out of and in the course of the employment, the court saying, that he was not at the time of the accident engaged in performing any act in the line of his employment, since his labors under the agreement were not to begin until some time later. 27 Where a hotel chef had been dismissed from employment but failed to leave, and about an hour after he was dismissed he cut his hand while preparing meals, it was held that the relationship of employer and employee had been terminated prior to the accident, therefore the accident did not arise out of and in the course of the employment,* Where a laborer was injured while passing into a building under construction, to apply for work, in response to information that njen were needed, it was held that he was not an employee. 29 An employee, on his way to the time keeper's office to check out in the evening, had to wade through impure flood water which overflowed defendant's car yards. An old sore became infected and necessitated amputation. The evidence tended to show that there was no other means of getting from the place where claimant was employed. Affirming judgment in favor of the employee the court said: "Irrespective of any question of negligence, the standing of the flood water on the ground which was a part of the defendant's factory became for the time being one of the condi- tions under which the business was carried on. It was not a condi- tion peculiar to the kind of business done, but it was one which gave rise to a special risk incurred by the workmen there engaged. We think the injury (assuming the facts to be as claimed by the plaintiff) is to be regarded as one arising -out of the employ- ment." 80 27. Hloomington. Decatur & Champaign R. Co. v. Industrial Bd. et al.. 276 111. 239, 114 N. E. 517, 13 N. C. C. A. 490. 28. Greenberg v. Atwood, 38 N. J. L. J. 54. 13. N. C. C. A. 495. 29. Dickerson v. Bernstein, 137 S. W. 773. 144 Ky. 19. 30. Monson v. Battelle. 102 Kan. 208, 170 Pac. 801, 16 N. C. C. A. 896. 1 W. C. L. J. 770. 54ft W. C. 35 268 WORKMEN'S COMPENSATION LAW An employee fell downstairs when on his way out after working hours on his way home, intending to make a delivery of cigars for his employer according to his usual custom. Holding that the accident arose out of an*d in the course of deceased's employment, the court said: "It is plain, therefore, that Grieb's service, if it had been rendered during working hours would have been inci- dental to his employment. To overturn this award, it is necessary to hold that the service ceased to be incidental because rendered after hours. The law does not insist that an employee shall work with his eyes upon the clock. Services rendered in a spirit of helpful . loyalty, after closing time had come, have the same pro- tection as the services of the drone or laggard. * * * All the cir- cumstances point to the conclusion that Grieb left the factory on the fatal errand for the sole purpose of helping the master in the transaction of the master's business. It was not mere friendship, it was the relation of employer and employee, that led the one to request the service and the other to render it. If such service is not incidental to the employment within the meaning of this stat- ute, loyalty and helpfulness have earned a poor reward." 31 A miner slipped and fell on a track in leaving the premises on a frosty morning, and sustained injuries. The lower court held that the risk of falling was common to all persons on a frosty morning and therefore the accident did not arise out of the em- ployment. Applying the rule laid down by the House of Lords in Simpson v. Sinclair, (1917) A. C. 127, (1917) W. C. & Ins. Eep. 164, 15 N. C. C. A. 224n, rev'g (1915) W. C. & Ins. Rep. 543, (1915) 2 Sc. L. T. 291, Swinfen Eady, L. J., said: "Here it was by reason of the workman's employment that he was compelled to be in this particular place. It was the ordinary way of leaving the colliery premises to go to his home. There is no suggestion that it was a way that he ought not to have taken, or a prohibited way. It was the ordinary way home, and slipping and falling with his arm on this rail at this spot was, in my opinion, an ac- cident that arose out of as well as in the course of his employ- 31. Grieb v. Hammerle, 222 N. Y. 382, 118 N. E. 805, 16 N. C. C. A. 897, 1 W. C. L. J. 846; In re Cairn of Fahey, Op. Sol. (1915), 218. 546 ACCIDENT ARISING OUT OF < 01 u>i; OK KM l'l.< IY M KN T. 268 in mt. For these reasons I am of opinion that the appeal should be allowed, and an award made in favor of the workman. " :r - The usual means of heating water, for washing before leaving the premises after work hours, was out of order, and the em- ployees sought to heat a bucket of water by placing it in a tank, which they took to be filled with hot water, but which in fact was an explosive acid that exploded when it came in contact with the cold bucket and severly burned the employee. The tank bore no danger label. The fact that the injured employee departed from the usual and customary way of providing hot water for \\asliinvr. when deprived of the usual means of heating water for such purpose, cannot deprive him of the benefits provided by the Indiana workmen's compensation law. He was still pursuing his original purpose and the deviation in the plan of accomplishing the end in view, under the circumstances, was not unreasonable or unnatural. 88 The test in determining whether the injury has arisen in the course of employment is then said to be where the deceased, "though actually through with the work, was still within the sphere of the work, or was doing what a man so employed may reasonably do within a time durinir which he is employed and at a place wh.-re he may reasonably be during that time." 84 Where a threshing hand was injured while assisting in placing the machine on the highway after a job had been finished and the employee paid off, it was held that the accident arose out of and in the course of the employment, because of a custom of the 32. Wales v. Lambtoii & H. Collides, (1917), W. & C. Ins. Rep. 289, 16 N. C. C. A. 898; Marsh v. Pope & Pearson, Ltd., (1917), W. C. & Ins. Rep. 267, 16 N. C. C. A. 899; In re Herbert Ferguson, 2nd A. R. U. S. C. C. 262. 33. In re Ayers. 64 Ind. App. , 118 N. E. 386, 16 N. C. C. A. 900, 1 W. C. L. J. 559. 3.4. In re Stacy, 225 Mass. 174 114 N. E. 206; Demann v. Hydrauli, Engineering Co., 192 Mich. 594, 159 N. W. 380; Indian Creek Coal Min- ing Co. v. Wehr, Ind. . (1920), 128 N. E. 765, 7 W. C. L. J. 47; In Re Louis Mahin, 3rd. A. R. U. S. C. C. 174. 547 268 WORKMEN'S COMPENSATION LAW country wherein threshing employees were expected to assist in placing the machine out on the highway. 35 An employee was compelled to cross a trestle over planks which were unguarded in order that he might reach the car from which he was to unload coal. The planks leading to the car were frosty and slippery. Deceased was found on the ground below the ladder, where he naturally would have been had he fal- len from the trestle. In overruling the contention of the em- ployer that the accident did not arise out of and in the course of the employment, the court said: "The board were well war- ranted in finding that the employee met with his injury in the course of his employment. It occurred at the time and place of his occupation, and while he was engaged in the duties incidental to it. The evidence also warranted their conclusion that the in- jury arose out of his employment. If his fall was due to the slippery, unguarded and dangerous condition of the trestle and ladder, then his injury was caused by a risk incident to the work he was employed to do." 36 An employee was blind in one eye, but his vision was ample for the work he did. About 6 p. m., when he was on his way leaving the premises by a stairway, he slipped or became overbalanced and fell. In holding that the accident arose out of his employ- ment the court said: "We are of opinion that there is a reason- able probability that some employee in the course of his employ- ment will fall and receive an injury while descending a stairway of an employer, constructed and used as the stairway was in the case at bar. It follows that the likelihood of such a fall is a risk and hazard of that business." 37 Where a miner was injured by a projecting piece of slate, while leaving the mine at the close of his day 's work, it was held 35. Newson v. Burstal, (1915), W. C. & Ins. Rep. 16, 15 N. C. C. A. 218. 36. In re Uzzio, 228 Mass. 331, 117 N. E. 349, 15 N. C. C. A. 234, 1 W. C. L. J. 80. 37. In re O'Brien, 228 Mass. 380, 117 N. E. 619, 15 N. C. C. A. 236, 1 W. C. L. J. 213. 548 ACCIDENT ARISING OUT OP COURSE <>K F.MI'I.OYMENT. 268 that the accident arose out of and in the course of the employ- ment. 38 Where an employee was injured when he attempted to board a switch engine to go to punch a time clock at the entrance of the employer's plant, about five blocks from where the employee quit work, it was held that the accident happened in the course of the employment but did not arise out of it, the court savin-,': "It cannot be said that the attempt to mount the locomotive was in the interest of the employer, or for the purpose of expediting the employer's work, since the employer was not interested in the sp.-cdy checking out of the appellee, but interested only in the checking out being accomplished. In our judgment the facts do not present a situation wherein the employee negligently per- formed a duty, or was guilty of negligence in the performance of a duty, but rather a case wherein he attempted unnecessarily to do a perilous act, not reasonably incident to his employment." 38 Where a workman quit his work at the end of the day and rode towards the other end of the mine on an engine with other em- ployees for the purpose of ascending and was injured, when the engine collided with cars which had been insecurely placed on the switch line, it was held that the injury arose out of and in the course of the employment. The court said: "While he had ceased work at the coal loader, he was still in the pit. the place of employment, and still under the direction and control of the defendant. It cannot be said he was outside of his employment, when he was passing from one part of the pit to the other. ridini_ r on the engine, a common means of transportation in going to the tipple, an appliance of the defendant for the purpose of ascend- ing above ground. It was the usual custom of the miners "to ride out upon the last trip" upon the dinkey engines, and this was done with the acquiescence of the defendant. The injury which occurred on the trip was a result which was or should 38. Sedlock v. Carr. Coal & Mfg. Co . 98 Kan. 680, L. R. A. 1917 B. 372. 159 Pac. 9, 15 N. C. C. A. 237. 39. Inland Steel Co. v. Lambert, 64 Ind. App. , 118 N. E. 162, 15 N. C. C. A. 240, 1 W. C. L. J. 347. .549 268 WORKMEN'S COMPENSATION LAW have been in contemplation of the defendant and which grew out of and was reasonably incident to plaintiff's employment." 40 Where an employee attempted to cross between the cars of a train standing on the track, and the train moved, precipitating the employee to the ground and killing him, it was held that the accident did not arise out of the employment, the court saying: "To establish that the accident arose out of the employment it must be shown that it was part of his employment to hazard, suffer or do that which caused the injury. Therefore where a workman has permission to traverse his employer's property, but not by any prescribed route, or marked path, such permission does not entitle him to climb over or scramble under any obstacle which he may find on a route chosen arbitrarly by him." 41 Where an employee, while attempting to leave a ship, fell from a plank used in reaching the quay and sustained injuries re- sulting in his death, it was held that the accident arose out of and in the course of the employment. 42 Where a warehouse employee was killed by an electric current when he went into the washroom to clean up after his day's \vork, it was held that the accident arose out of and in the course of his employment. 43 Where a boy was suspended from work and ordered to go to the pit bottom, a place where the miners waited for the ascension of the cage, but refused to do so and was injured, it was held that his injury did not arise out of nor in the course of the em- ployment. 44 40. Chance v. Reliance Coal & Mining Co., Kan., (1920), 193 Pac. 889, 7 W. C. L. J. 201. 41. Lancashire & Yorkshire Ry. v. Highley, (1917), W. C. & Ins. Rep. 179, 15 N. C. C. A. 210. 42. Duck v. North Sea Steam Trawling Co. Ltd., (1915), W. C. & Ins. Rep. 529, 15 N. C. C. A. 257. 43. Hollenbach Co. v. Hollenbach, 181 Ky., 262, 204 S. W. 152, 2 W. C. L. J. 492. 44. Smith v. South Normanton Colliery Co., (1903), 1 K. B. 204, 5 W. C. C. 14, 7 N. C. C. A. 422; Schlenker v. Panama Col. Expos. Co., 1 Cal. I. A. C. D. (1914), 9, 7 N. C. C. A. 423. 550 ACCIDENT ARISING OUT OF COURSE OP EMPLOYMENT. 268 Where an employee was injured after the whistle blew ;mlyment. There is a direct causal connection here between the fact trat the man was on the street and the fact that he was injured. The accident was a natural accident of his work resulting from th xpoMire by 85. Keaney's case, 232 Mass. 532, 122 N. E. 739. (1919), 18 N. C. C. A. 1039, 4 W. C. L. J. 103. 86. Siglin v. Armour & Co., 261 Pa. 30, 103 Atl. 991, 16 N. C. C. A. 895, 2 W. C. L. J. 556. 565 271 WORKMEN'S COMPENSATION LAW the necessity of his going upon the street while performing such work. He was not exposed to this danger of the street 'apart from his employment. ' The, causative danger was peculiar to the work, in that, had he not been on the street in the course of his duty, he would not have been injured." 87 An employee, engaged in delivering a window frame, accepted a proffered lift from a boy with a wagon and pony. The pony gave a sudden lurch, throwing the employee from the cart r.nd injuring him. It was held that the applicant was doing work with- in the scope of his duty at the time of the accident and that the accident was due to a special risk incident to the employment. Therefore the accident arose out of and in tho course of the employment. 88 Where an employee's duties required him to meet trains at a station, and while there he slipped and fell on ice, striking a rail and breaking his leg, it was held that the accident arose out of the employment, the court saying: "The conclusion that I have come to is this that it is a complete error to attribute this accident merely to what was called a 'snow risk,' * * *. A railway station is, in one sense, a public place to which all members of the public have a right of access. * * * To my mind a railway station is, of itself, a place where those who are employed in connection with it necessarily run risks which are not common to members of the public in the ordinary sense at all. I can scarcely conceive that if a railway porter fell from the platform to the rails, and was either injured by the fall or run over by an engine, he would not be entitled to say, apart from special circumstances, that the acci- dent arose out of the employment; and so it would seem to me, subject to a point which I conceive to be settled by authority in the workman's favor, would be the position of the claimant m this case." 89 87. Globe Indem. Co. v. Indus. Ace. Comm. of Cal., 36 Cal. App. 280, 171 Pac. 1088, 16 N. C. C. A. 907, 2 W. C. L. J. 31; Miller v. Taylor, 173 App. Div. 865, 159 N. Y. S. 999, 12 N. C. C. A. 192. 88. Mullinger v. Bidewell, (1917), W. C. & Ins. Rep. 51, 15 N. C. C. A. 252. 89. Blake v. Ramsey, (1917), W. C. & Ins. Rep. 84, 51 Ir. Law Times Rep. 6, 15 N. C. C. A. 222. 566 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 271 A porter was delivering a parcel, and upon arriving at his destination he failed to find anyone in, and sat down to rest While noting lie fell down into the areaway below, sustaining juries from which he died. It was held that there was no evidence tending to show that the deceased was subjected to any unusual risks, and that the accident did not arise out of and in the course of the employment. 80 Where a section foreman was killed after mailing pay checks in accordance with his duties, and while returning home, where he was required to be on call at the time to clean switches, it was held that the accident arose out of and in the course of the em- ployment. 91 In denying compensation for injuries sustained while running across a street to obtain material for his employer, the court said : "I think this is a plain case. The man was crossing the road, and. \\;is knocked down by a tramcar. There is no suggestion that he \\as told to run across the street. It seems to me that it is tho common case of a street accident not in any way arising out of the employment." 92 A railway policeman was struck by an engine and killed when he \\.is crossing a track, while returning from depositing cash boxes in a bank, which wns part of his duties. It was held th$t thei ;K i ident arose out of the employment. 98 A fireman, employed in the canal zone, was injured while per- forming service outside of the territory which was under the control of the United States. It was held that he was injured in the course of the employment. 04 Whore the duties of an employee consisted in setting up ma- chinery and driving automobiles in his employer's business, and he was killed by the overturning of his automobile, it was held 90. Kettle v. McKay ft Ryland, (1916), W. C. ft Ins. Rep. 297, 15 N. C. C. A. 220. 91. Papinaw v. Grand Trunk Ry. Co. of Canada, 155 N. W. 545, 12 N. C. C. A. 243, 189 Mich. 441. 92. Symmonds v. King. (1915), W. C. & Ins. Rep. 282. 93. Grant v. Glasgow ft So. Ry. Co., 45 So. L. R. 128, (1907), 1 B. W. C. C. 17; Bett v. Hughes, (1914). 8 B. W. C. C. 362. 94. In re Claim of James Nellis, Op. Sol. Dep. C. ft L. (1915). 221. 567 271 WORKMEN'S COMPENSATION LAW that the accident arose out of and in the course of the employ- ment. 05 Where a driver was killed by falling material from a building under construction on a public street, it was held that the injury arose out of the employment. 96 Where an errand boy was struck by a train while traveling a customary route on an errand for his employer delivering checks, it was held that the accident arose out of and in the course cf em- ployment. 97 An employee was killed when the engine he was driving crashed through a bridge. At the time of the accident the employee was moving the engine from one place, where he had completed the job he was engaged in, to another place where the engine was to be used. It was held that the injury arose out of and in the course of the employment. 98 Where a construction foreman arrived at the place of his em- ployment thirty minutes prior to the time for beginning work, and proceeded across the street to telephone concerning the day's work, the 'phone being ordinarily used for that purpose, it was held that an injury sustained in crossing the street arose out of the employment. A reasonable time before and after working hours. is allowed as included within the term of employment, -md the previous acquiescence of the employer in the practice of using public telephones justified the foreman in using it upon this occasion. 99 Where the master of a schooner was ashore on ship's business, and slipped upon an orange peeling and fell, sustaining injuries to his hip of a permanent character, it was held that while the accident occurred in the course of the employment it did not arise 95. State ex rel. Nelson Spelliscy Co. v. District Court of Meeker Coun- ty, 128 Minn. 221, 150 N. W. 623, 11 N. C. C. A. 636. 96. Mahowald v. Thompson-Starrett Co., 134 Minn. 113, 158 N. W. 913. 97. Chicago Packing Co. v. Industrial Bd., 282 111. 497, 118 N. E. 727. 98. Pace v. Appanoose County, 184 Iowa 498, 168 N. W. 916, 2 W. C. L. J. 884. 99. Mueller Const. Co. v. 'Indus. Bd. of 111. et al., 283 111. 148, 118 N. E. 1028, 1 W. C. L. J. 943. 568 ACCIDENT ARISING OUT OF COURSE OP EMPLOYMENT. 271 out of the employment, but was a risk to which the commonalty was exposed. Compensation was denied. 1 Whore a salesman slipped and fell while on the way to the homo of a prospective customer and fractured his shoulder, the injury was held to have arisen out of and in the course of his employ- ment. 2 Compensation was awarded for an injury received by a workman ;is lit- was returning to his employer's office after completing .1 piece of work for the employer at another place. 3 Where a repair man on cars was injured when he went to secure a measurement from a car in the yards, his injuries wen- caused by an accident arising out of the employment. 4 In a Kansas case it was said: "The court concludes that tho word 'about,' as applied to a mine, fixes the locality of the accident for which compensation may be recovered, and that the accident must occur in such close proximity to the mine that it is within the danger /.one necessarily created by those peculiar hazards to workmen which inhere in the business of operating the mine. I :' the accident occurs outside this /one, the distance from the mine, whether very near or very far, is immaterial. In this case the workman was a messenger who had left one mine on an errand and had not arrived at the other. lie was injured on the premises of the railway company, which lay between the two mines." 5 Where an employee of a commission merchant, while crossing a street, during working hours in his working clothes to get refresh- ments in pursuance to a custom of the employees was injured, while talking to a prospective customer. It was held the accident arose out of and in the course of his employment." 1. Chapman v. Pearn (owners of), 9 B. W. C. C. 224, 12 N. C. C. A. 368. 2. Gaffney v. Travelers' Ins. Co., Mass. W. C: C.. (1913), 339. 7 N. r. C. A. 429. 3. Coeman v. Quilfoy Cornice Works, (Cal.). 1 Nat. Comp. Journ. (1914), 18, V N. C. C. A. 429. 4. Meyers v. La. Ry. & Nav. Co., La. , 74 So. 256, A 1 W. C. L. J. 705. 5. Bevard v. Skidmore-Patterson Coal Co.. Kan. , 165 Pac. 657, A 1 W. C. L. J. 597. 6. State Industrial Comm. v. Voorhees, App. Div. . (1920), 18, 4 N. Y. S. 888. 7 W. C. L. J. 238. 569 272 WORKMEN'S COMPENSATION LAW 272 Street Accidents. Deceased was an engineer by pro- fession, and had no fixed hours of service. He was sent out by his employer to examine gas burners and to report back. Upon his return he arrived .in the city in the night, and was struck by an automobile and killed while going home to sleep for the night. The court in holding that the accident arose out of and in the course of the employment said: "Since deceased was compelled to return to the city at an hour when he could not at once commu- nicate with his superior, and had to stay somewhere until he could report, he cannot be charged with a departure from his employ- er's service because, when hurt, he was going to his home for a lodging rather than to a hotel; hence the findings of the referee are ample to sustain the ultimate conclusion upon which the award of compensation rests, to the effect that plaintiff's husband met his death by accident during the course of his employment with the defendant company." 7 A laundry driver was struck and injured by an auto truck while he was carrying laundry from a hotel to the laundry. He had forgotten to collect it when his team was hitched up, so while his horses were eating, he proceeded to carry it to the laundry, in order that it would be there on time. He sued the defendants in a common-law action, and they pleaded that all the parties were under the compensation act and that the suit should come under the compensation act. The court so held and retained the case for determination according to the compensation act. "The Court was right in holding, as a matter of law, that the injury to the plain- tiff arose out of his employment. It was a street risk to which the work subjected him. This should be understood to be settled law in this state as it is generally in other states. Mahowald v. Thomp- son-Starrett Co., 134 Minn. 113, 158 N. W. 913, 159 N. W. 565; and cases cited ; Kunze v. Detroit, etc., 192 Mich. 435 ; 158 N. W. 851, L. R. A. 1917A, 252, Burton Auto Transfer Co. v. Ind. Ace. Com'r. (Cal. App.) 174 Pac. 72; Keaney's case, 232 Mass. 532, 122 N. E. 739 ; Globe Ins. Co. v. Ind. Ace. Co., 36 Cal. App. 288, 7. Haddock v. Edgewater Steel Co., 263 Pa. 120, 106 Atl. 196, (1919), 18 N. C. C. A. 1041, 3 W. C. L. J. 786. 570 ACCIDENT ARISING OUT OF COURSE OP EMPLOYMENT. 272 171 Pac. 1088; Consumers' Co. v. Ceislik (Ind. App.) 121 N. E. 882; Bachman v. Waterman (Ind. App.) 121 N. E. 8. It is now the definitely settled law in England. Dennis v. A. J. White & Co., (1917), App Cas. 479; Arkell v. Gudgeon, 118 L. T. R. 2-Y-v The injury arose in the course of the employment of the plaintiff. It is true that he \v;is not using his delivery wagon and that it was not customary to carry laundry as he was doing at the time; l>ut lie was working in furtherance of his employer's interest. The laundry was received by the laundry company after the accident and laundered. lie did not step aside from his work for some purpose of his own but was actually furthering the business <>f the company. It had never told him to do or not to do as he did. Such an occasion had not arisen. It is clear that if an injury had not intervened there would have been no thought of criticism. It would be too severe a rule that would permit a finding, if the proceeding were against the laundry company under the Com peusation Act, that the plaintiff was not in the course of his em- ployment. The result here should be the same. The holding that, as a matter of law, the injury arose out of the employment was right. The cases on principle, and some with somewhat re- sembling facts, support the rule. Mahowald v. Thompson-Starrett Co., l:U Minn. 113, 158 N. W. 913, 159 N. W. 565, State v. District Court, 141 Minn. 61, 169 N. W. 274; State v. District Court, 172 N. W. 897; Grieb v. Hammerle, 222 N. Y. 382, 118 N. E. 805; Mueller Con. Co. v. Ind. Board, 283 111. 148, 118 X. E. 1028, L. R. A. 1918F, 891, Ann. Cas. 1918E, 808; Kunze v. De- troit, etc., 192 Mich. 435, 158 N. W. 851, L. R. A. 1917A, 252; Robinson v. State, (Conn.), 104 Atl. 4!1 : Frint .Motor Co. v. Tud. Com., 168 Wis. 436, 170 N. W. 285 : Dennis v. A. .1. White & Co., (1917), A. C. 479; Arkell v. Gudgeon, 118 L. T. R. 258." 8 An employee's duties necessitated that he write letters and mail them at a street box. While crossing the street, after mail- ing a letter, on his return to his place of employment, he was struck and injured by an automobile. In affirming an award 8. Hansen v. N. W. Fuel Co., 144 Minn. 105, 174 N. W. 726. 6 W. C. L. J. 284. 571 272 WORKMEN'S COMPENSATION LAW for compensation the court said: "The conditions under which the work here was required to be performed took Roberts upon the street in the course of his employment in exactly the same manner as that in which a factory hand is subjected to the dan- gers of the factory while in the course of his employment. There is a direct causal connection here between the fact that the man was on the street and the fact that he was injured. The accident was a natural accident of his work resulting from the exposure occasioned by the necessity of his going upon the street while performing such work. He was not exposed to this danger of the street 'apart from his employment.' The causative danger was peculiar to the work, in that, had he not been on the street in the course of his duty, he would not have been injured. * * * The petitioner contends that, because Roberts was exposed only to the ordinary perils of the street to which any other person is exposed, he does not fall within the rule which awards compen- sation for an injury arising out of the employment of the injured man. When the logical result of the application of the rule for which petitioner is contending is considered, the justice of treat- ing this case as one arising out of Roberts' employment is ap- parent. Consider the case of a messenger boy. He is in no greater peril on the street than any other person there. He car- ries perhaps his message in his pocket, leaving his arms disen- gaged and perfectly free to move about. But he is on the street constantly in the course of his employment. To hold that Roberts is not entitled to compensation would be to hold that this mes- senger boy would likewise not be entitled to compensation for an injury caused to him by the perils of the street. The illus- tration might be extended further to truck drivers, teamsters, and numerous other classes of employment whose followers use the streets in the regular course of their duty, and whose peril on the streets is no greater than that of any other person, but who would not be injured but for the fact that their duty takes and keeps them on the street. It does not seem to us that the legislature ever intended that these persons should be excluded from the benefit of industrial accident compensation." 9 9. Globe Indemnity Co. v. Indus. Ace. Comm. of Gal., 36 Gal. App. 280, 572 ACCIDENT ARISING OUT OF COURSE OP EMPLOYMENT. 272 A motion pit-tun 1 employee reported for work and was in- formed that he would not be needed, but the employer's rules re- quired him to remain at the plant for possible service during the day. The plant occupied the four corners of intersecting streets, and the thoroughfares were constantly used by employees in p.-iNNJnir j'nun one part of the plant to another. On the* morning of the accident applicant crossed the street to change his coat pre- paratory to playing a game of chess and when returning he stop- ped in the street and engaged in conversation with fellow em- ployees. One of the director's automobiles approached and struck him. In reversing an award based upon the theory that the acci- dent arose out of the employment, the court said: "Even if it were conceded that injuries suffered by Stanley would have been com- pensable if they had resulted from an accident happening to him while actually traversing the street on the way from changing his co.it, for his own convenience, to a contest of chess, for his own pleasure, we have by no means settled the matter. If we admit that the risk in crossing the street was a risk incident to his em- ployment, upon the theory that, for the purpose of crossing and recrossing, the street was a part of the company's lot. we are yet afield. The thoroughfare was certainly not a part of the lot in the sense that Stanley might properly have loitered, or stood in social converse, upon it, as he might very properly have done up- on any part of the lot located upon the corners of the intersec- tion. When he stopped in the street he assumed a risk common to all who might sojourn there in the same manner. Under such circumstances his employer is not called upon to make compensa- tion for his injuries. They did not arise out of his employment." 10 A foreman of a street gang was struck and killed while er ing a street to'talk to a friend. In holding that the accident happened at a place where deceased might reasonably be. con- sistently with the performances of his duties, the court said: "Finally. Robinson's employment as foreman did not require his 171 Pac. 1088. 16 N. C. C. A. 907. 2 W. C. L. J. 31; McDonald v. Great Atlantic ft Pac. Tea Co.. Conn. . (1920). ill Atl. 65. 10. Balboa Amusement Producing Co. v. Indus. Ace. Comm. of Cal., 35 Cal. App. 793. 171 Pac. 108, 16 N. C. C. A. 906. 1 W. C. L. J. 747. 573 272 WORKMEN'S COMPENSATION LAW f uninterrupted attention. No doubt he was expected to work on the road in the larger intervals of his supervisory employment, but was necessarily a foreman at all times, and his conduct must be measured accordingly. Upon the findings of the commissioner the case turns on the question whether one employed as a fore- man of a repair gang on a much-traveled highway does- or does not step outside of his employment as a matter of law, because he starts across the road, in response to a friendly salutation, for the purpose of conversation, when there is no evidence as to how long he intended to talk, and no evidence that his starting to cross the road did interfere, or that his intended conversation would have interfered, with the due performance of his work as foreman. We think this question must be answered in the nega- tive." 11 A truck driver, whose duties were not limited to fixed hours,, was ordered ttf take a pipe to the depot. The depot was closed so he stopped at his employer's office, where he usually stayed when not actively engaged, and when returning to his truck he was struck by a passing machine. It was held that the accident arose out of and in the course of the employment. 12 A teamster was killed while passing a building in construction, when heavy beams fell upon him and crushed him to death. Plain- tiff recovered a judgment at law against defendant, and the court held that since both parties were under the compensation act, the lower court should have reduced the verdict to the amount re- coverable under the compensation act. The case was remanded with instructions accordingly. 13 The general rule, supported by the weight of authority, is that when employees are injured on the street, from causes to which all other persons using the street are likewise exposed, the injury cannot be said to arise out of the employment. So where an em- 11. Robinson v. State, 93 Conn. 49, 104 Atl. 491, 17 N. C. C. A. 954, 2 W. C. L. J. 779. 12. Burton Auto Transfer Co. v. Indus. Ace. Comm. of Cal., 37 Cal. App. 657, 174 Pac. 72, 17 N. C. C. A. 955, 2 W. C. L. J. 750. 13. Mahowald v. Thompson-Starrett Co., 134 Minn. 113, 158 N. W. 913, 14 N. C. C. A. 904. 574 ACCIDENT ARISING OUT OP COURSE OF EMPLOYMENT. -~i- ployee whose business for the company required him to travel on the streets between the various establishments of his employer, slipped on an ice covered sidewalk while running to catch a street car and sustained injuries from which he died, the court, in refusing to make an award, said: "Slipping upon snow cover- ed ice and falling while walking or running is not even what is known as peculiarly a 'street risk;' neither is it a recognized ex- tra hazard of travel, or particularly incidental to the employ- ment of those who are called upon to make journeys between towns on business missions. * * * This unfortunate accident re- sulted from a risk common to all, and which arose from no special exposure to dangers of the road from travel and traffic upon it. It was not a hazard peculiarly incidental to or connected with deceased 's employment, and therefore is not shown to have a caus- al connection with it, or to have arisen out of it." 14 Where a workman is sent into the public streets on his em- ployer's business, whether habitually or occasionally, and he meets with an accident by reason of a risk of the streets to which his employment exposes him, the accident arises out of and in the course of his employment. Lord Finley, speaking for the House of Lords, gives the English rule on this subject as follows: "If i-vant in the course of his master's business has to pass along the public street, whether it be on foot or on a bicycle or on an omnibus or car, and he sustains an accident by reason of the risks incidental to the streets, the accident arises out of as well as in the course of his employment. The frequency or infrequency of the occasions on which the risk is incurred has nothing to do with the question whether an accident resulting from that risk arose out of the employment. The use of the streets by the workman merely to get to or from his work of course stands on a differ- ent footing altogether, but as soon as it is established that the work itself involves exposure to the perils of the streets the work- man can recover for any injury so occasioned. * * * 'The fact 14. Hopkins v. Michigan Sugar Co.. T84 Mich. 87. 150 X. W. 325, L. R. A. 1916A. 310; In re Edward J. McDonough. 2nd A. R. U. S. C. C. 243: In re Nelson L. Crapes. 2nd A. R. U. S. C. C. 286; Orsinnie v. Lorrance Conn. (1921). 113 Atl. 924. 575 272 WORKMEN'S COMPENSATION LAW that^the risk may be common to all mankind does not disentitle a workman to compensation if in the particular case it arises out of the employment." 15 A traveling salesman was injured by falling upon an icy street while going in pursuance of his duties, from the house of a cus- tomer to take a car to make another call. It was held that while the accident arose in the course of the employment, it did not arise out of it, as the danger of falling on the ice was not inciden- tal or peculiar to his employment, but was a hazard common to every one using the streets. The court said: "The finding that the injury was received in the course of the employment was warranted. The question remains whether there was any evidence that the injury arose out of the employment. An injury arises out of the employment when there is a causal connection between the conditions under which the work is to be performed and the resulting injurj r . An injury cannot be found to have arisen out of the employment unless the employment was a contributing, proximate cause. If the risk of injury to the employee was one to which he would have been equally exposed apart from his em- ployment, then the injury does not arise out of it. As was said by this court in McNicol's Case, 215 Mass. 497, at page 499, 4 N. C. C. A. 522, 102 N. E. 697, L. K. A. 1916A 306: 'The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and serv- ant.' " 16 15. Dennis v. White & Co., (1917), A. C. 479, 15 N. C. C. A. 294; Also Redner v. H. C. Faber & Sons, 223 N. Y. 379, 119 N. E. 842, 16 N. C. C. A. 903, 2 W. C. L. J. 538; Arkell v. Gudgeon, 118 L. T. R. 258, (1917), 17 N. C. C. A. 958. 16. Donahue v. Maryland Casualty Co., 226 Mass. 595, 116 N. E. 226 % 14 N. C. C. A. 491, L. R. A. 118A, 215; In re Betts, 64 Ind. App , 118 N. E. 551, 16 N. C. C. A. 904; International Harvester Co. of N. J. v. Indus. Board of 111., 282 111. 489, 118 N. E. 171, 16 N. C. C. A. 912; Charles R. Davidson & Co. v. M'Robb or Officer (1918), A. C. 304, 16 N. C. C. A. 912; Spencer v. "Liberty" (owners) (1917), W. C. & Ins. Rep. 293, 16 N. C. C. A. 918; In re OToole, 229 Mass. 165, 118 N. E. 303, 16 N. C. C. A. 916; Sym- monds v. King, (1905), W. C. & Ins. Rep. 282, 15 N. C. C. A. 254; State ex rel. Miller v. District Court of Hennipin County, 138 Minn. 326, 164 N. W. 576 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 272 Claimant was a traveling salesman. His employer was engaged in the manufacture of leather in New York City. The claimant occasionally visited the factory to procure samples. He was in- jured while riding in a public bus from White Plains to Port. Chester, and was, at the time of the accident, engaged in his reg- ular occupation of going from place to place for the purpose of selling goods. "Under group 32 of section 2 of the workmen's compensation law, the employer was engaged in a hazardous em- ployment; but the claimant was not so engaged. The hazards incident to manufacturing leather goods in no manner menaced this claimant, riding along on the highway in a bus with other passengers. In fact, the vicissitudes of the claimant, as he jour- neyed from town to town, were not in the remotest degree af- fected by the character of the business carried on by his em- ployer. His perils were not increased; his safety not diminished. It is not sufficient under the statute for the employer to be en- gaged in a hazardous employment ; the claimants must have been so engaged." 17 Deceased was a salesman for a lumber company, and while riding a motorcycle furnished by his employer, was struck by a train and killed. In affirming an award the court said: "Of course, the employer in this case was not in the business of operat- ing a motorcycle for gain. Its business was not the operation of motorcycles in any sense. I think, however, that 'pecuniary gain.' as used in the statute, merely means that the employer must be carrying on a trade, business, or occupation for gain in order to come within the act. If, in that connection, the purp>x, of using the motorcycle is profit, that is enough." 18 1012. 15 N. C. C. A. 256; DeVoe v. N. Y. St. Rys., 218 N. Y. 318. L. R. A. 1917A. 250 113 N. E. 256. 15 N. C. C. A. 255: Draper v. Regents of Uni- versity of Mich.. 195 Mich. 449. 161 N. W. 956, 14 N. ('. C. A. 934; Schroeder & Daley Co. v. Indus. Comm. of Wis., WIs. , 173 N. W. 328. 4 W. C. L. J. 576. 17. Mandle v. Steinhardt & Bro., 173 App. Div. 515. 160 N. Y. Supp 2, 14 N. C. C. A 491; Benton v. Frazer. 219 X. Y. 210. 114 N. E. 43, 14 N.C.C.A.492; Sickles v. Ballston Refrigerating Storage Co. 171 N. Y. App. 108. 156 N. Y. Supp. 864. 14 N. C. C. A. 493. 18. Mulford v. Pettit & Sons. 220 N. Y. 540. 116 N. E. 344. 14 N. C. 577 W. C. 37 272 WORKMEN'S COMPENSATION LAW A solicitor and collector for a life insurance company was fa- tally injured by a street car, when running across the street to take a car while in route to solicit business at the directions of the employer. In holding that the injury arose out of the em- ployment the court said: "In the case at bar, the workman to do the work of his employment must continually stand in danger of receiving an injury from accidents resulting from exposure to whatever risks and hazards are commonly attendant on the use of public streets and conveyances ; which risks to him are greater because more constant than those that are incidental to the occa- sional and casual use of such streets by persons who use them in the ordinary way. ' ' 20 Where an employee of a commission merchant, while crossing a street, during working hours in his working clothes, to get re- freshments, in pursuance to a custom of the employees, was in- jured, while talking to a prospective customer, it was held the accident arose out of and in the course of his employment. 21 C. A. 492; Mueller Construction Company v. Indus Bd. 'of 111., 283 111. 148, 118 N. F. 1028, 16 N. C. C. A. 902; Scully v. Industrial Comm., 284 111. 567, 120 N. E. 492; Keaney's Case, 232 Mass. 532, 122 N. E. 739, 4 W. C. L. J. 103; Malone v. Detroit United Ry. Co., 202 Mich. 136, 167 N. W. 96, 2 W. C. L. J. 293; Coster v. Thompson Hotel Co., 102 Neb. 585, 168 N. W. 191, 16 N. C. C. A. 905; Kunze v. Detroit Shade Tree Co., 192 Mich., 435, 158 N. W. 851, 15 N. C. C. A. 253; London & L. Indem. Co. v. Indus. Ace. Comm., 35 Cal. App. 681, 170 Pac. 1074, 16 N. C. C. A. 909; Beaudry v. Watkins, 191 Mich. 445, 158 N. W. 16, 15 N. C. C. A. 254; In re Raynes, 64 Ind. App., 118 N. E. 387, 16 N. C. C. .-'.. 909; Putnam v. Murray, 174 App. Div. 720, 160 N. Y. S. 811, 15 N. C. C. A. 256; Indus. Comm. of Colo. v. Aetna Life Insurance Co., 64 Colo. 480, 174 Pac. 589 17 N. C. C. A. 955; Bachman v. Waterman, Ind. App. , 121 N. E. 8 17 N. C. C. A. 956; McMinn v. Kern Brewing Co., 202 Mich. 414, 168 N. W. 542, 17 N. C. C. A. 957; State ex rel. London & Lancashire Indem. Co. of America v. District Ct. of Hennipin County^ 141 Minn. 348, 170 N. W. 218, (1919), 17 N. C. C. A. 958. 20. Morans Case, -- Mass. , (1920), 125 N. E. 591, 5 W. C. L. J. 400. 21. State industrial Comm. v. Voorhees, App. Div. , (1920), 18* N. Y. S. 888, 7 W. C. L. J. 238. 578 ACC1DKM AKISINU OUT OP COURSE OP EMPLOYMENT. 273 NON WOKKINU TIME INJURII .>. 273. Miscellaneous Accidents Before And After Work Hours. Whore a millwright, on leaving his employer'* ]>l;mt long after customary work hours, discovered a fire in the plant, and re- turned to the building to put it out, and lost his life in the fire, this evidence was held to support a finding that the accident arose out of and in the course of the employment. "He must have en- tered the building voluntarily, and knowing the possibility of danger in so doing from its being then on fire. But it is a reason- able inference that he did so for either one or both of these purposes : (1) 1'ndtT the specific duty devolving upon him to have charge of and look after the valuable patterns essential for the work being done by his employer; (2) from the sense of obligation to use a reasonable amount of care to save his employer's property at a time of such emergency. As to each of these it needed no specific instructions from any superior to perform such services or volun- tarily assume such responsibility while making an effort within the field of reasonable care to save the property of hia employer. While so doing he cannot be considered, as a matter of law, to be a straii-.T. M.-Phee's Case, 2^2 Mass. 1, 4, 109 N. E. 633; Munw \ hid. Brd., 274 111. 70, 113 N. E. 110. We do not think that either the letter or the spirit of the Workmen's Compensation Act requires that such employee should be penalized for obeying such a natural and commendable instinct on his part."' A workman furnished his services and his team to the city of Minneapolis for stated daily compensation. He fed and stabled his team at his own expense. His work ceased at 5 iu the evening One evening after work he was caring for his horse in his stable when the horse kicked and killed him. The court said: "The facts stated give no right to compensation. The plaintiff's work for the day was done. He was not to do service for the city until the next morning. The horses were his and he fed and cared for them and furnished them and his wagon ready for work at a definite time. The accident did not arise out of his employment any more than 22. Bell City Malleable Iron Co. et al. v. Rowland. 170 Wls. 293. 174 N. W. 899, 5 W. C. L. J. 333. 579 273 WORKMEN'S COMPENSATION LAW would an accident which came while he was repairing his wagon or while doing other work in preparation for his next day's work for the city. The relator cites where a teamster, injured while caring for his horses after their work for the day was done, was allowed compensation. Smith v. Price, 168 App. Div. 421, 153 N. Y. Supp. 221 ; Costello v. Taylor, 217 N. Y. 179, 111 N. E. 755 ; Suburban Ice Co. v. Industrial Board, 274 111. 630, 113 N. E. 979. They involve situations where a teamster was doing work for his employer in the care of his employer's team and as a part of the work for his employer." 23 An employee on a tug boat was discharged for being intoxicated, instead of leaving the premises immediately, he remained therein for some time afterwards. His body was found later in the river in the vicinity of the pier. The court said: "If it be considered that, after the discharge of the deceased his employment continued a reasonable length of time to enable him to remove his belongings from the boat, it must nevertheless have ceased immediately upon his leaving it. It cannot be inferred that he fell into the water while in the act of leaving the boat, or prior thereto, rather than after leaving it he fell from the dock, -while proceeding along its edge in an intoxicated condition. Indeed, it would seem that, if he fell while in the act of leaving, the engineer who saw him start for shore would have heard a splash of water when he struck it, or heard him cry for help. Only a mere guess leads to the con- clusion that the deceased fell into the water prior to attaining a secure foothold upon the pier. There was no proof, therefore, that the deceased came to his death through an accident arising in the course of his employment." 24 Where a railroad engineer was injured by falling from his engine, while assisting in "spotting furnaces," the lower court found that the employee had been laid off for being intoxicated about an hour previous to the accident. This decision was reversed on appeal upon a finding against the employer on the question of 23. State ex rel. Jacobson v. District Court of Hennipen County, 144 Minn. 259, 175 N. W. 110, 5 W. C. L. J. 288 (1919); In re Frank Fair, 2nd A. R. U. S. C. C. 269. 24. In re Whalen, 186 App. Div. 190, 173 N. Y. S. 856, (1919), 18 N. C. C. A. 1037. 580 ACCIDENT ARISING OUT OP COURSE OF EMPLOYMENT. 273 suspension, ;ind il was held that therefore the accident arose out of and in the course of the employment.-"' An electrician received injuries due to the explosion of a dynamite cap when he lit a cigarette while preparing to begin work. Smok- ing was not prohibited about the premises. In reversing a de- cision of the lower court denying compensation the Supreme court held that the burden of showing that the injury arose both out of and in the course of the employment rested upon the claimant; that since the claimant was at the time in the shop preparing to start work, the injury occurred in the course of the employment; that a "causal connection between the employment and the injury * * * is shown by the u^ of dynamite caps upon the premises, and th- presence thereof in the room where the plaintiff was regularly employed." 26 The plaintiffs, in two common law actions, were employees of the Northern States Power Company. The crew went from one place to another, in the performance of their duties in a truck furnished for that purpose by the employer. The employer did not undertake to convey his employees to and from work, but ["nnitted any who chose to ride to go on the truck as far as it would go in their direction. On the evening of the accident the gang worked until 10 p. in., and several of the employees availed themselves of the opportunity of riding home on the truck. While en route the car collided with a street car. resulting in injuries to the two plaintiffs. The question in both cases was whether the in- jury was one which would come under the provisions of the Work- man's Compensation Act or could the actions at law he maintained. The court decided, although they were riding on the truck of their employer, it clearly appears that their contract of employment imposed no obligation upon the employer to transport them to or from the place of work, and that they were merely riding as licensees to serve their own convenience. Their service for the day had terminated; they had left the place where such service had 25. Dainty v. Jones & Laughlin Steel Co., 263 Pa. 109. 106 Atl. 194, (1919), 18 N. C. C. A. 1036. 2. Rish v. Portland Cement .Co., (Iowa), 170 N. W. 532, (1919), 18 N. C. C. A/1032; Bell's Case. Mass. . (1921), 130 N. E. 67; Western Coal and Mining Co., Indus. Comm., 111. , (1921), 129 N. E. 779. 581 273 WORKMEN'S COMPENSATION LAW been performed, and were no longer engaged in performing any service for their employer. Under such circumstances they were not within the provisions of the compensation law and the trial court ruled correctly. 27 Where an employee was working evenings, assisting other em- ployees to install a recently moved plant of their employer, and pinched his finger, which later resulted in death, it was held that the accident arose out of and in the course of the employment. 28 A workman, who was feeling poorly was told to lay off until he would be able to go to work again. He returned the next morn- ing and found a slip in his locker to be used in his day's work. He began work in accordance with the Directions. Later in the day he was found dead. It was held that, since the relationship of master and servant was only temporarily suspended, when deceased returned and began work according to the directions on the slip, the relationship of master and servant was again estab- lished, and the accident arose out of and in the course of the em- ployment. 20 "Where a fireman in an office building died from the effects of inhaling fumes while attempting, after work hours, to put out a fire in the boiler room, it was held that the accident arose out of and in the course of the employment. 30 Several employees were waiting on a pier until a boat departed in order that they might begin work. During this time a scaven- ger drove up to the pier and began to unload rubbish. The men walked over towards the wagon to watch the man unload it. A dynamite cap, which was among the rubbish, exploded and killed claimant's husband. Neither the pier in question nor the wooden dock was controlled nor owned by the defendant. It was held that 27. Erickson v. St. Paul City Ry. Co. and Omalle}' v. Same, 141 Minn. 166, 169 N. W. 532, 3 W. C. L. J. 154; Otto v. Duluth St. Ry. Co., 138 Minn. 312, 164 N. W. 1020. 28. Perdew v. Nufer Cedar Co., 201 Mich 520, 167 N. W. 868, 2 W. C. L. J. 313. 29. Chicago Cleaning Co. v. Indus. Bd. of 111., 283 111. 177, 118 N. E. 989, 1 W. C. L. J. 940, 16 N. C. C. A. 928. 30. Munn v. Industrial Bd. of 111., 2?4 111. 70, 113 N. E. 110, 12 N. C. C. A. 652. 582 ACCIDENT ARISING OUT OP COUESE OP EMPLOYMENT. 27-'{ there was no causal connection between the conditions under which the worlp WHS required to be performed and the resulting injury, and the risk was not incident to the employment but com- mon to all persons in the vicinity. 81 Where a workman was found dead in a room, where he was working overtime lifting hot damp cloth in a damp room, and medical testimony was to the effect that death was due to exertion of his work in a hot room and a weak heart, but that with either of these factors absent he would not have died. The court held that the Evidence warranted a finding that the deceased received a personal in jury arising out of and in the course of the employ - Illrllt. 32 It was customary for porters in a hotel to leave the place when off duty or be subject to call when the clerk saw fit to direct them to perform some duty if they remained around the hotel. Deceased was off duty and was found dead in an elevator used for freight purposes. It was held that, in the absence of any positive evidence to substantiate a finding that deceased was performing some duty connected with his employment when he met his death, an award could not be allowed to stand. 33 Compensation was denied for the death of an employee who was killed while on his way to have his watch tested after working hours, in accordance with a rule of the company which required that every employee should have his watch tested every two weeks. The employee was not paid for the time consumed in making the test. The court held that deceased was not employed to have his watch tested and therefore was not engaged in any duty con- nected with the employment when injured. His risk was that of the commonalty. 84 31. Buvia v. Oscar Daniels Co., 203 Mich. 73, 168 N. W. 1009, 17 N. C. C. A. 960. 32. In re Mooradjian, 229 Mass. 521, 118 N E. 951, 16 N. C. C. A.. 920. 1 W. C. L. J. 812. 33. Savoy Hotel Co. v. Indus. Bd. of 111., 279 111. 329, 116 N. E. 712, 15 N. C. C. A. 232. 34. De Voe v. N. Y. State Rys., 218 N. Y. 318, L. R. A. 1917A, 250, 118 N. E. 256. / 583 273 WORKMEN'S COMPENSATION LAW Where a bridge worker was struck by lightning, while sitting in a tent provided by the employer as sleeping quarters for his employees, it was held. that the accident was in the course of the employmet, but did not arise out of the employment. 35 An employee's duties required him to take his employer's horse to the country on Saturday for pasture over Sunday, and then takes the horse back on Monday morning. While caring for the horse on Monday morning preparatory to starting for the city he was injured. It was held that the injury was received in the course of the employment. 36 Where a workman was injured while working a few minutes overtime, it was held that he was entitled to compensation for an accident arising out of his employment. 37 An employee was injured on his way home after putting up las team. The applicant was taking his books home to make the nec- essary entries for the day. There was a place provided for this at the laundry where, he worked. It was held that the accident did not arise out of nor in the course of the employment. 38 Where a workman off duty went upon a bin, to talk with a man emptying gravel, about going home the following Sunday, and when leaving voluntarily and with no emergency for immediate action, attempted to empty a box of gravel, and in so doing fell overboard and was drowned, the accident was deemed not to have arisen within the course of his employment. 39 A traveling salesman, asphyxiated in a hotel through the neg- ligence of the hotel management, did not die from accidental in- juries arising out of the employment, the accident had no relation to the employment. The decedent was not doing anything for Ihe employer at the time. 40 35. Griffith v. Cole Bros, et al., 183 la. 415, 165 N. W. 577, 1 W. C. L. J. 368. 36. In re Chase, Ohio St. Liab. Bd. of Awards, (1913), 7 N. C. C. A. 414. 37. Gordon v. Eby, 1 Cal. I. A. C. D, (1914), 13, 4 N. C. C. A. 858, 7 N. C. C. A. 426. 38. Ogilvie v. Egan, 1 Cal. I. A. C. D., 79, (1914), 7 N. C. C. A. 426. 39. In re Claim of Simpson, Op. Sol. Dep. C. & L. (1915), 251. 40. Kass v. Hirschberg, Schultz & Co., 151 App. Dis. 300, 181 N. Y. Supp. 35, 5 W. C. L. J. 879. 584 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 273 In a Pennsylvania case in which it was held that the employee was not entitled to compensation, the court said: "In the present case the deceased was but an ordinary day labor- er, with fixed working hours, without the limits of which his em- ployer was not privileged to call upon him for his services with- out additional compensation. He had been ordered by his foreman to appear before the company's physician at Ronco for a physical examination on the evening of December 20, 1917. He did not ap- pear at that time and place, but voluntarily appeared at the home of the physician at Masontown the next evening, thus determining for himself when and where he would submit himself for examina- tion. He was not being paid for the time he consumed undergoing the examation or in going to and from the place of examination. He was not injured while performing any duty which he was em- ployed to perform, nor while actually engaged in the furtherance of the business or affairs of his employer." 41 It was held under section 2 subsection (d) of the Tennessee Aet that where a laundry employee was injured while pressing a skirt for the accommodation of a fellow employee after working hours and on a day when individual laundry work was forbidden, the in- jury did not arise "out of and in the course of the employment." " Where an employee was injured while "deadheading" into the terminal after work hours, having obtained permission from the train dispatcher, to ride the engine into the terminal after woik had ceased, and for which time he was to receive pay, his injuries arose out of and in the course of his employment.'- A custom among the shot firers of a mine required the firers to return in a reasonable time after shots were fired to see if all had exploded before turning the work over to the next shift. A miner, who after hours returned for that purpose, was shot by a mine guard who was negligent in the performance of his duties. 41. Wilson v. H. C. Prick Coke Co., Pa. , 110 Atl. 723, 6 W. C. L. J. 602. 42. Hinton Laundry Co. v. De Lozier. Tenn. , 225 S. W. 1037. (1920). 7 W. C. L. J. 360. 43. Payne v. Indus. Oomm., 111. . 1921. 129 X. E. 830. 586 274 WORKMEN'S COMPENSATION LAW It was held that the employee was injured in the course of his em- ployment. 44 Where a servant built a fire to warm himself in the morning be- fore beginning work and caused an explosion, on the surface above the mine where he was employed, which resulted in his injury, he was not entitled to the protection of the act. 45 Where a mail carrier was injured when going to the post office after hours to pack his mail for the following day's trip in re- sponse to an order of his superior, he was entitled to compen- sation. 48 274. During Temporary Cessation of Work at the Direction of Employer And For Own Purposes. A boy returning from the toilet crossed over a crane track to ask another employee the time. While crossing the track a bale of cotton, which was being rolled from a cart for the purpose of being loaded on a truck, fell and struck him as he was standing between the rails. The county court denied compensation on the ground that he had de- parted from his employment in crossing to the 4-foot way which lay beyond the way he usually took in going to the toilet. On appeal the court held that such departure was not one that would disentitle him to compensation for the injury sustained. 47 A laborer's duties were to move the track, upon which a crusher traveled, from the rear of the crusher and place it ahead of it. After completing his work, and while waiting for another employee to run the machine ahead, he sat upon the curb of the street. In the meantime a delivery wagon drove up, and he thought that the wagon could drive between him and the crusher without striking him, but unfortunately the wagon caught his leg, injuring it. The court held that the employee had a right to sit there, and that the accident arose out of and in the course 44. Atolia Mining Co. v. Indus. Comm., Cal. , 167 Pac. 148, A. I W. C. L. J. 114. 45. New Cornelia Copper Co. v. Espinoza, (1920), (Ariz.), (Cir. Ct. of App.), 268 Fed. 742. 46. In re Elmer H. Watson, 2nd A. R. U. S. C. C. 252; In re Chas. D. McClendon, 2nd A. R. 17." S. C. C. 253, 47. Corlett v. Lancashire & Y. Ry. Co., 120 L. T. R. 236, 18 N. C. C. A. 1043. 586 ACCIDENT ARISING OUT OP COURSE OF EMPLOYMENT. 274 of the employment. In allowing compensation the court quoted the following from the case of Tarper v. Weston-Mott Co., 200 Mich. 275, 166 N. W. 857; "The causative danger must be pe- culiar to the work, and not common to the neighborhood. It must be incidental to the character of the business, and not inde- pendent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence." 48 An employee whose duties required his presence within a building, wandered out onto a switch track for purposes of his own, which were in no way connected with his employment. While there he sustained an injury, when a car was struck by another car, which other employees were spotting, thereby catch- ing decedent under its wheels. It was held that the evidence failed to show that the accident arose out of and in the course of his employment. 48 Compensation was denied where a railroad section hand was killed by a stroke of lightning while in a barn, in which he had taken refuge from a storm at the direction of his foreman. It was held that being struck by lightning does not arise out of the employment. 60 An employee's duties included answering telephone calls, and when going to answer a call, which happened to concern his own personal business, he fell down stairs and sustained injuries. In allowing compensation the court said: "The evidence would warrant the conclusion that it was the duty of Cox to answer telephone calls even outside the usual business hours. If this was his duty, then the circumstances that the call happened to be one which interested him personally would not prevent his con- 48. Malone v. Detroit United Ry. Co., 202 Mich. 136. 167 N. W. 99, 2 W. C. L. J. 293. 49. Piske v. Brooklyn Cooperage Co., 143 La. 455, 78 So. 734, 2 W. C. L. J. 264; Weiss Paper Mill Co. v. Indus. Comm., III. , (1920), 127 N. E. 732. 8 W. C. L. J. 307; Reeves v. J. A. Dady Corp., Conn. . 113 Atl. 162 (1921). 60. Klawlnskl v. Railway, 185 Mich. 643. 152 N. W. 213. L. R. A. 1916A, 342. 587 274 WORKMEN'S COMPENSATION LAW duct in attending to the call from being service arising out of and in the course of his employment." 51 A workman during working hours went upon his employer's roof to get cool. This was in violation of a rule of the employer, though the rule had become a dead letter through nonenforce- ment. The next day his body was found beside the building, where it would be if he had fallen from a portion of the roof not protected by a railing, which place was twenty three feet from a door giving access to the roof from the room in which the work- man was employed. In holding that the accident arose out of the employment the court said: "The accident happened upon the premises of the employer and we think, in view of the prac- tice which might have been found to exist under which the men went upon the roof for fresh air, that the act of the deceased in going there on a warm night was not necessarily outside his em- ployment, but could have been found to be incidental thereto. An injury to a workman may arise out of and in the course of his employment even if he is not actually working at the time." 52 Where an employee left his immediate place o' employment and crossed over to bid a fellow employee good bye, when the lat- ter was leaving for the army, and while leaning on an unguarded cogwheel he caught his fingers and was injured, it was held that the accident did not arise out of the employment, for at the time of the accident the injured employee was not engaged in per- forming a duty connected with his employment. 53 A girl stopped work just before noon and went in search of the boss to inform him that she did not feel well and would not return in the afternoon. Not finding him she proceeded to comb her hair to remove particles of wool that usually collected there- on. While doing so her hair became entangled in a pulley and her scalp almost torn from her head. It was a usual custom among the employees to remove these particles from their hair 51. In re Qox, (Mass.), 220. 114 N. E. 281, 15 N. C. C. A. 271; St. Louis Sugar Co. v. Shraluka, 64 Ind. App. , 116 N. E. 330, 15 N. C. C. A. 271. 52. In re Von Ette, 223 Mass. 56, 111 N. E. 696, L. R. A. 1916D, 641. 53. Di Salvio v. Menihan Co. et al., 225 N. Y. 123, 121 N. E. 766. 588 ACCIDENT ARISING OUT OP COURSE OF EMPLOYMENT. 274 going home. It was held that the accident arose out of and in course of the employment. 54 The mere fact that the employee was resting for a moment whea tin- accident happened is not sufficient to establish a termination of the relationship of employer and employee, so as to deprive the injured employee of compensation for disabilr But where injury resulted from playing ball during the rest period, compensation was denied under the Federal Act. 8 * A fnivniaii kept his horse at the place of employment and used him in his employer's business at odd times, but he was not requir- ed to, nor did he receive pay for it. Upon one occasion he forgot to bring the horse across a certain creek during working hours and an employee volunteered to go and get the horse and some liquor for his foreman after work, and was accidently drowned. It was held that the employee did not meet with an accident ah ing out of nor in the course of his employment.' 7 An employee was required to perform duties any employee had for him to do, and one of the employees directed him to make a toy boat for him. While performing this task, with the knowledge of the employer, he cut oft one of his fingers. It was a rule of tl- company that if any special work was to be performed a special requisition, signed by the master mechanic, was to be procured. In this instance no such requisition was obtained. It was held that the employee was not engaged in performing any of the duties connected with his employment at the time of the accident. Com- pensation was denied. 68 "The rule as gathered from the decisions of the courts seems t) be that where an employee is injured when not actually at work, 54. Terlecki v. Strauss & Co., 86 N. J. L. 708. 92 All. 1087,^85 N. J. L. 454, 89 All. 1023. 4 N. C. C. A. 584. 55. Northwestern Iron Co. v. Indus. Comm., 160 Wis. 633, 152 N. \V. 416. 56. In re Elizabeth Trevena, 2nd A. R. U. S. C. O. 247. 57. Wood v. Chlco. Const. Co.. 1 Cal. I. A. C. D., (1914). 7 N. C. C. A. 434. 58. Bowers v. Detroit United Ry Mich. I. A. Bd.. 1 Nat romp. Jour.. (1914). 22, 7 N. C. C. A. 433; Cavero v. Hipolito Screen Co., 1 Cal. I. A. C. D., (1914). 9. 7 N. C. Ci A. 434. 589 -274 WORKMEN'S COMPENSATION LAW and when in a place where he has no right to be, or leaves his em- ployment temporarily for some private purpose, and not his em- ployer 's business, he is not within the line of his duty at such time. But the rule is different where there is merely a temporary cessa- tion of the work, or where the injury is received while on the em- ployer's premises before commencing or after quitting work, or at the noon hour. ' ' 69 Where an employee engaged in driving a dray wagon, stoppe.i for two minutes and crossed the street to get a glass of ale, and when returning he was run over and killed, it was held that lie was entitled to procure reasonable liquid refreshment, and that the accident arose out of and in the course of the employment. 60 Work was temporarily suspended at the directions of the employ- er, and the applicant, together with other employees, took seats on the railroad track near the car on which they were working. While sitting there the cars were moved, and in an effort to arise the ap- plicant was injured. It was held that he was still in the employ- ment and compensation Was awarded. 61 "We are inclined to give the phrase 'in the course of employ- ment' a somewhat liberal construction, and believe that an em- ployee ordinarily should be considered as being in the course of his employment from the time he reaches his employer's premises until the time he leaves them, and so if injured at any time be- tween the time of entering the employer's premises and departing therefrom he would be entitled to compensation, even though not actually engaged in work at the time of receiving the injury. But where during the hours of employment the employee temporarily quits the employer's premises for some purpose of his own and is injured, or where after the hours of labor and before leaving the employer's premises he goes to some other portion of the employ- er's premises for some private purpose of his own and is injured, 59. In re Phillips Ohio St. Liab. Bd. of Awards, (1913), 7 N. C. C. A. 433. 60. Martin v. John Lovibond & Sons, Ltd., (1914), W. C. & Ins. Rep. 78, 5 N. C. C. A. 985. 61. Robinson v. Kahl Const. Co., 111. I. Bd., (1914), 7 N. C. C. A. 428. 590 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 275 it cannot be said that In- is injured in the course of his employ- ment. "''- An employer was cntra^'d in piling billets, juid between each time he was required to erect a pile, there was a lapse of some 15 minutes during which he had nothing to do. During this time ho went over to another portion of the premises, and engaged in a conversation with .-mother employee on matters personal to himself, and while so doing fell and was killed. It was held that deceased had departed from his employment and that the accident did n;-t arise out of the employment. 03 An employee, who was injured when returning from a liberty loan meeting where he had gone at the direction of his superior was entitled to compensation under the Federal Act. * 275. Going to Report to Employer. Compensation was de- nied for the death of an. employee who was killed when he ?ii tempted to board a moving train in going to report to his employ- er. In holding that the accident did not arise out of the employ- ment, the court said that, "In attempting to board a moving ear the employee added peril to the usual hazard of the employ- ment. " ea An employee in a cafe was required to go to defendant's shop in the evening after her work to report to her employer and to re- turn the key. She was injured while crossing a railroad on her way to report. She might have taken a longer route and avoided tho raiload. It was held that the accident arose in the employment but did not arise out of it. 8 * Where a painter who was required to report to his employer's of- fice at the end of the day 's work, jumped upon a passing truck, and through the jolting of the truck was precipitated to the ground 62. In re Mitchell, Ohio St. Llab. Bd. of Awards, (1913), 7 N. C. C. A. 410. 63. Swing v. Kokomo Steel & Wire Co., Ind. App. . (1919), 12 N. E. 471. 6 W. C. L. J. 380. 64. In re John J. Simons, 2nd A. R. U. S. C. C. 257. 65. Jibb v. Chadwick, (1916), W. C. ft Ins. Rep. 342, 15 N. C. C. A. 248. 66. Hadwin v. Shepherd, (1915), W. C. ft Ins. Rep. 503, 15 N. C. C. A. 245. 591 276 WORKMEN'S COMPENSATION LAW and injured, it was held that the injury did not occur as the re- sult of an accident which arose out of a natural risk of the employ- ment. The claim was denied. The commission said : ' ' Had this claimant taken a street car and received an injury in conse- quence or suffered an injury while crossing the street or passing along the sidewalk, an entirely different question, and one very likely resulting in a different decision, would have been present- ed." 67 Where it was the duty of an employee to go to places aw'ay from the employer's office and return to the office to report, it was held that she' was all this time acting within the course of her employment, and accordingly when she was injured while alighting from a street car, after returning from he* errands elsewhere, she was entitled to compensation. 68 A conductor was killed by a landslide, while he was enroute to report the arrival of his train, at the point where the track was blocked by a previous landslide. This was the usual custom of conductors. It was held that deceased was acting in the course of his employment. 69 An employee arrived at work late in the morning and, believing that he would not be allowed to enter the mine after 7 a. m., start- ed to his employer's office to report, and while on the way another of defendant's employees threw a bone from a car and struck plaintiff, fracturing his skull. In affirming a judgment the court held that the plaintiff was not at the time of his injury an employee of defendant within the meaning of the compensation act, and was entitled to his action at law. 70 276. Lunch Hour Injuries, on the Premises and Going to Places off Premises for Luncheon. An empoyee stopped in a 67. Peers v. DeCarion & Co., 5 N. Y. St. Dep. Rep. 425, 12 N. C. C. A. 389. 68. Turgeon v. Fox Co., 1 Cal. I. A. C. D., (1914), 7, 7 N. C. C. A. 429. 69. Clark v. N. W. Pac. R. Co., 1 Cal. I. A. C. D., (1914), 6, 7 N. C. C. A. 428 70. Cox v. U. S. Coal & Coke Co., 80 W. Va. 295, 92 S. E. 559, 15 N. C. C. A. 271; In re Jane H. Graves, 2nd A. R. U. S. C. C. 264; In re Thomas M. Custer, 2nd A. R. U. S. C. C. 265. 592 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 276 room, which he had to pass through on his way back from lunch- eon, and s;it. down, holding a girl on his knee, until work time. In arising from his seat he placed his hand on a last of a monograM machine to assist himself in rising, when the stamping device of the machinr came down upon his hand. "It is apparent from this recital of facts that there was no causal connection between the employment and the injury. It was no part of the employ- ment to wait for 20 minutes under the circumstances disclosed in the packing room, although the employee was required to pass through it in a reasonable and orderly way to reach his labor. Whatever else may be said respecting his manner, of spending that period of time, plainly it was no part of his duty and had no relations to it. The injury occurred while he was attempting to extricate himself from a posture and course of behavior utterly foreign to the business of the subscriber. That risk was not in- cidental to his employment. The subscriber was in no wise re- sponsible for it. It was intentionally, intelligently and volunta- rily i'ic. med by the employee on an escapade of his own. Condi- tions may arise where the employee on the way to or on the return from meals may be injured on the master's premise* as a rational result of the contract of service although not actually engaged ;-t the moment in the work for which he was hired." 71 A car inspector fell from a trestle on the premises of his em- ployer, while on his way home to dinner, traveling over the rail road in preference to other ways, with the permission of the em- ployer, and while receiving pay for the time necessary to go and come from his meals. After deciding that the case did not fall within the rule allowing compensation for accidents occurring up- on the premises of the employer the court said: "Tested by the general character of the undertaking in which the deceased was engaged at the time of the accident the latter did not arise in the course of or spring out of his employment. Such a trip of an em- ployee as he was taking is not under ordinary circumstances part of the employment. It is true that it has been held many ir 71. Rochford'a Case (Mass.). (1919), 124 N. E. 891. 5 W. C. L. J. 248; In re Savage. 222 Mass. 205, 110 N. E. 283; Moore's Case, 225 Mass. 258. 114 N. E. 204: In re OToole, 229 Mass. 165. 118 N. E. 303. 1 W. C. L. J. 620. 593 W. C. 38 276 WORKMEN'S COMPENSATION LAW that, where an employer requests or customarily permits his em- ployees to eat their meals upon his premises or in some place pro- vided for them, the temporary interruption to their work thus caused will not be regarded as terminating their character as em- ployees or as excluding them from the protection of such a la^v as our Compensation Act (Consol. Laws c. 67). Highley v. Lan- cashire, etc. Ry. Co., 9 B. W. C. C. 496, 501 ; Blovelt v. Sawyer, 6 W. C. C. 16; Mottis v. Lambeth Borough Council. 8 W. C. C. 1. This view is in accordance with the rule which prevailed in negli- gence cases. Heldmaier v. Cobbs, 195 111. 172, 62 N. E. 853 ; Riley v. Cudahy Packing Co., 82 Neb. 319, 117 N. W. 765 ; Thomas v.. Wis. Cent. Ry. Co., 108 Minn. 485, 122 N. W. 456, 23 L. R. A. (N. S.) 954 But no case has been cited or found where an employee going for such a purpose to his home or other place selected by him a sub- stantial distance away from the 'ambit,' of his employment and from the employer's premises has been regarded as so engaged in the latter 's business that an accident then happening to him would be held to be one arising out of and in the course of his employment. On the contrary, it has been uniformly held that it did not so arise. Boyd on Workmen's Compensation Section 481; Ruegg on Employer's Liability & Workmen's Comp. 377; Brice v. Lloyd, 2 B. W. C. C. 26; Hoskins v. Lancaster, 3 W. C. C. 476, 478, 479; Hills v. Blair, 182 Mich. 20, 148 N. W. 243. " 72 A girl employee was injured while engaged in riding a truck, during her half hour intermission for lunch, according to a usual custom known to and approved by the employer. During the lunch period the employees were at liberty to remain on the premises or not as they might choose. It was held that the accident occurred in the course of the employment and arose out of the employ- ment. 73 Where an employee was expected to eat lunch and spend the noon hour at a factory, and to use the elevator when the occasion demanded, and he was found crushed between the elevator and the 72. Mclnerney v. Buffalo & S. R. Corp., 225 N. Y. 130, 121 N. E. 806, 3 W. C. L. J. 494. 73. Thomas v. Proctor & Gamble Mfg. Co., 104 Kan. 432, 179 Pac. 372, 3 W. C. L,. J. 712. 594 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 276 gate during the noon hour, it will, in the absence of direct evidence to the contrary, be presumed that the cause of the injury arose out of and in the course of the employment, and that at the time of the accident deceased was performing duties connected with his employment. 74 A crippled engineer, who was warned not to cross a certain rail- road bridge when crossing the river, did use the bridge contrary to orders, and was struck by a train and killed, while on his way to luncheon. It appeared that the employer had provided no place for employees to lunch at the end of the bridge where they worked. There were other bridges across the river, but as to their location, with reference to the place of employment, there was a lack of evidence. The court said: "Inasmuch as an injury occurring during the noon hour only arises out of and in the course of the employment when the employee is using a way which he had a right to use and which was the only available way, or as safe as any other available way, to reach the place he was to eat his lunch, it was incumbent on the administratrix to establish those facts by competent evidence. The record is silent upon that question and simply does not show whether or not there was such an avail- able way other than the crossing of the railroad bridge, * * * As it appears from the record that the deceased was violating an instruction of his employer, given by the superintendent in cha^e of the work, when the accident occurred, the injury cannot be said to have arisen out of and in the course of the employment."" An employee fell, while she was ascending the granite steps of her employer's premises, on her way back from lunch. She was carrying a Gladstone bag about 18 inches long and about a fojt high, and a grip, with a sweater under her arm, all of which were her personal belongings. The board found that the fall was caus- ed by accidentally striking her foot against the top step, that the employee was in good health, and no physical ailment or anything about her personal baggage contributed to her fall. The court, in 74. Humphrey v. Indus. Comm. of 111. et al., 285 111. 372, 120 N. B. 816, 3 W. C. L. J. 102. 75. Nelson R. Const Co. v. Indus. Com. of 111.. 286 111. 632, 122 N. E. 113, (1919), 18 N. C. C. A. 1035. 595 276 WORKMEN'S COMPENSATION LAW affirming the finding of the board that the hazard of falling was an incident of the employment and not a danger common to the community, and that her injury arose out of and in the course of her employment, said: "If the intestate had fallen and received the injuries she did while actively engaged in the performance of her duties, the risk and harm of that fall would have been an accident and hazard of her employment although the cause of her fall migut rest in pure conjecture and speculation. * * * When the in- testate fell she was not in the active performance of her duties, but was upon the premises of the subscriber and in its employ- ment. * * * The risk of a fall upon machinery, upon steps or passageways or over obstructions to travel, is a hazard to a de- gree common to all persons who enter or seek to enter a manufac- tory or a mercantile building or other building for business or for pleasure." 76 Where an employee tripped, while going down stairs 011 his way out to lunch, and fell, sustaining injuries which caused his death, it was held that the accident arose out of and in the course of the employment, the court saying that, "the leaving of the premises where he was employed was so closely connected with the employ- .nient as to render it a necessary incident to it." TT Where a hospital superintendent was struck and killed by a street car on his way home to dinner, compensation was disallowed, because of the insufficiency of the evidence to show that deceas- ed's death arose out of and in the course of his employment. 78 Where an employee was sitting on a large pieee of rubber in a room in the factory, at the noon hour, eating lunch, according to a custom tacitly consented to by his employer, when a pile of rub- ber fell upon him and broke his leg, it was held that at the time cf 76. Halletts' Case, 232 Mass. 49, 121 N'. E. 503, (1915), 18 N. C. C. A. 1022, 3 W. C. L. J. 481. For a former decision in the foregoing case see 230 Mass. 326, 119 N. E. 673. 77. Hoffman v. Knisely Bros., 199 111. App. 530, 15 N. C. C. A. 235; Johnson Coffee Co. v. McDonald, Tenn. , (1920), 226 S. W. 215. 78. Draper v. Regents of Univ. of Mich., 195 Mich. 449, 161 N. W. 956, 14 N. C. C. A. 934. 596 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 276 the accident the employee was performing a service growing out of and incidental to his employment. 79 An employer sustained serious bums as the result of an explo- sion of gasoline which occurred while deceased was lighting bis pipe, in a tool house to which he and his companion had resorted for the purpose of eating their lunch. There were tools, some gaso- line and a stove therein, the fire having been banked with sand and ashes. It was held that the accident arose out of and in the course of the employment, for the reason that deceased was doincj a reasonable and natural thing in seeking shelter during the noon hour for the purpose of eating his lunch; that there was no evi- dence that he knew there was gasoline in the tool house and that it would vaporize and explode ; that he violated no rule in so doin ; and that the evidence was sufficient to sustain the conclusion that he was within, and entitled to compensation under, the act. 80 Where an employee fell into a river and was drowned, while going to a toilet during the lunch hour, compensation was allowed to his dependents. The court held that the accident arose out of and in the course of his employment. 81 Where workmen were accustomed to place their bottles of coffee in the mouth of a galvani/ed pipe discharging heated air, and claimant was injured. l>\ coming in contact with a revolving fan when he attempted to do so through a door in a different place, it was held that the accident did not arise out of the employment/ 3 Where an employee was injured when he collided with another employee while running to the time clock when the whistle blew at noon, it was held that the accident arose out of the employ- ment. 83 79. Racine Rubber Co. v. Indus. Comm., 165 Wis. 600, 162 N. W. 664, 15 N. C. C. A. 280; In re Francis W. Quinlin, 3rd A. R. U. S. C. C. 171. HO. Haller v. City of I^ansing. 195 Mich. 753, 162 N. W. 335, 14 N. C. C. A. 950. 81. Milwaukee Western Fuel Co. v. Indus. Comm., 159 Wis. 635, 150 N. W. 988. 12 N. C. C. A. 77. 82. Mann v. Glastonbury Knitting Co., 90 Conn. 116, 96 Atl. 368. 83. Rayner v. Sligh Furniture Co.. 180 Mich. 168. 146 N. W. 665. 4 N. C. C. A. 851, L. R. A. 1916A, 22. 597 276 WORKMEN'S COMPENSATION LAW A foreman of a logging 1 crew was found dead, upon the return of other members from lunch. He had evidently been killed in- stantly by an explosion of dynamite. It was customary to dyna- mite out any stumps which obstructed the roadways. It was held that the evidence was sufficient to warrant a finding that the employee's death was due to an accident that arose out of and in the course of the employment, and there was no evidence that the injury was self inflicted. 84 An employee who was working on top of a roof when he was called to lunch by the foreman, started to come down a rope instead of a ladder provided for that purpose, and was fatally injured. In holding that the accident arose out of and in the course' of the employment the court said: "If when the call to come to lunch was made, Mr. Clem, in responding to the call, had inad- vertently stepped into an opening in the uncompleted roof, or in company with others had in the attempt to reach the ladder got too near the edge of the roof and fallen and been hurt, would it be claimed that the injury did not arise out of arid in the course of his employment ? The getting of his luncheon under the condi- tions shown was just as much a part of his duty as the laying of a board or the spreading of the roofing material." 85 An employee, who was charged with the control and care of two horses, rode one to a watering trough at noon, contemplating rid- ing him to his home afterwards, where he was going for lunch. Before reaching the trough the horse threw him and he sus- tained serious injuries which resulted in his death. It was held that the retention and control included the care of the horses, at least to the extent of seeing that they were given water and thrat during this time the deceased was within his employment. The accident arose out the employment, as the deceased was on his way to perform his duty at the time of the injury, although he may have had in mind, at the time of the injury, the doing of 84. Bekkedal Lbr. Co. v. Indus. Comm. of Wisconsin, 168 Wis. 230, 169 N. W. 561, 17 N. C. C. A. 952. 85. Clem v. Chalmers Motor Co. et al., 178 Mich. 340, 144 N. W. 848, 4 N. C. C. A. 876, L. R. A. 1916A. 352. 598 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT, 276 something else not within the scope of his employment, after watering the horses. 86 Where an employee was injured, while using the elevator provided for use in reaching the department where she worked, her injuries arose out of and in the course of her employment, even though she was leaving the building during the noon hour to purchase a theater ticket." Where an employee sustained injuries while going to luncheon by falling on a stairway and spraining her ankle it was held that she was entitled to compensation, even though the employer had no control over the stairway, it being the only means of egress open to employees. 88 Where an employee, who quit work a minute before lunch time, was injured by overalls striking him in the eye when thrown at him in a spirit of play by a fellow employee, it was held that there was no interruption of the relation of employer and employee because of the fact that he was preparing to go to luncheon, and that the injury was therefore sustained in the course of the employment. In connection with this case it must be remembered that under the Ohio Act it is not necessary that the accident arise out of the employment. 88 Compensation was awarded for an injury sustained by an employee in getting down from a stool on which he had been eat- ing at the place of his employment. 80 The English rule is that injuries received by employees while seeking refreshments are considered to have arisen out of and in the course of employment. 81 86. Pidgeon v. Employer's Liab. Assur. Corp., 216 Mass. 51, 102 N. E. 932. 4 N. C. C. A. 616. 87. White v. Slattery, Mass. , 127 N. E. 597, (1920), 6 W. C. L. J. 323. 88. In re Sundine, 218 Mass. 1, 5 N. C. C. A. 616, L. R. A. 1916A, 318. 105 N. E. 433; Papineau v. Indus. Ace. Comm.. Cel. App. , (1920). 1R7 Pac. 108, 5 W. C. L. J. 492. 89. In re Mack, Ohio I. C., (1914). 7 N. C. C. A. 432. 90. Crouch v. Mass. Employee's Ins. Ass., Mass. W. C. C., (1913), 401, 7. N. C. C. A. 432. 91. Carinduff v. Gllmore, 48 Ir. Law Times 137, 7 B. W. C. C. 981; Low v. General Steam Fishing Co., 25 Times L. R. 787, 53 Sol. Jo. 763; 599 276 WORKMEN'S COMPENSATION LAW A chauffeur's assistant had gone all day without food. In the evening, when returning, he left the truck to get something to eat. and was struck by a car which caused his death. The court said : ' ' The natural inference from the proof, aided by the pre- sumption of section 21 of the Workmen's Compensation Law (Consol. Laws, c. 67), leads to the conclusion that from breakfast until 4 o'clock, when the accident occurred, the deceased had had no food, and that, being hungry, he had started across the street to get some cakes with which he might presently stay his hunger, Matter of Driscoll v. Gillen & Sons, 226 N. Y. 12, 123 N. E. 863, affirming 187 App. Div. 908, 173 N. Y. Supp. 825. The case is comparable to those where employees are killed or injured while seeking shelter from a storm, or while going to a nearby place to answer the calls of nature. Moore v. Lehigh Valley R. R. Co., 169 App. Div. 177, 154 N. Y. Supp. 620; Krawczyk v. Mac- Namara, App. Div., 173 N. Y. Supp. 912 . It is wholly unlike those where accidents occur during the noon hour, when employees are on their way to or from the plant to get their noonday meals. In that class of cases injuries are received during a definite period set apart as belonging exclusively to employees, during which they may go where they choose and do what they please, subject to no orders from their employers and freed from all duty or responsi- bility in reference to their employment. In this instance the em- ploye was at all times in the immediate vicinity of his employer's truck, which had stopped but momentarily, and his duty to care for it, to return to it, and help bring it home, had not ceased. It was not as if the* truck had been placed in a garage, while the deceased upon his own time, had gone to a restaurant to get a meal. Nor was it as if the deceased had abandoned the truck, and had gone to a saloon or drug store, not to satisfy a need of eating, because of an omitted meal, but to regale himself with refreshing Martin v. Lovibond, 7 B. W. C. C. 243; Keenan v. Flemington Coal Co., 40 Scot. L. R. 144, 10 Scot, L. T. 409; Earnshaw v. Lancashire & Y. R. Co., 5 W. C. C. 28; Morris v. Lambeth Borough Council, 22 Times, L. R. 22; McLaughlin v. Anderson, 48 Scot. L. R. 349, 4 B. W. C. C. 376; Blovelt v. Sawyer, 20 Times L. R. 105; McKrill v. Howard, 2 B. W. C. C. 460. A a digest of the decision in each of the above cases can be found in L. R. A. 1916A, (note) 320. See also 7 N. C. C. A. (note) 431-433. 600 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 276 drinks ,-md otherwise indulge himself, it was necessary for the continuance of his work that lie should have eaten. The deceased was hungry, because his 'employment that day had left him with- out food many hours, and it was precisely as if the deceased had descended from the truck on a hot day to get a glass of water to satisfy his thirst. It seems to me that the deceased did not step out of his employment when he went toward the bakery to get some cakes to carry to the truck, in order to eat the same in the journey home, and that his death arose in the course of his employment." An employee of a city, during the noon hour of a day lie had heen hauling coal from a pile near a railroad, sat on the railroad track to eat his luncheon, and while leaning against a car, was injured when the car kicked or jostled by a locomotive The court said: "The board was justified in finding, if not constrained to find, that the accident did not arise out of his employment. Hag- gard was not in a place in which it was necessary for him to b.> in the course of his work, or in going to or coming therefrom. The act in which lie was engageJ when injured had no relation to his employment; indeed, his going upon the railroad track seems to have been in violation of St. 1906, c. 463, part 2, sec. 232, although the decision of this case is not based on that statute. Pumiciello's Case. 21! i .Mass. 488, 107 N. E. 349; Ross v. .John Hancock ,Mut. Life Ins. Co., 222 Mass. 560, 111 N. K. 3!M) ; Uorin's Case. . M.iss. . 124 N. K. 891, He chose 'to go to a dangerous place where In had no business to go, incurring a danger of his own choosini: and one altogether outside any reasonable exercise of his employ- ment."" . Where employees in the basement of a brcw.-ry habitually went to the ground floor for fresh air and refreshment during the noon hour, and one was killed by falling into an elevator shaft while u'cttini.' fresh air. the court said: "If the deceased had been killed while eating lunch in this room, his death would have occurred in the course of his employment. .Matter of Mdnery v. B. & S. K. Corp., 22:. N. Y. 130. mi \. E. 806. If. during the lunch hour. 92. Sztorr v. James H. Stannburry. Inc., 189 N. Y. App. Div. 388. 179 N Y. S. 586. f, \V C. I, J. 93. Haggard's Case. Mass. , (1920). 126 N. E. 565. 5 W. C. L. J. 397. 601 276 WORKMEN'S COMPENSATION LAW he fell down the elevator shaft while walking about on the ground floor to get the air, to go to the toilet, to warm up, to drink beer, or to rest, as cellar men were expected to do, his case could not logically be distinguished 'from the case assumed. It must be pre- sumed that he was present on the ground floor for some one or more of these legitmate purposes of employment, that while so present he accidentally fell down the elevator shaft, and that while in the course of his employment he was killed." 94 A carpenter subject to dizzy spells, was not injured in the course of his employment, where he laid his hand upon a hot stove, while cooking his lunch, as a consequence of one of his dizzy spells. 95 Where a street car company employee rode home to lunch on defendant's car and alighted therefrom it was an incident of his employment. He was not out as a pleasure seeker or a church- goer. He was a motorman going home to dinner and his injury resulting from being struck by a passing car upon alighting was held to be an industrial accident to be born by the industry. 96 Injuries sustained by employees during lunch hour when they are at liberty to do as they please are not compensable under the Federal Act. 97 But. when performing acts during the noon hour in the further- ance of duties of. the employment injuries sustained are compen- sable. 98 Where board is furnished as part of the employee's pay, she has not departed from her employment when going to lunch. 99 Where an employee went to sleep on the ground near his wagon after eating his lunch at a place where he had a right to be and a mule fell upon his head, it was held that the injury was sustained 94. Donlon v. Kips Bay Brewing & Malting Co., 189 N. Y. App. Div. 415, 179 N. Y. S. 93, 5 W. C. L. J. 429. 95. Neuberger v. Third Ave. Ry. Co., 183 N. Y. S. 348, 6 W. C. L. J. 485. 96. Manchester St. Ry. v. Barrett, 265 Fed. 557, 6 W. C. L. J. 421, (1920)- 97. In re Chas. F. Lancaster, 2nd A. R. U. S. C. C. 247; In re Oscar Bern, 2nd A. R. U. S. C. C. 248. 98. In re Wm. E. Schneider, 2nd A. R. U. S. C. C. 250; In re Cliftou L. Hedgpeth, 2nd A. R. U. S. C. C. 258. 99. In re Margaret Leffel, 2nd A. R. U. S. C. C. 255. 602 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 277 while in the performance of duty and compensation was awarded under the Federal Act. 1 Where a servant was killed during the noon hour, when ho attempted to stop his team from running away, the accident occur- ring at a place where he had a right to be in the performance of his duty, the death was due to on accident arising out of and in the course of the employment. 2 277. Going to Receive Pay. Where an employee was in- jured while riding upon a logging train while on his way to obtain his pay, the commission found that the plaintiff was performing a service growing out of and incidental to his employment. In affirm- ing the judgment the court said: "He was entitled under his con- tract to receive compensation for his services. His employer directed him to go to a place some distance from his work to get his pay and offered him the means of transportation for going there. He went in obedience to the duty placed upon him by his employer and acqui- esced in by him, performing the last act under the contract, whereby each could receive the full benefit thereof. Had the employer paid him at the camp, a different question would be presented." 8 A railroad employee on his way to receive his pay after complet- ing his day's work and turning in his slip, walked 1000 feet alone and over the adjoining tracks to reach a point where he could catch a passing freight train to ride to a point where he could re- ceive his pay. While so doing he was struck by a train and killed. There were many other and safer ways of reaching the street. The commission found thaj deceased had no authority to be at the place \vhore the accident happened, and was not at such place on any business connected with his employment, but that he was there for purposes of his own. The accident did not arise out of nor in the course of the employment. The appellate court affirmed the find- ings of the commission. 4 1. In re C. B. Payne. 3rd A. R. U. S. C. C. 171. 2. Brown v. Bristol Last Block Co., Vt. , (1920), 108 All. 922, 5 W. C. L. J. 628. 3. Hackley-Phelps-Bonnell Co. v. Indus. Comm., 165 Wis. 586, 162 N. W. 921, 15 N. C. C. A. 278. 4. Ames v. N. Y. Cent. R. Co., 178 App. Dlv. 324, 165 N. Y. Supp. 84, 15 N. C. C. A. 279; In re Oscar S. Reed, 2nd A. R. U. 8. C. C. 246. 603 277 WORKMEN'S COMPENSATION LAW A railway employee had finished his run and then had two hours off. He started to his dentist with the intention of stopping off on the way and receiving his pay. While en route the train of his employer on which he was riding collided with another, injuring plaintiff. The court held that the accident did not occur while the plaintiff was doing the duty he was employed to perform, nor was it a natural incident of his work, and therefore the plaintiff was entitled to his action for damages at common law. 5 A collier returned to consult his foreman about a pay check with which the miner was dissatisfied. He did not intend to resume work unless the dispute was satisfactorily settled. Not gaining any satisfaction the collier proceeded to leave the premises and was knocked down by a coal wagon and was injured. -It was held that the injury did not arise out of and in the course of the em- ployment. 6 Where a workman was employed in a blacksmith shop in which no power driven machinery was operated, and although his place of employment might not have been within the act, yet since it was operated in connection with the remainder of the employer's plant, and the employee had to go through a room where power driven machinery was operated to get his pay, he was entitled to the pro- tection of the act when he suffered an injury through the horseplay of other employees while in the room where the power machinery was operated. 7 A farm laborer was compelled to go about two miles to receive his pay and instruction for the next day's work. While en route, riding with a fellow 7 workman, in the latter^s cart he was thrown out and injured. It was held that the accident did not arise out of the employment. 8 Where two employees were running a race to see who would first reach the paymaster's office and one slipped and fell on the polish- 5. Pierson v. Interborough Rapid Transit Co., 184 N. Y. App. Div. 678, 172 N. Y. Supp. 492, 3 W. C. L. J. 186. 6. Phillips v. Williams, (1911), 4 B. W. C. C. 143. 7. Pekin Cooperage Co. v. Industrial Bd., 277 111. 53, 115 N. E. 128. 8. Parker v. Pont, (1911), 5 B. W. C. C. 45; Lasturka v. Grand Trunk & Pac. Ry. Co., (1913), Alberta Supreme Court, 7 B. W. C. C. 1031. 604 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 278 ed floor, it was held that the accident did not arise out of the em- ployment. 9 Where an employee was injured while standing in line to get his pay check it was held that the injury arose out of the employment. 1 " Where an employee was on his way, on his employer's premises, to obtain his pay and stepped on a casting which rolled and caused him to fall whereby his shoulder was dislocated, it was held that he had sustained an injury in the course of his employment. 11 The English rule is that where a workman remains on the prem- ises or returns thereto to obtain his pay after work ceases, he Is still acting in the course of his employment. 12 278. Going to Answer a Call of Nature. A warehouseman was employed in a warehouse in which there were no toilet ac- commodations. While engaged in the course of his employment, de- ceased was required to answer a call of nature. He sought as a matter of necessity, shelter under a freight car which was moved, and he was killed. "We have no doubt that the trial court was fully justified, under the showing, in finding that the accident arose out of and within the course of the employment. It occurred luring working hours. There were no toilet accommodations with- in two blocks. Decedent was of necessity compelled to attend to his call. Defendant was negligent in not providing accommodations in the warehouse. The necessity of decedent's immediately re- tiring to some available place, coupled with the absence of ac- commodations in the warehouse, gave rise to the danger." 18 A workman was on his way to use a toilet, on the premises of and provided by the employer for the use of the employees when 9. In re Atwell, Ohio Indus. Comm., (1915), 12 N. C. C. A. 662. 10. Garls v. Pekin Cooperage Co., 111. Ind. Bd.. (1914), 12 N. C. C. A. 552. 11. In re Phillips, Ohio St. Ind. Bd., (1913), 7 N. C. C. A. 429. 12. Riley v. W. Holland ft Sons, (1911), 1 K. B. 1029. 4 B. W. C. C. 155; Molloy v. South Wales Anthracite Colliery Co., (1910). 4 B. W. C. C. 65; Nelson v. Belfast Corporation, (1908), 42 Irish L. T. 223, 1 B. W. C. C. 158; Riley v. W. Holland ft Sons. (1911). 104 L. T. 371. 4 B. W. C. C. 155; Lowry v. Sheffield Coal Co., (1907), 24 T. L. R. 142, 1 B. W. C. C. 1. 13. State ex rel. G. N. Express Co. v. District Court of Ramsey Co.. 142 Minn. 410, 172 N. W. 310. (1919), 18 N. C. C. A. 1041. 605 278 WORKMEN'S COMPENSATION LAW a galvanizing tank exploded throwing molten metal upon him and severely injuring him. In a suit at law there was a judgment for the defendant. Affirming the judgment the court held that the accident arose out of and in the course of the plaintiff's employ- ment, and that his remedy was under the compensation act, as he was injured on the premises and at the plant of his employer. 14 Compensation was allowed for the death of an employee who was drowned by falling into a river on his way to the toilet, during the suspension of work for luncheon. The toilet had been provided for the use of the employees by their employer. 15 . Where the employer failed to provide a toilet and the employees used a place in another building belonging to the employer across the street, with his knowledge and assent, it was held that an em- ployee, who was struck by a vehicle and killed while crossing the street to reach the toilet, suffered an accident arising out 'of and in the course of his employment. 16 Where a boat's employee fell through a hatchway while going to relieve himself, the county court said that deceased had not gone so unnecessarily far that he had traveled outside of the scope of his employment, and held that the accident arose out of and in the course of his employment. 17 The defendant did not have separate conveniences for women as required by law. Arrangements were made for use of those conveniences in the building of an adjoining employer. To reach these conveniences claimant had to cross a yard, and in doing so tripped upon a block of wood and fell, sustaining injuries^ It was held that the accident arose out of and in the course of -the employment. 18 14. Welden v. Skinner & Eddy Corporation, 103 Wash. 243, 174 Pac. 452, 2 W. C. L. J. 860; Neice v. Farmers' Co-operative Creamery & Supply Co., 133 N. W. 878, 90 Neb. 470. 15. Milwaukee Western Fuel Co. v. Indus. Com. of Wis., 159 Wis. 635, 150 N. W. 998, 12 N. C. C. A. 76. 16. Zabriskie v. Erie R. R. Co., 86 N. J. L. 266, 92 Atl. 385, 4 N. C. C. A. 778, L. R. A. 1916A, 315. 17. Armstrong v. Gregson & Co., (1916), W. C. & Ins. Rep. 226, 15 N. C. C. A. 265. 18. Fearnley v. Bates and North Cliffe, Ltd., (1917), W. C. & Ins. Rep. 207, 86 L. J. K. B. 1000, 15 N. C. C. A. 266; Hanley v. Boston Elev. Ry. 606 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 278 A hostler was engaged in hauling equipment from the show ground to the railroad, and left his team while he went to the toilet in his sleeping-car. When returning to his team, and while he was crossing the tracks which lay between his car and his team, he was struck and injured by a switch engine. The court affirmed a finding that the accident arose out of and in the course of the employment. 19 An employee was struck by something while she was in a toilet room, whereupon she looked through a crack to see where the article came from, when a girl in the adjoining room thrust a scissors through the crack and into her eyes, which resulted in an impairment of her vision. The commission found that the in- jury was due to an accident which arose out of and in the course of the employment. The appellate court reversed the finding of the commission holding that the accident was due to a sportive act of a co-worker, who in no way represented the master, and which act in no way grew out of or was connected with the em- ployment. 20 Where a street workman stepped on a rusty nail while going to a nearby toilet, and lockjaw resulted, it was held that the accident arose out of and in the course of the employment. 21 An employee resorted to a place to relieve his bowels, and when returning was struck by a train while crossing the railroad tracks. The employees were furnished a place for this purpose and the place to which claimant resorted was strictly forbidden to be used for the purpose. It was held that, since the applicant was return- ing from a forbidden act, and over a course essentially dangerous, the accident did not arise out of the employment." Co., (Mass.), W. C. C., (1915), 12 N. C. C. A. 565; Houston ft T. C. R. Co. v. Turner, 91 S. W. 562, 99 Tex. 547. 19. Hagenback v. Leppert. 64 Ind. App. , 117 N. E. 631, 1 W. C. L. J. 64; Madden v. Whitham, 36 N. J. L. J. 113, 12 N. C. C. A. 656. 20. De Fillippis v. Falkenberg, 170 App. Div. 153, 165 N. Y. 8. 761, 12 N. C. C. A. 557. 21. Putnam v. Murray, 6 N. Y. St. Dep. Rep. 355, 12 N. C. C. A. 556; Cino v. Morton ft Gorman Contracting Co.. 5 N. Y. St. Dep. Rep. 387, 12 N. C. C. A. 79. 22. Senior v. Brodsworth Main Colliery Co., Ltd.. 1917 W. C. ft Ins. Rep. 284, 16 N. C. C. A. 918. 607 279 WORKMEN'S COMPENSATION LAW According to the English decisions, if an employee is injured while availing himself, or is in the act of going to avail himself of toilet facilities, the accident and injuries arise out of and in the course of the employment. If the employer furnishes adequate facilities, accidents to servants while seeking relief elsewhere at places of their own choice, are not covered by the compensation acts. 23 Where a servant was found dead in the vault of a toilet, where he had a right to go, and the circumstances tended to show that he was killed by falling therein, such evidence in the absence of evi- dence to the contrary warranted a finding that death was due to an accident arising out of and in the course of the employment. 24 279. Injuries Sustained After Work Hours, by Employees Furnished Lodging on the Premises and to Employees Visiting the Premises on Sundays for Purposes not Connected With the Employment. Where a lumber company's employee was required by his contract of employment to sleep on the premises and in a bunk furnished by the master, it was within the course of his employment for the servant to remain on the premises and use the bunk furnished for him, and when he suffered an injury by a straw from the upper bunk falling and lodging in his throat, the injury was a compensable one, for at the time of the injury he was in the employ of the company, under its protection and using the things which it furnished to him for his use during the employment and as incident to such employment. "The general rule under the authorities is that when the contract of employment contemplates that the employees shall sleep upon the premises of the employer, the employee, under such circumstances, is considered to be performing services growing out of and incidental to such em- ployment during the time he is on the premises of the employer. 23. Rose v. Morrison, 4 B. W. C. C. 277, L. R. A. 1916A, 318; Cook v. Manver's Main Collieries, 7 B. W. C. C. 696; Cogdon v. Sunderland Gas Co., 1 B. W. C. C. 156, L. R. A. 1916A, 318; Elliot v. Rex, (1904), 6 W. C. C. 27; Thompson v. Flemington Coal Co., (1911), 48 Sc. L. Rep. 740, 4 B. W. C. C. 406. 24. Vulcan Detinning Co. v. Indus. Comni., 111. , (1920), 128 N. E. 917, 7 W. C. L. J. 191. 608 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 279 Rucker v. Read, W X. J. L. J. 48; Chitty v. Nelson, 2 B. \V. C. C. 496; Aldridge v. Merry 6 B. W. C. C. 450; Griffith v. Cole Bros, et al., (Iowa), 165 N. \V. f>77 : Meyers v. Michigan Cent. R. Co., (Mich.), 165 N. W. 703; Cokolon v. Ship Kentra, 5 B. W. C. C. 658; International & G. N. R. Co. v. Ryan, 82 Tex. 565, 18 S. W. 219." The injury in this case arose out of and in the course of the employment. 25 An employee was injured when a hut on the premises of his employer hlew down while lie was in bed. The employer obtained permission from the government to erect houses on the premises to accommodate the workmen, and the advertisement for workmen stated that the hut and sleeping accommodation were to be rent free at 2 cents a day. The workmen were required to pay half the expense of keeping an attendant to care for the huts, but this was not to be considered as rent. On the evening of the accident applicant had been working overtime and went to the hut and to bed at 9 p. m. About 10 p. m. a storm blew the hut down upon the applicant, mortally injuring him. In reversing an award the court said: "Take the case of a domestic servant where there is a continuity in the course of employment. During the time when the domestic servant is having his meals on the employer's premises or sleeping on his employer's premises 'the course of his employ- ment' continues, and it is not interrupted. But supposing the servant goes out for a few hours for his own purposes, 'the course of the employment' is thereby interrupted. The contract of ser- vice remains; he is still in his employer's service, but from the time he goes out for his own purposes until the time he returns to his work 'the course of the employment' is interrupted, and an accident to him would not be an accident 'in the course of the employment.' Those are the general principles which must be taken as settled. And, applying those to the present case, the workman is, in my opinion, in the same position for this purpose as if he was merely living in a house provided by his employer, like a laborer living in a cottage provided by his employer as 25. Holt Lbr. Co. v. Indus. Comm. of Wis.. 168 Wis. 381. 170 N. W. 366, 3 W. C. L. J. 549, 18 N. C. C. A. 1027: In Re Thomas Arthur, 2nd A. R. U. S. C. C. 255; In Re John Medanich, 2nd A. R. U. S. C. C. 256. 609 W. C. 39 279 WORKMEN'S COMPENSATION LAW part of the remuneration provided for his services. He was not living in the hut upon any term of contract for his employer's benefit that he should be there. The workman was given the choice, and was as free as possible to come or go. ' ' 2G An apartment house janitress received as compensation for her services five dollars monthly, the free use of her apartment, and gas for the same. One morning when about to sit down to her breakfast some plaster from the kitchen ceiling fell on the claimant, injuring her. In denying that the accident arose out of and in the course of the employment, the court said: "The case is no different than it would be if the claimant, although janitress of the building in question, had occupied an apartment in another building and the accident had there occurred. In no proper sense can it be said that she was janitress of her own apartment, merely because it happened to be a part of the building of which she was the janitress. In her own apartment she presided over her household affairs and was serving, not her employer, but herself and her family. If this award can be sustained, so also it should be sustained if the plaster had fallen on her at night while she was sleeping, or while doing any ordinary housework for the re- quirements or convenience of her family. At the time of the acci- dent she was doing nothing for her employers, nor anything in- cidental thereto. Her duty to them did not require her presence in her apartment. What she was doing was personal to herself. It was entirely disassociated with the work of her employer." 27 A section foreman fell from a trestle on Sunday, a time when he was not regularly required to be about the railroad. His duties were not connected with the trestle, and it was not shown that he was there by the direction of his employer. It was held that the foreman did not lose his life in the course of his employ- ment, and his dependents were not therefore entitled to compen- sation.- 8 26. Philbin v. Hayes, 119 L. T. R. 133, 17 N. C. C. A. 947. 27. Lauterbach v. Jarett et al., 189 App. Dlv. 303, 178 N. Y. Supp. 480, 5 W. C. L. J. 100. See also Daly v. Bates & Roberts, 224 N. Y. 120 N. E. 118. 28. In Re Watkins, Ohio I. C., (1914), 7 N. C. C. A. 434. 610 ACCIDENT ARISING OUT OF COURSE OF EMPLOYMENT. 279 A housekeeper employed ill defendant's hotel, resided at the hotel, her duties requiring her to be available at all hours, although her active duties did not begin until eight o'clock. At 7 o'clock slic was injured as a result of stumbling over a pile of linen while going for hot water i'or toilet purposes. It was held that the acci- dent arose out of and in the course of her employment.- 1 ' A hotel employee went shopping after her day's work. Upon re- turning she fell on the way to her room and broke her arm. In addition to her wages she received board and lodging furnished l>y her employers. After working hours she was free to do and go as she pleased. It was held that the injury did not arise out of and in the course of her employment. 30 A workman, whose employment required him to occupy sleeping and living quarters furnished by the government, was injured after hours, but at quarters. It was held that he was injured in the course of his employment. 11 An employee, furnished quarters on a boat, left the boat after working hours to visit a neighboring town, and was drowned when returning. It was held that his death did not occur in the course of his employment. 82 An employee sustained an injury causing his death, when ho visited a building, which his employer had contracted to con- struct. His employment status was not in effect at the time, the employee having visited the building for purposes of his own, and not being engaged in the work of the employer at the time, it was held that the injury did not arise out of and in the course of the employment. 33 29. Leonard v. Fremont Hotel, 2 Cal. I. A. C. 924, (1915), 12 N. C. C. A. 667; In Re John H. T. Flattery, 3rd A. R. U. S. C. C. 168. 30. Doherty v. Employer's Liab. Assur. Corp., Ltd., 1 Mass. W. C. C. 460, 12 N. C. C. A. 668; Mahoney v. Sterling Borax Co., 2 Cal. I. A. C. D. 700, (1915), 12 N. C. C. A. 668. 31. In re Claim of C. E. Holt, Op.. Sol. Dep. C. & L. (1916), 302; In re Claim of Jenkins, Op. Sol. Dep. C. & L. (1915). 334. 32. In re Claim of Jackson, Op. Sol. Dep. C. & L. (1915). 320; In re Claim of Gilson, Op. Sol. Dep. C. & L. (1915), 326; In re Claim of Wm. P. Brown. Op. Sol. Dep. C. ft L. (1913), 328. 33. Lynn T. Employers' Liab. Assur. Corp.. Ltd., 2 Mass. W. C. C. 507, (1914), 13 N. C. C. A. 491. 611 280 WORKMEN'S COMPENSATION LAW A garage employee was injured, when he visited the garage, where he was employed, on a holiday, to obtain certain articles re- quired by a contestant in automobile races. The employee had been given a car for his own pleasure on the holiday. It was held that the accident did not arise out of the employment. 34 280. Away From Place of Employment on Own Business or Business Other Than Employer 's Where an employee attempted to work through two shifts in order that he might relieve the congested condition of labor, and left his place of work and pro- ceeded to an adjoining building on the premises to sleep, and his immediate superior, in order to a\yaken him, threw a brick on top of the house where he was asleep, and the brick went through and killed the employee, the act of the superior added a risk of danger fairly within the contemplation of the employer, so that the servant's death resulted from an accident arising out of and in the course of the employment. 35 An engineer, during his vacation, received full pay and was subject to his employer's call. He went to inspect a pumping station, at the request of the superintendent of his employer, in order that its efficiency might be increased. He drove his own automobile, and while en route sustained injuries in an accident. In deciding that the accident arose ' ' out of and in the course of the employment, ' ' the court said : ; ' Did he go upon this mission vol- untarily or because of the request of his superintendent? The referee finds that he went not only at the request of the superin- tendent, but in pursuance of the policy which the company follow- ed with all its employees. He was therefore practically under orders and in the performance of his duty when he was injured." 36 An employee left the building in which he performed his duties and went to another building, where he fell down an elevator shaft. The board found that at the time of the accident claimant had no duties to perform at the building where the accident oc- 34. Held v. Cuyler Lee, 2 Cal. I. A. C. 719, 12 N. C. C. A. 905. 35. Colucci v. Edison Portland Cement Co., 93 N. J. L. 332, (1919), 108 Atl. 313. 36. Messer v. Mfgr's Light & Heat Co., et al., 263 Penn. 5, 106 Atl. 85, 3 W. C. L. J. 791. 612 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 2*0 curred, but that he was there on his own initiative, and that there- fore the accident did not arise out of and in the course of the em- ployment. 37 Where a night watchman left his duties to visit the owner of a boat and when he attempted to return to his duties he jumped into the water, and died later from the effects of the exposure, it was held that the accident did not arise out of the employment. 3 " Whore a railroad employee responded to a fire call and assisted in fighting a forest fire, sustaining injuries while so doing, it was held that, despite the fact that there was a statute making it a mis- demeanor to refuse when called upon to fight fires, the accident did not arise out of and in the course of the employment. 39 An employee was killed by falling down an elevator shaft. The duties of deceased required him to be on the ground floor and under no circumstances was he required to be elsewhere during his employment. In the absence of any direct evidence showing that the accident occurred while he was away from his regular place of employment in the performance of some duty connected with his employment, compensation must be denied. 40 Where a ship's employee went ashore to provide provisions for himself, and was drowned in an attempt to return to the boat, the court, holding that the accident which resulted in the death of decedent, did not arise out of the employment, said: "I cannot, * * * assent * * * . to the * * proposition which was made, to the effect that if a man goes on shore lawfully, for a purpose which must have been contemplated as one of the purposes for \\hieh lie would go on shore, that makes him on shore upon the ship's business or pursuant to any duty owed to his employer." 41 37. Borck v. Simon J. Murphy Co., 205 Mich. 472, 171 N. W. 470, 18 N. C. C. A. 1042; In Re Orville J. Pettijohn, 2nd A. R. U. S. C. C. 244; In Re W. J. Tyler. 2nd A. R. U. S. C. C. 246. 38. King v. State Ins. Fund, 184 N. Y. App. Div. 453, 171 N. Y. Supp. 1032. 2 W. C. L. J. 921; Weis Paper Mills Co. v. Indus. Comm.. 111. . (1920). 127 X. K. 732. W. C. L. J. 307. 39. Kennelly v. Stearns Salt and Lbr. Co., 190 Mich. 628, 157 N. W. 378, 15 N. C. C. A. 218. 40. Casualty Co. of America v. Indus. Ace. Comm., 176 Cal. 530, 169 Pac. 76. 1 W. C. L. J. 295. 15 N. C. C. A. 233. 41. Parker v. Black Rock (owners of), (1915), W. C. A Ins. Rep. 369, 15 N. C. C. A. 259. 613 280 WORKMEN'S COMPENSATION LAW A teamster, who was engaged in hauling coal from a mine to customers, was killed while hauling coal to his own home on his own time. It was held that the accident resulting in decedent's death did not arise out of and in the course of the employment. 42 Deceased was permitted for purposes of his own to leave his boat, on which he was employed as chief engineer. "When returning and while going along the quay, he missed his bridge leading to the ship, and fell off the pier and was drowned. In reversing an award of compensation the House of Lords said : " If the employee had reached the ship or ladders, by which the ship was to be boarded he might properly be taken to have been directed to use them as being part of the vessel on which he was living as an in- cident to his employment. But was the quay, by which he was ac- tually approaching when the accident happened, a place where he was directed to be, or a place for which the employers had any responsibility ^it all? It seems to me that this question ought on broad principles to be answered in the negative. Surely a street in Eamsgate would not have been such a place in the absence of special circumstances. That is clear from principles which have been firmly laid down. In order to make it such a placed it would be necessary to prove as a special fact that the engineer was di- rected to use it for some object in which he was employed. Here there was no direction. He was allowed leave for his own pur- poses. Was the quay, then, different in this respect from a street ? It is said that it was, inasmuch as it was the natural way of pro- ceeding towards the place where the ship was berthed. But a street might also have been part of such natural way. ' ' 43 Deceased was killed by an electric wire while carrying laundry from his home to a restaurant run by his wife for decedent 's em- ployer. It was contended that deceased was performing work for his employer and that his contract of employment contemplated that he would assist his wife about the restaurant in addition to 42. Sugar Valley Coal Co. v. Drake, 64 Ind. App. , 117 N. E. 937, 1 W. C. L. J. 594. 43. Charles R. Davidson & Co. v. M'Robb, (1918), A. C. 304, 16 N. C. C. A. 912; Spencer v. "Liberty" (owners), (1917), W. C. & Ins. Rep. 293, 16 N. C. C. A. 913. 614 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 280 N caring for the building of his employer on the latter 's premi Upon conflicting testimony the court held that the accident oc- curred when deceased was performing an act not incidental to hi.- employment and away from his regular place of employment, and therefore the accident did not arise out of and in the course of the employment. 44 Decedent was killed by an automobile while going to a point some distance from his place of employment to obtain tobacco. The court declared itself to be of the opinion that it could not be said that the- employment had in any way subjected the decedent to the hazard to which lie exposed himself in going for the tobac- co." Where an employee whose duties necessitated his being in the basement of the building and no other place about the building, left the basement and was injured when going to floors above in an elevator, the court held that the deceased, at the time of his in- jury, being away from his work and performing a voluntary act for his own pleasure or satisfaction, was engaged in an act out- side the scope of his employment, that the injuries causing his death did not arise out of and in the course of his employment. 46 "Where a girl was injured when her skirt entangled in a pulley while she was going from her place of work to another place in the same room to seek information pertaining to her work, from an older girl, it was held, that this being the custom in this place therefore the accident arose out of and in the course of the em- ployment. 4T Where an employee was injured in the course of his employ- ment, necessitating bandages, and was severely burned at home as a result of the bandages catching on fire, it was held that the 44. Murphy v. Ludlum Steel Co.. 182 App. Div. 139, 169 N. Y. Supp. 781, 16 N. C. C. A. 901. 1 W. C. L. J. 1122. 45. In re Betta, 64 Ind. App. , 118 N. E. 551, 16 N. C. C. A. 904, 1 W. C. L. J. 569. 46. Spooner v. Detroit Saturday Night Co.. 187 Mich. 125, 153 N. W. 657, 9 N. C. C. A. 647. 47. Vreeland v. Cogswell & Boulter Co., 37 N. J. L. J. 57; Broadway- Coal Mining Co. v. Robinson, 150 S. W. 1000, 150 Ky. 707. 280 WORKMEN'S COMPENSATION LAW burn was not caused by an accident arising out of and in the course of the employment. 48 A railroad conductor who was injured on a run made for the sole pleasure of the employees, but with the employer's permis- sion, was not injured in the course of his employment. 49 An employee reported for work, and before starting to work he left the premises to mail a letter at the direction of a fellow work- man, and while away he met with an accident which necessitated the amputation of his foot. The person who ordered him to mail the letter was not a foreman. It was held that he was not injured in the course of the employment. 50 A master's duty to furnish his servants a safe place for work extends to such parts of his premises only as he had prepared for their occupancy while doing his work, and to such other parts as he knows, or ought to know, they are accustomed to use while do- ing, it, and when a sevant goes to some other part for his own convenience, the general rule is that he is regarded as a licensee merely. 51 A waitress entitled to ride in her employer's bus while on per- sonal errands, was injured while riding therein on her way back to work, due to the negligence of the chauffeur. The court held 48. Re Claim of Rockwell, Op. Sol., Dep. C. & L. (1915), 242. 49. In re Claim of Fitzpatrick, Op. Sol., Dep. C. & L. (1915), 306. 50. In re Deavers, Ohio Ind. Comm. (1914), 7 N. C. C. A. 419. 51. Connell v. New York Central & H. R. R. Co., 144 App. Div. 664, 129 Supp. 666; Pioneer Mining '& Mfg. Co. v. Talley, 43 So. 800, 152 Ala. 162; Sutton v. Wabash R. Co., 152 111. App. 138; Lynch v. Texas & P. Ry. Co., 133 S. W. 522, Tex. Civ. App. ; O'Brien v. Western Steel Co., 13 S. W. 402, 100 Mo. 182; Mitchell-Tranter Co. v. Ehmett, 65 S. W. 805, 23 Ky. Law Rep. 1788, 55 L. R. A. 710; Kennedy v. Chase, 52 Pac. 33, 119 Cal. 637; Brown v. Shirley Hill Coal Co., 94 N. E. 574, 4? Ind. App. 354; Ellsworth v. Metheny, 104 Fed. 119, 51 L. R. A. 389; Southern Railway Co. v. Bentley, 56 So. 249, 1 Ala. App. 359; Russell v. Oregon Short Line R. Co., 155 Fed. 22; Pittsburg Vitrified Pav. & Build. Brick Co. v. Fisher, 100 Pac. 507, 79 Kans. 576; Northern Coal & Coke Co. v. Allera, 104 Pac. 197, 46 Colo. 224; Gooch v. Citizens Elec- tric St. Ry. Co., 88 N. E. 591, 202 Mass. 254, 23 L. R. A. (N. S.) 960n.; Clapp's Parking Station v. Indus. Ace. Comm., -- Cal. , (1921), 197 Pacific 369. 616 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 281 that such injury did not arise in her employment, so as to make her and the ehauft'eur fellow servants, thereby requiring her to proceed under the Workmen's Compensation Act. 52 Where a salesmanager on vacation on a ranch was injured while returning from a post office, where he had gone to answer a military questionnaire, and while there also wrote and mailed a reply to a business letter from his employer, received at the ranch, it was held that his injury was not the result of an accident aris- ing out of his employment." Where an employee was injured while answering a call as a city fireman, it cannot be said that his injuries arose out of his employment, since the employer is not an insurer against all in- juries." Where a farm employee was given permission to go to a cob- bler to get a heavy pair of shoes before going to the woods as di- rected, and on the way stopped at a saloon, and then started for a post office and was killed by an automobile, it was held that his death was not due lo an accident arising out and in the course of his employment, as he was outside of the course of his employ- ment at the time of the accident. 5 ? An employee on vacation under full pay and required to fur- nish a substitute is not entitled to compensation under the Feder- al Act for injuries received while on vacation." 281. Accidents to Employees Under Contract But Before Beginning Work, Before Actual Hiring and After Discharge. An extra switchman reported for work and was informed that there would be no work for that day. He climbed on a moving freight train for his own convenience in going home, and was 52. Roth v. Adirondack Co., 383 N. Y. S. 717, 6 W. C. L. J. 557; In re Warren W. Loney, 3rd" A. R. U. S. C. C. 168. 53. Continental Casualty Co. v. Indus. Comm., Cal. App. , (1920), 190 Pac. 849. 6 W. C. L. J. 434; Hutno v. Lehigh Coal and Navigation Co.. Pa. , (1921). 113 Atl. 68. 54. White v. Eastern Mfg. Co., Me. . (1921), 112 Atl. 841. 55. Gisner v. Dunlop, 181 N. Y. S. 789, App. Div. , (1920). 6 W. C. L. J. 80. 56. In re Wm. E. Machamer, 2nd A. R. U. S. C. 233. 617 281 WORKMEN 'S COMPENSATION LAW struck by a viaduct and killed. The court held that the accident did not arise out of the employment, his employment having ceased, and his act had no connection with his employment by the railroad. The employment was from day to day, and in coming to the place in the morning he was seeking to establish the rela- tion of employer and employee, and even if we assume that the relation did exist, it was terminated as soon as he was informed that there was no work that day. 52 An employee was laid off because of ill health and told to wait until he was able to work, and he returned the next day and be- gan work. Later he was found dead at the place where his duties necessitated his presence. The court held that the employee was not absolutely discharged, and his going to work according to the directions found on a slip in his locker, as was customary, estab- lished the relation of employer and employee. Therefore the ac- cident arose out of the employment. 58 An engineer reported for duty in a state of intoxication, and the evidence tended to show that he had been laid off for the night by the foreman, and later he went on duty and was killed while spotting furnaces. The lower court held that the contract of employment had ceased and reversed an award of compensa- tion. The appellate court reversed the court of common pleas on the ground that the issue of the alleged discharge had been found against the employer. 59 A laborer, who seeking employment, visited defendant's office and was directed to go to defendant's logging camp, on a logging train, and was injured on the way. It was held that he was not an employee at the time of the accident. 60 A laborer applied for employment in the evening and was in- formed that there was no work, but was given, at his request, 57. Michigan Central R. Co. v. Industrial Comm., 290 111. 503, 125 N. E. 278, 5 W. C. L. J. 189. 58. Chicago Cleaning Co. v. Indus. Bd. of 111., 283 111. 177, 118 N. E. 989, 16 N. C. C. A. 928. 59. Dainty v. Jones & Laughlin Steel Co., 263 Pa. 109, 106 Atl. 194, (1919), 18 N. C. C. A. 1036; Harvey v. Gironda, 111. Ind. Bd., (1915), 13 N. C. C. A. 496. 60. Susznik v. Alger Logging Co., 76 Oregon 1S9, 147 Pac. 922. 618 ACCIDENT ARISING OUT OF COURSE OP EMPLOYMENT. 281 lodging and a meal slip entitling him to supper and breakfast, and was told to report in the morning to see if there was any chance for employment. He did not report according to instruc- tions but slept until noon. While going for dinner he was struck by a train and injured. In reversing an award the appellate court. held that he was not in the employment of defendant at the time of the injury, and therefore the accident could not have arisen out of the employment. 81 Where a seaman was drowned after being discharged for in- toxication, the court held that he was under the protection of the act for a sufficient length of time to enable him to leave the boat. But in the absence of any evidence to establish that was drowned while leaving, it could not base an award upon mere conjecture. If the drowning occurred after deceased had reached the pier he w;is no longer in the employment of the master, and not entitled to the protection of the act. 82 An extra gang trackman was employed by a railroad company to begin work a day or two afterwards. As part of his compen- sation he received transportation to the place of his employment and was to receive sleeping accommodations upon arrival, pend- ing the beginning of employment. After arriving at his destina- tion and while waiting to get into a bunk car, he was struck by a car of the company and killed. "It is clear that the deceased, when injured, was not in the employ of the railroad company. He had been hired to go to work at a time in the future. In the meantime he was provided with a place to stay in the bunk house and had been furnished transportation to that place from Deca- tur. lie had no duties to perform, he had performed none and was not expected to perform any until Saturday or Monday. What he had received in the way of transportation and expected to receive in having a place to stay until his employment began was a part of his compensation, but the fact that he had received 61. Brassard v. Delaware & H. Co.. 186 App. Dlv. 647. 175 N. Y. S. ?59. (1919). 18 N. C. C. A. 1037; In re Tucker. I. C. 1914. 13 N. C. C. A. 491. 62. In re Whalen, 186 N. Y. App. Div. 190. 173 N. Y. S. 856. (1919). 18 N. C. C. A. 1037. 619 281 WORKMEN'S COMPENSATION LAW this compensation was no evidence that he was in the employ of the railroad company, in view of the terms of the contract that he was not to go to work until some time in the future." 63 The claimant had been in the employ of the appellant for about 8 months. Upon appearing for work a little late one morning the superintendent told him he need not work. He excused him not for being late but because he felt that he had been drinking and was unfit for work. He started to leave the subway and tripped and fell, sustaining injuries. "The appeal proceeds upon the theory that he was not a regular employee, but was there asking for work, which was refused, and that he was not, therefore, in- jured within the course of his employment. This contention over- looks the fact that he had been employed almost continuously for 8 months and that there was not a separate employment from day to day. The only thing tending to show a daily employment is that he was paid by the day, but his wages were payable weekly. Concededly, he was expected to report for work that morning, and did report, and was told that he was not wanted. He was, therefore, a regular employee, and was there in the performance of his duty as such, and is entitled to the benefit of the act. The award should be affirmed." 64 A carpenter started to work on a church in the course of con- struction without being hired by the person in charge, but in the hope that he .would be employed. He was injured before any ratification of his conditional permission to work and before any actual hiring. It was held that he was not entitled to the protec- tion of the act. 65 An employee was injured while preparing his personal tools, which he intended to use in work which was to begin in the fu- ture. He was under a contract of employment at the time of the injury, but his term of employment was not to begin until a fu- 63. Bloomington, Decatur & Champaign R. Co. v. Indus. Bd., 276 111 239, 114 N. E. 517, 13 N. C. C. A. 490. 64. Kiernan v. Priestedt Underpinning Co., 171 N. Y. App. Div. 539. 157 N. Y. Supp. 900, 13 N. C. C. A. 497. 65. Steiman v. Sofard, 2 Cal. Ind. Ace. Com. 944 (1915). 620 ACCIDENT ARISING OUT OP COURSE OF EMPLOYMENT. 282 ture date, therefore the accident did not arise in the course of tin- employment. 06 Where an employee is injured while seeking employment, or after discharge, providing a reasonable time is allowed for him to leave the premises, and while under contract of employment but before commencement of work, the general rule is that the accident does not arise out of and in the course of the employ- ment. 67 282. The Employee's or Another's Wilful Misconduct. In General. Some acts provide that compensation shall not be paid when the disabling injury is due to the employee's serious and wilful misconduct. 68 The decisions on these provisions will throw light on the inter- pretation of the term "wilful misconduct" where that term is used alone, as is true of most of the acts. In fact the two terms have been considered by some of the courts to have the same mean- ing. " It has been held that the word "wilful" imports that the con- duct was deliberate and not merely a thoughtless act on the spur of the moment or an act showing a lack of judgment; 70 that it is the intentional doing of something either with the knowledge that 66. In re Luenil, Ohio Ind. Com.. (1915), 13 N. C. C. A. 491. 67. Dickerson v. Bornstein, 173 S. W. 773, 144, Ky. 19; Greenburg v. Atwood, 38 N. J. L. J. 54, 13 N. C. C. A. 495; Oanley v. Employers Liab. Assur. Corp., Ltd., 2 Mass. Workn. C. C. 159, (1913), 13 N. C. C. A. 1916A (note) 243; Farmer's Grain and Supply Co. of Minden v. N. C. C. A. 492; Hutcheson v. Frankfort General Ins. Co., Mass. \V. C. C., (1915), 13 N. C. C. A. 493; Moork v. Howard, 1 Cal. I. A. C. D. 475, (1914), 13 N. C. C. A. 493; Spencer v. Dowd. 1 Cal. I. A. C. 46, (1914), IS N. C. C. A. 494; Booth v. Burnett, 2 Cal. I. A. C. 162, (1915), 13 N. C. C. A. 495; In re Boyle, Ohio Ind. Comm., (1915), 13 N. C. C. A. 496; In re Gilbert. 14 Ohio L. Rep. 164, (1916). 13 N. C. C. A. 497; In re Burshe, >hio I. C. 1915. 13 N. C. C. A. 498; Merritt v. North Pac. S. 8. Co., 2 Cal. I. A. C. 273. 12 N. C. C. A. 82; Rogers v. Rogers. Ind. App. , 122 N. E. 778. 4 W. C. L. J. 58. 68. In re Murphy, 224 Mass. 592. 113 N. E. 283. 69. Diestelhorst v. Ind. Ace Comm.. 32 Cal. App. 771. 164 Pac. 44. 70. Johnson v. Marshall Sons & Co.. (1906), 94 L. T. 828, 8 W. C. C. 10. 5 Ann. Cas. 630; Belknap v. Mervy-Elwell Co..*l Cal. Ind. Ace. Com. 621 282 WORKMEN'S COMPENSATION LAW it is likely to result in serious injury, or with a wanton and reek- less disregard of its probable consequences : 71 that the deliberate, wilful, premeditated violation of a rule made for the protection of the employee himself against the consequences of an accident is wilful misconduct. 72 The seriousness contemplated by the statute must attach to the act in the doing of it, and not merely to the consequences thereof as they actually develop. So, where a brakeman stood on the platform of a car in such a position that he would inevitably be killed when the train entered a tunnel, the court held that "any neglect is a serious neglect within the meaning of the act, which, in the view of reasonable persons, * * * expose anybody, (includ- ing the person guilty of it) to the risks of serious injury. * * * The test is the apprehended, as distinguished from the actual consequences. ' ' 73 And where a workman was injured while walking along a tram- way in a mine, upon which he knew trains were approaching, where the injury was caused by the rope slipping, and there was no evidence thai; he could not have reached a manhole before the train reached him, it was held that he was not guilty of serious and wilful misconduct. 74 Mere disobedience of orders does not necessarily, as a matter of law, constitute serious and wilful misconduct, nor does the phrase include every violation of rules. 75 (Part 1) 82; Wallace v. Glenboig Union Fire Clay Co., (1907), S. C. (Scot) 967; Kent ^. Boyne City Chemical Co., 162 N. W. 268, A 1 W. C. L. J. 952. 71. Heckles' Case, 230 Mass. 272, 119 N. E. 653, 2 W. C. L. J. 278; Bersch v. Morris & Co., Kan. City, 189 Pac. 934, 6 W. C. L. J. 156. 72. Smith v. Munger Laundry Co., 1 Cal. Ind. Ace. Comm. (Part II) 168; United States Fidelity, etc. Co. v. Ind. Ace. Comm., 174 Cal. 616, 163 Pac. 1013. 73. Hill v. Granby Consol. Mines, (1906), 12 B. C. 118. 74. Rees v. Powell Duffryn Steam Coal Co., (1900), 64 7. P. (Eng.) 164, 4 W. C. C. 17; Glasgow & S. W. R. Co. v. Laidlaw, (1900), 2 So. Sess. Gas. 5th series 703, 37 Scot L. T. 503, 7 Scot Law Times 420. 75. Peru Basket Co. v. Kuntz, (1919), (Ind. App.), 122 N. E. 349; Great Western Power Co. v. Pillsbury, (1915), 170 Cal. 180, 149 Pac. 35, 9 N. C. C. A. 466; Freeman v. East Jordon & S. R. Co,, 191 Mich. 529, 622 ACCIDENT ARISING OUT OP COURSE OF EMPLOYMENT. 282 Where a rule has not been rigidly enforced the question of wil- ful misconduct is eliminated from the case. It has been stated by the California commission that: "It is perhaps impossible so to define 'wilful misconduct' as to make such definition applicable to all cases, but it may be stated in a general way to consist in the 'wilful violation' of a rule or order made for the employee's own safety, or for the safety of others, such rule being prescribed by a power having authority to make such rules, and enforce with diligence." 77 In a Massachusetts case the court said : ' ' Serious and wilful misconduct is much more thaii mere negligence or even than gross or culpable negligence. It involves conduct of a quasi criminal nature, the intentional doing of something either with knowledge that it is likely to result in serious injury or with a wanton and reckless disregard of its probable consequences." 78 It has been held that voluntary suicide is serious and wilful misconduct; 79 that wilfulness is the essen- tial element which must be established. 80 Under the English act of 1906, serious and wilful misconduct is not a bar to compensation where the injury results in death, or iu serious and permanent disablement. Although a collier, in dis- obedience to special rules of the plant, and against warnings of a fireman, went into dangerous workings of the mine and was guilty 158 N. W. 204; George v. Glasgow Coal Co., (1909), A. C. (Eng.) 123, 2 B. W. C. C. 125; Gray v. Indus. Ace. Comm., 34 Cal. App. 713, 168 Pac. 702. 76. Rayner v. Sligh Furniture Co., 180 Mich. 168, L. R. A. 1916A, 22, 146 N. W. 665, Ann. Cas. 1916A, 386, 4 N. C. C. A. 851. 77. Lutz v. Gladding, Me Bean & Co., 1 Cal. Ind. Ace. Com. (Part II) 8. 78. In re Burns, 218 Mass. 8, 105 N. E. 601, 5 N\ C. C. A. 635, Ann. Cas. 1916A, 787; Great Western Power Co. v. Pillsbury, 170 Cal. 180, 149 Pac. 35, 9 N. C. C. A. 466; Maryland Casualty Co. v. Ind. Ace. Comm. 39 Cal. App. 229, 178 Pac. 542; Nickerson's case, 218 Mass. 158. 105 N. E. 604, Ann. Cas. 1916A, 790, 5 N. C. C. A. 645; Praties v. Broxburn Oil Co.. (1906-07), Scot. S. C. 581; Haskell & B. Car. Co. v. Kay, (Ind. App.), 119 N. E. 811; Indianapolis Light and Heat Co. v. Fitzwater (Ind. App.), 121 N. E. 126. 79. In re Von Ette, 223 Mass. 56. Ill N. E. 696. 80. Kraljlvich v. Yellow Aster Mining & Milling Co., 1 Cal. Ind. Ace. Com. (Part II) 554. 623 283 WORKMEN'S COMPENSATION LAW of wilful misconduct, yet if he did so in an honest attempt to further that which he was instructed to effect, his death which resulted from such act arose out of the employment, and his conduct will not preclude a recovery. 81 The Nebraska Act defines willful negligence as (1) a deliberate act, or (2) such conduct as evidences reckless indifference to safety, or (3) intoxication at the time of the injury, such intoxi- cation being without the consent, knowledge, or acquiescence of the employer or the employer's agent. The court construed this to mean more than want of ordinary care. It implies a rash and careless spirit, not necessarily amounting to wantonness, but ap- proximating it in degree ; a willingness to take a chance. Run- ning along beside a rapidly moving train and suddenly falling against it by reason of slipping or becoming dizzy, does not show such wilful negligence as to deprive the deceased's dependents of compensation. 84 283. Acts Not Constituting Willful Misconduct. Where an employee undertook to cross a standing train without looking to see whether it was about to start, the court said : ' ' While it is quite clear that the claimant's injury was brought about by his own gross negligence we are of the opinion that it cannot be said, as a matter of law, that he was guilty of such intentional and willful misconduct as would defeat his recovery. 83 Where an employee was engaged to do whitewashing, but was told not to work around the machinery until the noon hour, when it was stopped; but he started to work there just shortly before it stopped and was injured, the court said: "His decision to do some whitewashing during this very interval seems more like a 81. Harding v .Brynddu Colliery Co., (1911), 2 K. B. 747, 80 L. J. K. B. N. S. 1052, 105 L. T. N. S. 55, 27 Times L. R. 500, 55 Sol. Jo. 599, 4 B. W. C. C. 269; Jackson v. Denton Colliery Co., (1914), W. C. & Ins. Rep. 91, 110 L. T. N. 559, 7 B. W. C. C. 92. 84. Farmers Grain and Supply Co. of Minden v. Blanchard, Neb. , (1920), 178 N. W. 257, 6 W- C. L. J. 362. 85. Gignac v. Studebaker Corp., 186 Mich. 576, 152 N. W. 1037, L. R. A. 1916A (note) 243; Farmer's Grain and Supply Co. of Minden v. Blanchard, Neb. , (1920). 178 N. W. 257, 6 W. C. L. J. 362. 624 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 283 sudden thought, than a willful act. * * * The fact that the injury was occasioned by the employee's disobedience to an order is not decisive against him. To have that effect, the disobedience must have been willful * * * deliberate, not merely a thoughtless act on the spur of the moment." 89 It has been held that willful negligence on the part of the work- man constitutes no defense to a compensation claim under some Compensation Acts; 87 that misconduct of itself is not sufficient to bar a claim, willfulness being the essential element, must be established; 88 that where a miner, after doing some "holing,'' by neglecting to put in the supports, left a mass of shale overhang- ing in a dangerous position, which was in violation of a statutory regulation, and later was killed by the shale falling upon him, the accident could not be attributed to serious misconduct ; 80 that an employee, who, impulsively and without reflection, attempts to clear sand off a moving belt, without stopping it, is not guilty of willful misconduct; 00 that serious and willful misconduct is much more than mere negligence; 91 that the mere doing of a thing in a careless manner, or in a wrong way, without intention to vio- late a necessary rule of safety, or to do injury, is not "willful misconduct." 92 86. In re Nickerson, 218 Mass. 158, 105 N. E. 604, 5 N. C. C. A. 645; Bersch v. Morris & Co., Kan. , (1920), 189 Pac. 93-4, 6 W. C. L. J. 156; In re Ivan H. Peters, 2nd A. R. U. S. C. C. 281. 87. West Jersey Trust Co. v. Philadelphia & R. Ry. Co., 88 N. J. Law, 102, 95 Atl. 753; Taylor v. Seabrook, 87 N. J. Law, 407, 94 Atl. 399, 11 N. C. C. A. 710; In re Wilbur M. Peyton, 2nd A. R. U. S. C. C. 280, 88. Kraljlvich v. Yellow Aster Mining & Milling Co., 1 I. A. C. Dec. 554. 89. Tennant v. Broxburn Oil Co., Ltd., (1907), S. C. 581, Ct. of Sess; In re Lee A. Edward, 2nd A. R. U. S. C. C. 286. 90. Swank v. Chanslor-Canfield Midway Oil Co., 2 Cal. I. A. C. Dec. 330. 91. Great Western -Power Co. v. Pillsbury, 170 Cal. 180, 149 Pac. 35; 9 N. C. C. A. 466; Archibald v. Ott., 77 W. Va. 448 87 S. E. 790; Mr- Nicholas v.'Dawson, 1 W. C. C. 86. 92. Nevadjic v. N. W. Iron Co., 154 Wis. 97, 142 N. W. 271, L. R. A. 1916A, 366 Ann. ('as. 1915B, 877; Hedges v. City of Los Angeles, 1 Cal. I. A. C. Dec. 394; Coelho v. Rideout Co., 2 Cal. I. A. C. Dec. 773; Rockford Cabinet Co. v. Indus. Comm.. 111. , (1920), 129 N. E. 143, 7 W. C. L. J. 280. 625 W. O. 40 283 WORKMEN'S COMPENSATION LAW It is not willful misconduct: Where a night watchman in the employ of a construction company, knowing that escaping rob- bers were in the vicinity, through a mistake fired on deputy sheriffs who returned the fire and injured him. 93 Where a deliv- ery boy, riding a bicycle, caught on the rear end of a motor truck, which turned suddenly, causing him to be thrown to the pavement and injured him. 94 Where an employee removed a sliver from -his finger with a pocket knife, after warning of dan- ger of infection, even though infection developed in the finger, unless it could be shown that the knife was the means of intro- ducing the infection. 95 Where the deceased was violating a city ordinance he was merely guilty of negligence. 96 Where the usual means for washing up failed one evening, and the servant went to another department to heat water, where he was injured. 97 Where the employee lost his eye partly by reason of the fact that he did not care for it properly after the accident. 98 Where a female teacher shoved aside a 458-pound desk to get a necessary book from a case, and injured her spine. 99 Where a minor had been instructed not to oil certain machinery while in motion, but did so thoughtlessly after the power had been shut off and the machine was moving of its own momentum. 1 Where a deck hand was last seen leaning against a post near the edge of a barge apparently asleep and was drowned by falling off. 2 Where a miner, while temporarily waiting for another assignment, 93. In re Harbroe, 223 Mass. 139, 111 N. E. 709. 94. Beaudry v. Watkins, 191 Mich. 445, 158 N. W. 16, L. R. A. 1916F, 576, 15 W. C. C. A. 152. 95. Blain v. McKinsey, 1 Cal. I. A. C. Dec. 641. 96. Alexander v. Ind, Bd., 281 111. 201, 117 N. E. 1040, 1 W. C. L. J. 313, 15 N. C. C. A. 167. 97. In re Ayers, 64 Ind. App. , 118 N. E. 386, 1 W. C. L. J. 559, 17 N. C. C. A. 378. 98. Riley v. Mason Motor Co., 199 Mich. 233, 165 N. W. 745, 1 W. C. L. J. 406. 99. Elk Grove Union High School Dist. v. Ind. Ace. Com., 34 Cal. App. 589, 168 Pac. 392, 1 W. C. L. J. 143, 15 N. C. C A. 148. 1. Diestelhorst v. Ind. Ace. Com., 32 Cal. App. 771, 164 Pac. 44, 15 N. C. C. A. 149, 161. 2. Rideout v. Pillsbury, 173 Cal. 132. 159 Pac. 435, 12 N. C. C. A. 1032 626 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 283 rested in the shade of an ore bin, which collapsed and killed him. 3 Where an inexperienced employee entered a wine vat to clean it, and failed to test it for suffocating atmosphere. 4 Where a workman stood on a machine when the hoods were being re- moved, when he might have stood on the ground. 8 Where an in- jured workman stated in response to a question of his physician that he was not an alcoholic, when he was addicted somewhat to its use, he not understanding that his answer would affect the treatment given. 6 Driving an automobile at a speed of 35 to 15 miles, in the dark, over a fairly good and straight road, by a driver familiar with it, in a heavy, powerful car, equipped with strong lights, may be hazardous, but does not exceed gross negli- gence. 7 An employee, who violated a rule, which required that no em- ployee should work over an overhanging bank without first re- quiring it to be caved off, was not guilty of such misconduct as to place him without the scope of his employment, but was guilty of misconduct of such a nature as would entitle the employer to have the compensation of such employee reduced 50 per cent as provided under the Colorado act for the violation of a reason- able rule. 8 An employee was killed by an electric shock, while drawing gasoline for use in cleaning floors. In using gasoline the employee violated an order against the using of gasoline for this purpose, but the violation was known to the employer. In holding that the accident arose out of and in the course of employment, the court said : " That an employee, who, in an honest attempt to discharge a duty assigned him, does an act incidental thereto not specifically directed, or departs from the usual methods of performing his 3. Brooklyn Min. Co. v. State Ind Ace. Comm., 172 Cal. 774, 159 Pac. 162, 15 N. C. C. A. 151. 4. United States Fidelity etc. Co. v. Ind. Ace. Comm., 174 Cal. 616, 163 Pac. 1013, 14 N. C. C. A. 429, 5. Measick v. McEntire, 97 Kan. 813, 156 Pac. 740, 15 N. C. C. A. 160. 6. Ramlow v. Moon Lake Ice Co., 192 Mich. 505, 158 N. W. 1027. 7. Head v. Head Drilling Co.. 2 Cal I. A. C. Dec. 279. 8. Indus. Comm. v. Funk, Colo. , (1920), 191 Pac. 125, 6 W. C. L. J. 436. 627 283 WORKMEN'S COMPENSATION LAW work, does not thereby necessarily deprive himself or his depend- ents, of a right to compensation, if injured while so engaged," that, "an employee may be said to receive an injury by accident arising in the course of his employment within the meaning of the Workmen's Compensation Act of this state when it occurs within the period of the employment, at a place where the employee may reasonably be, and AA r hile he is doing something reasonably connected with the discharge of the duties of his employment." 9 A twenty year old employee working at a press was not, as a matter of law, guilty of willful misconduct within the workmen's compensation act, in catching at certain falling or loose cards, so that his hand was caught, though he had been warned against the danger of so doing. The court, in holding that the employee was not guilty of willful misconduct, said : "The doctrine that an un- premeditated and implusive act in violation of orders may not be willful misconduct finds some support in the authorities but usually non-age is an element of the decision in which such doctrine has been upheld. It seems to us, however, that the age of the person injured does not necessarily make a material difference. The tend- ency to recover something falling from a machine; to reach for a hat blown off the head by a sudden gust of wind; to apply the brakes to a 'skidding' automobile: in short to perform acts of many sorts upon the impulse of the moment, is not the failing of youth alone. The true tests to be applied have reference to tluj nature of the work being performed and the circumstances of each particular case. This court has been at pains more than once to define 'willful misconduct.' Perhaps the best definition (and. in- cidentally, the one cited by both parties to this controversy) is the one found in the opinion in Great Western Power v. Industrial Accident Commission, 170 Cal. 180, at page 189, 149 Pac. 35, 40. The court used this language: 'willful misconduct means some- thing more than negligence. It does not include every violation or disregard of a rule. Casey v. Humphries, (1913), 6 B. W. C. C. 520. But it cannot be doubted that a workman who violates a 9. Nordyke & Harmon Co. v. Swift, Ind. App. , 123 N. E. 449, (1919), 18 N. C. C. A., 1021, 4 W. C. L. J. 179; Southern Pac. Co. v. Indus. Ace. Comm., 177 Cal. 378, 170 Pac. 822, 1 W. C. L. J. 740. 628 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 283 reasonable rule made for his own protection from serious bodily injury or death is guilty of misconduct, and that where the work- man deliberately violates the rule, with knowledge of its existence and of the dangers accompanying its volation, he is guilty of will- ful misconduct. Brooker v. Warner, 23 L. T. R. 201.' " 10 A young man, 18 years old, was injured when his hand was aught while he was wiping off grease that was running down the framework of the drill press at which he was at work. There was a warning sign hanging there forbidding just such action as this while the machine was running. "The vertical shaft at the time of the injury was revolving slowly, and it was easier to wip-5 it while in motion than when still. "While applicant was wiping it he saw a stream of grease running down the framework of tlu machine from the upper shaft, and, without thinking about I he consequences likely to flow from his act, made a dive with liis cloth at this stream of grease. The gearing caught the cloth and drew his hand into it, resulting in the loss of two fingers. It is clear that the sign warning against wiping the machine while in motion was intended to cover just such unforeseen and unlikely in- juries as this. It follows, therefore, that if the warning sign, ' Stop this Machine before Repairing, Oiling, Adjusting or Wiping' constituted a safety order and regulation prescribed by the em- ployer, the wiping of the machine by the employee, with full knowl- edge of the existence of the order, and of the consequences likely to result from its violation, constituted willful misconduct. There is no question that applicant knew of the existence of this warn- ing sign, but it is in evidence that he did not know of the conse- quences likely to result from disobeying it. The reaching for the stream of oil going down the frame of the machine was in obedi- ence to an impulse, thoughtless of danger. He knew better than to try to wipe the gearings while the machine w T as in motion, anl had never done so. Neither the employer's superintendent nor the young man in whose custody applicant was placed had t>x- 10. Hyman Bros. Box & Label Co. v. Industrial Ace. Conim. Cal. , (1919), 181 Pac. Rep. 784, 4 W. C. L J. 343; North Pac. Steamship Co. v. Indus. Ace. Comm. of Cal. 174 Cal. 500, 163 Pac. 910, 15 N. C. C. A. 153. A 1 W. C. L. J. 170. 629 283 WORKMEN'S COMPENSATION LAW plained to him the risk attendant upon such wiping. Therefore one of the factors of willfulness as laid down by our Supreme Court in the Mayfield Case (Great Western Power Co. v. Pillsbury, 170 Cal. 180, 149 Pac. 35, 1 I. A. C. 669), to wit, 'Knowledge of the consequences likely to result from disobedience,' was wanting.'' 11 Where blasted stumps constituted the cheapest fuel to be secured, and it was cutomary to obtain fuel in such manner, and a mine watchman, who was required to obtain his own fuel, had not been instructed not to use explosives, was killed while blasting stumps for fuel, he was not guilty of such recklessness as 'to amount to willful misconduct. The employee's duties as a watch- man necessitated his presence, at all times, on the premises. The place of his employment was 10,500 feet above sea level. There- fore ''to protect himself from undue and unecessary exposure to the cold was a duty he owed his master as well as himself." Pro- curing fuel was, under the existing circumstances "arising out of and in the course of the employment." Assuming that he was guilty of negligence in using explosives instead of employing other means, still he would not be barred from the protection of the act, for "a peril which arises from the negligent or reckless manner in which he does the work which he is employed to do may well, and in most cases rightly, be held to be a risk incidental to the employment." There was no specific instructions against us- ing explosives, therefore the employee was not guilty of willful misconduct. The injury arose out of and in the course of the em- ployment. 12 Deceased was killed while investigating an elevator rope, which did not work right. The evidence tended to establish that it was part of his duty to frequently run the elevator, but did not show that the condition of the elevator was such as to require the services of an electrician or a report to ''elevator people." The 11. Western Pac. R. Co. v. Indus. Ace. Com. of Cal., Cal. , (1919), 181 Pac. 787, 4 W. C. L. J. 348. 12. Ocean Accident & Guaranty Corporation Ltd. v. Pallaro, (1919), - Colo. , 180 Pac. 95, 4 W. C. L. J. 15, 18 N. C. C. A. 1026; Shafter Estate Co. v. Indus. Ace. Comm. of Cal., 175 Cal. 522, 166 Pac. 24, 15 N. C. C. A. 150; Messick v. McEntire, 97 Kas. 813, 156 Pac 740, 15 N. C. C. A. 160. 630 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 283 court held that the contention of appellant, that, "deceased was guilty of willful misconduct" was not tenable, for it was the duty the employer to investigate, when the elevator ceased to operate, and determine the extent of the trouble. 18 Claimant was not guilty of willful misconduct in refusing to undergo an operation to amputate his finger, where his attending physician advised that the finger could be saved. 14 A janitor was killed by an electric shock when he entered r: room, which he had been forbidden and warned against entering. The board found that the accident arose out of and in the course of employment, but did not pass upon the question of willful mis- conduct, not believing it to be in issue, because the defendant employer failed to plead it as a defense, as provided by the legis- lative act. The appellate court held that the board was right in not deciding this issue, as it was waived by a failure to plead it. 15 Where an employee was killed, while driving a car with which he was unfamiliar, when he collided with a street car, it was held that the action of deceased was negligent, bu.t did not amount to willful misconduct." Where certain safety appliances for use in drilling steel were furnished, which appliances were sufficient to afford adequate pro- tection, and the employee chose a less effective appliance and was injured as a result thereof, it was held that the evidence supported a finding that the choice of appliances rested in the discretion of the employee and that, while it was negligent to choose the poorer appliance, still it could not be said that such action amounted to willful misconduct. 17 13. Rowe v. Leonard Warehouses, Inc., (1919), 206 Mich. 493, 173 N. W. Rep. 187, 4 W. C L. J. 393. 14. Enterprise Fence & Foundry Co. v. Majors, -- Ind. App. , 121 N. W. 6, 3 W. C. L. J. 113. 15. Northern Indiana Gas & Electric Co. v. Pietzvak, Ind. App. , 1 W. C. L. J. 590, 118 N. E. 132, 15 N. C. C. A. 168. 16. Maryland Casualty Co. v. Indus. Ace. Comm., 39 Cal. App. 229, 178 Pac. 542. 3 W. C. L.. J. 577; Merlino Conn. <~ Ma rrles Co., 93 Conn. 57, 104 Atl. 396, 2 W. C. L. J. 781; Baltimore Car Foundry Co. v. Ruzicka, 132 Md. 491, 104 Atl. 167, 2 W. C. L. J. 791, 17 N. C. C. A. 379, 4 Am. L. R. 113. 17. Haskell & Barker Car Co. v. Kay, -- Ind. App. , 119 N. E. 811, 2 W. C. L. J. 466, 17 N. C. C. A. 385. 631 283 WORKMEN'S COMPENSATION LAW Claimant froze both his hands while unloading coal and informed his employer the next morning. He was advised to consult a physi- cian, but was not informed that the phyiciaii was to be provided by the employer, in fact, the representative of the employer con- veyed the opposite idea. Claimant treated his own hands for two weeks and then received treatment at the Hartford Hospital. Had medical treatment been obtained earlier, the period of disability would have been much shortened. The court held that the claimant was -not guilty of such willful misconduct as would preclude a recovery. 18 A lineman was killed by coming in contact with a wire charged with electricity. He was guilty of contributoiy negligence or an infraction of a rule of the company, which rule was enforced with little or no diligence. It was held that decedent was not guilty of such willful misconduct as would defeat a recovery, for there must be shown an intentional disobedience to a strictly enforced rule, to support the defense of willful misconduct. 19 An employee engaged in painting the inside of tank cars was overcome by the poisonous fumes arising from the paint and died. Employees were furnished with respirators and forbidden to work inside of the cars without a respirator. On the night in question the respirator would not work and deceased went in without it. It was held that he was not guilty of willful misconduct, active, refusal, reckless, disregard or failure to perform a duty. It amounted to nothing more than thoughtlessness, inattention, heed lessness, or nonconformity to rules. 20 18. Rainey v. Tunnel Coal Co., 93 Conn. 90, 105 Atl. 333, 3 W. C. L. J. 227; Hall v. J. LaCourciere Co., 93 Conn. 1, 104 Atl. 348, 2 W. C. L. J. 769, 17 N. C. C. A. 390. 19. In re Isaac Bryant, 3rd A. R. U. S. C. C. 181; In re Wm. J. Corkey. 3rd A. R. U. S. C. C. 182; Indianapolis Light & Heat Co. v. Fitzwater, - Ind. App. , 121 N. E. 126, 3 W. C. L. J. 284; Mailers v. Industrial Bd. of 111., 281 111. 418, 117 N. E. 1056, 1 W. C. L. J. 522; Chicago Rys. Co. v. Indus. Bd. of 111., 276 111. 112, 114 N. E. 534, 15 N. C. C. A. 164; Missis- sippi River Power Co. v. Indus. Comm., 289 111. 353, 124 N. E. Rep. 5F.2, 5 W. C. L. J. 50; In re Marian Scariano, 3rd A. R. U. S. C. C. 181. 20. General American Tank Car Corporation v. Borchardt, - - Ind. App. , 122 N. E. 433, 3 W. C. L. J. 700; National Car Coupler Co. v. Marr, Ind. App. , (1919), 121 N. E. 545, 3 W. C. L. J. 456; Gurski v. Susquehanna Coal Co., 262 Pa. 1, 104 Atl. 801, 17 N. C. C. A. 943. 632 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 283 An employee was killed by an electric shock, received while li i was washing up after the days work, at a place provided for that purpose. It was held that recovery could not be defeated on the grounds that the electric wire was attached to the wash basin for the express purpose of shocking other employees by a practical joker, in the absence of a showing that the injured party was him- self a participant in the practical joke, otherwise no willful mis conduct can be shown on his part. 21 An employee, whose duties required him to carry coal to tin- third floor of a buildinir. was injured while using a lift to get th<- coal up to the third floor. There was a notice forbidding any one in the shop to use the lift, also a notice stating that the lift was to be used for coal, between 8:30 a. m. and 9 a. m. Applicant, finding no operator at the lift, went and secured an engine tender to operate it and was seriously injured on the way up. An award was made, the county judge holding that the applicant had done nothing to take him outside the scope of his employment. The court of appeal held that the applicant was doing what he was supposed to do, and in getting some one else to operate the lift and not touching it himself, he was doing all that was required of him. 22 A family servant was burned to death when she attempted to liirht a fire by the use of wood alcohol. The court hold that she was not guilty of willful misconduct in disobeying the orders a- gainst using a forbidden nn-ans of starting the fire, saying: "We must conclude that it arose out of and in the course of the employ- ment unless the disobedience of orders prevents that conclusion. The disobedience of orders in this case was a disobedience of orders as to the way in which the work should be done. The work itself was the very work decedent was <>x|>rct--.l to do. It was done at the very place where it was meant to be done. ' ' 23 21. Hollenbach Co. v. Hollenbach, 181 Ky. 262, 204 S. W. 152, 16 N. C. C. A. 879, 2 W. C. L. J. 492. 22. Marshall v. Joseph Rodgers & Sons, Ltd., (1918), W. C. & Ins. Rep. 39, 17 N. C. C. A. 381. 23. Kolaszynski v. Kile, 91 N. J. L. 37. 102 All. 5, 15 N. C. C. A. 160; Macechko v. Bowen Mfg. Co., 179 N. Y. A. Dlv. 573, 166 N. Y. S. 822. 13 N. C. C. A. 163; Zoladtz v. Detroit Auto Specialty Co., (Mich.), (1919;, 172 N. W. 549, 4 W. C. L. J. 259. 633 283 WORKMEN'S COMPENSATION LAW A carpenter met with an accident because he built a scaffold out of condemned timbers. It was held that, since there was a conflict in the evidence as to whether the carpenter was aware of the condition of the timbers, he could not be held guilty of will- ful misconduct, and compensation was awarded. 24 A fellow employee was overcome by poisonous gas in a wine vat, and the foreman called for help and deceased responded, and after rescuing his fellow employee was himself overcome and died. In holding that deceased was not guilty of willful misconduct in entering the wine vat contrary to the commands and order of his superiors pertaining to the entrance into such vats before they had been cleansed by water, the court said: "The conclusion, when all the facts and circumstances in the case are considered, that appellant's superintendent and foreman intended, by the re- marks made by the deceased at the time he was preparing to en- ter the vat, to simply warn him of the danger of doing so, and a mere protest against it, and not in the sense of a command not to do so, or as forbidding the act, is not unreasonable and' unwar- ranted, and we are unwilling to disturb the judgment of the trial court for the reason urged by appellant under the assignment under consideration. ' ' 25 An employee was killed while blasting concrete foundations with dynamite. The employer contended that deceased was guilty of willful misconduct in violating a city ordinance, by using li/o and 2 sticks of dyamite instead of one as provided in the ordinance. It was not shown that this violation of the ordinance was the proxi - mate cause of the death, and since there was no showing of willful misconduct, which is an affirmative defense that the employer must set up, compensation was awarded. 26 Where an accident board found that deceased came to his death 'as the result of an accident, which was caused by deceased's state 24. Harrison v. Ford, (1915), W. E. & Ins. Rep. 272, 15 N. C. C. A. 163. 25. General Ace. Fire & Life Assur. Corp. Ltd. v. Evans, (Tex. Civ. App.), 201 S. W. 705, 17 N. C. C. A. 382, 1 W. C. L. J. 1148; Kent v. Boyne City Chemical Co., 159 Mich. 671, 162 N. W. 268, 15 N. C. C. A. 165. 26. Rosedale Cemetery. Assn. v. Indus. Ace. Comni. of Cal., 37 Cal. App. 706, 174 Pac. 351, 17 N. C. C. A. 389, 2 W. C. L. J. 754. 634 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 283 of intoxication, but further found that deceased was not guilty of willful misconduct in getting into such a condition, the Appellate Court held, that every condition of intoxication, even when volun- tarily entered into, does not constitute willful misconduct, and as there was sufficient evidence here to justify the finding of the board their finding is final.- 7 A miner was killed while riding in a tub, a practise engaged in for the amusement of the employees, but forbidden by the employ- er. The Appellate Court held that since the practise had been going on, despite the prohibition, the applicant should be allowed to show that the employer knew of and winked at the practise. 28 Where a workman, employed on a roof some twenty feet abo^e the ground, when the call for lunch was made, came down on a rope instead of using a ladder provided for such purpose, it was held that he was not guilty of such intentional and willful mis- conduct as would defeat a claim for compensation. 29 Where the outcome of an operation is not problematical or at- tended with unusual risk, a willful, unreasonable refusal on the part of the injured employee will suspend the liability of the em- ployer during the time such wilful refusal continues. If the in- jured employee absolutely refuses to submit to a reasonable oper- ation the continued disability will be attributed to his willful mis- conduct and not to the injury. 30 27. Nekoosa-Edwards Paper Co. v. Industrial Comm. of Wis., 154 Wis. 105, 141 N. W. 1013, L. R. A. 1916A, 348, 3 N. C. C. A. 661; Hahneman Hospital v. Indus. Bd., 282 111. 316, 118 N. E. 767, 1 W. C. L. J. 754. 28. Waddell v. Cqltness Iron Co., (1913) W, C. & Ins. Rep. 42, (1912). 2 Sc. L. T. 301, 4 N. C. C. A. 887; Tomlinson v. Garratts Ltd., (1913), W. C. & Ins. Rep. 416, 4 N. C. C. A. 887; Casey v. Humphries, (1913), W. C. & Ins. Rep. 485, 4 N. C. C. A. 881; Sesser Coal Co. v. Indus. Comm., - 111. , (1921), 129 N. E. 536. 29. Clem v. Chalmers Motor Co., 178 Mich. 340, 144 N. W. 848, 4 N. C. C. A. 876 L. R. A. (1916), A 352; Chicago Rys. Co. v. Indus. Bd.. 277 111. 512, 115 N. E. 647. 30. Krlcinovlch v. American Car. Co.. 192 Mich. 687, 159 N. W. 362. 15 N. C. C. A. 79; Lesh v. 111. Steel Co.. 163, Wis. 124, 157 N. W. 539. 15 N. C. C. A. 80; Marshall v. Ransome Concrete Co., 33 Cal. App. 782, 166 Pac. 846. 15 N. C. C. A. 83; Bruce v. Taylor A Maliskey. 192 Mich. 34, 14 N. C. C. A. 145, 158 N. W. 153; Hall v. I. LaCourciere Co., 104 Atl. 348, 93 Conn. 1, 2 W. C. L. J. 769. 17 N. C. C. A. 390; Walsh v. Locke & Co., (1914), W. C. & Ins. Rep. 98. 6 N. C. C. A. 675. 635 283 WORKMEN'S COMPENSATION LAW "The deceased, as a laborer, was obliged to pass from one part of his employer's premises to another. Instead of walking all the way, as indeed he might have done, he undertook to ride upon his employer's truck going the same way. In passing from one point to another upon the employer's premises he was doing what his employment necessarily called for. That he should attempt to ride when the opportunity offered, was not a departure from his employer's business. It is not found, nor is there any presump- tion, that any danger was attendant upon such riding. Such at- tempt to ride was, as matter of common experience, an ordinary and to be expected incident of his employment. He was doing what his employment called for, not necessarily the riding, but the moving from place to place. Upon the finding, the act of the decedent was not done in violation of any orders received by him, and it was manifestly in furtherance of the performances of his duties. Had the deceased slipped and been injured while walking from one place of work to another on his employer's premises in the course of his work, it would hardly be claimed that the injury did not arise out of the employment. What difference did it make that he slipped while attempting to get on the truck for the same purpose?' Furthermore as long as he was violating no specific, enforced rule he was not guilty of willful misconduct." 31 Where it was contended that claimant had no right under any circumstances to board a moving train and therefore that his in- jury did not arise out of the employment, the appellate court held that where the Industrial Board found that there was sufficient evidence to support a finding that the employee was not guilty of willful misconduct in riding oil the foot-board in the rear of an en- gine, the appellate court would not disturb such a finding. 32 Where smoking was forbidden but the carrying of matches was not forbidden an employee injured, as a result of the matches 31. Fiarenzo v. Richards & Co. et al., 93 Conn 581, 107 Atl. Rep. 563, 4 W. C. L. J. 599. 32. Decatur Railway & Light Co. v. Indus. Bd. of 111., 276 HI. 472, 114 N. E. 915, 14 N. C. C. A. 139, 636 ACCIDENT ARISlNd o( T (F coiKSK OP EMPLOYMENT. 284 setting on fire his oil soaked clothing, cannot be said as a matter of law to be without the protection of the Illinois Act: 38 The use of a freight elevator in leaving work by a female em- ployee did not ainmmt to willful misconduct, but in using it she placed herself without the scope of her employment so the injury did not arise out of the employment. 3 * Where a driver of a truck and deceased, employees of a team- ster, sent to haul goods to a station after loading boxes, which were on a platform, used an elevator to move goods to a top floor, they did not depart from the scope of their employment, and riding on the elevator with the boxes did not amount to a diliberate and reckless indifference to danger which would bar a recovery. 34 " 284. Acts Constituting Willful Misconduct. Injuries sus- tained in an automobile accident by an employee, who had been strictly forbidden to use the automobile in the carrying out of his duties, did not arise out of the employment. 35 Where a coal miner violated an enforced rule of the company in advancing to where a shot had missed lire, before the stipulated time had elapsed, as provided for in such cases, it was held that he was guilty of such misconduct as would preclude a recovery. 3 " Where a boy in a mine was knocked from a truck upon which \ve was riding, a practice which was strictly forbidden, as the boy well knew, the court held that the boy was guilty of wilful miscon- duct. 3T Where a chauffeur was killed in a fight which he began with another chauffeur to see who would load bricks first, it was held 33. Steel Sales Corp. v. Indus. Comm., 111. , (1920), 127 N. ;:. 698, 6 W. C. L. J. 303. 34. Dulac v. Dumbarton Woolen Mills, Me. , (1921), 112 All. 710. 34a. Colbourn v. Nichols. 109 Atl. 882, Del. Sup. Ct. , (1920), 6 W. C. L. J. 140. 35. Reimers v. Proctor Publishing Co., 85 N. J. L. 441, 89 Atl. 931. 4 N. C. C. A. 738; In Re Geo. Walters, 2nd A. R. U. S. C. C. 281; In Re Henry Young, 2nd A. R. U. S. C. C. 283. 36. M'Kenna v. Niddrie v. Benhr Coal Co., Ltd., (1915). W. C. * Ins. Rep. 505, (1915). 2 Sc. L. T. 234, 15 N. C. C. A. 166. 37. Madew v. Chatterley Whitfleld Collieries, Ltd.. (1917), 2 K. B. 742, 15 N. C. C. A. 166. 637 284 WORKMEN'S COMPENSATION LAW that he was guilty of wilful misconduct of a nature to preclude re- covery, when he engaged in an undertaking which was destined to bring about the injury or death of himself or another, within the meaning of the exception in Section 10 of the New York Act. 3S A machinist's helper omitted to wear goggles while at danger- ous work, merely because he disliked the goggles, which was con- trary to rules and specific instructions. It was held that the ac- tion of the employee on this occasion amounted to wilful miscon- duct. 39 A foreman entered a transformer room and was electrocuted. He was cautioned, by signs, not to enter this room. His duties did not require his presence in the room, and he was conscious of the danger. In holding that the wilful misconduct of the employee precluded a recovery, the court said: "There is no evidence in this record which fairly tends to prove that the accident arose out of and in the course of the employment of the deceased. The transformer room in the plant of the plaintiff in error was a place of great danger. Realizing this, plaintiff in error properly took every precaution to exclude the public and all of its employees except those whose duties required them to enter or pass through the room. There was thus created within the plant a zone which the deceased was forbidden to enter. In disobedience of the rules of plaintiff in error he entered this zone, and the accident which resulted in injury to him cannot be said to have arisen out of and in the course of his employment." 40 An employee was injured while using his hand to clear away sand from the top of a machine, instead of using a scraper provid- ed for that purpose, because he could make more money each week if he did the work by hand instead of using the scraper. It was held that since he had been specifically instructed to use the 38. Stillwagon v. Callan Bros., 183 App. Div. 141, 170 N. Y. S. 677, 2 W. C. L. J. 379. 39. McAdoo v. Indus. Ace. Comm., (Gal.), 181 Pac. 400, 4 W. C. L. J. 476; Pac. Coast Casualty Co. v. Pillsbury, 31 Cal. App. 701, 162 Pac. 1040, 14 N. C. C. A. 135. . 40. Northern Illinois Light & Traction Co. v. Industrial Board of 111., 279 111. 565, 117 N. E. 95, 15 N. C. C. A. 158. 638 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 284 scraper, which was safe, the applicant's conduct was of such a deliberate character as to preclude recovery. 41 An experienced laundryman, while operating a wringing ma- chine, removed a guard to save time. He knew it was provided for his safety. He was held to be guilty of wilful misconduct, and could not recover for resulting injuries, the removal of the guard being intentional, deliberate and willful, because done for a definite 11 purpose. Where a railroad engineer sustained injuries in a collision, which was brought about by his own violation of rules of the company, promulgated for the government of his conduct, he cannot recover because such violation amounts to wilful misconduct on the part of the injured party. 43 A night watchman was killed when he fell down a chute. The evidence tended to establish that decedent procured a chair and sat down at the entrance to the chute, when he dozed off to sleep and lost his balance, falling down the chute. It was not shown that he was allowed to abandon his duties for this purpose. The court held that, while the rule pertaining to wilful misconduct was inap- plicable, still the act of decedent was not incident to his employ- ment, was not authorized or induced by his employer in connection with his employment, and therefore did not arise out of his em- ployment. 44 An employee was killed when he attempted to leave an elevator while it was in motion. Deceased and the elevator operator were engaged in horseplay at the time of the accident. The court hold 41. Gaunt v. Babcock & Wilcox Ltd., (1918), W. C. & Ins. Rep. 10, 17 N. C. C. A. 384. 42. Bay Shore Laundry Co. v. Indus. Ace. Comra. of Cal., 36 Cal. App 547, 172 Pac. 1128, 2 W. C. L. J. 207, 17 N. C. C. A. 387; Wardle v. Enthoven & Sons, Ltd., (1917), W. C. & Ins. Rep. 18, 86 L. J. K. B. 309, 15 N. C. C. A. 154; Bischoff v. American Car & Foundry Co., 190 Mich. 229, 157 N. W. 34, 15 N. C. C. A. 155; Pac. Coast Casualty Co. v. Pillsbury. 31 Cal. App. 701. 162 Pac. 1040, 15 N. C. C. A. 156. 43. Rask v. Atchison, T. & S. F. Ry. Co., 103 Kan. 440. 173 Pac. 1066, 2 W. C. L. J. 629; Eugene Dietzen Co. v. Indus. Bd. of 111., 279 111. 11. 116 N. E. 684, 14 N. C. C. A. 125; In re O. Black, 3rd A. R. U. S. C. C. 180. 44. Gifford v. Patterson, 222 N. Y. 4. 117 N. E. 946, 1 W. C. L. J. 434. 639 284 WORKMEN'S COMPENSATION LAW that decedent was guilty of wilful negligence, even though it is conceded that the accident arose out of and in the course of the em- ployment. Therefore applicant was precluded from recovering. 45 Where a statute relieves an employer from liability when an em- ployee willfully refused to use a guard or protection against acci- dents, furnished for his use pursuant to a statute or by order of the State Labor Commissioner, the mere voluntary and intention- al failure to use such appliance does not necessarily render the ommission wilful. The wilful failure contemplated carries with it the idea of premeditation, obstinacy and intentional wrong doing. The question of wilful refusal must be determined by the indus- trial commission, and if there is any evidence to support the find- ing of the board, it will not be disturbed. 48 An employee who was injured while violating a penal statute, fixing a speed limit, is guilty of "willful misconduct" under the workman's compensation act. 47 The right to compensation is cut off by intoxication only if tha intoxication was the sole cause of the injury. 48 Where a police officer was shot by a person he attempted to ar- rest, recovery could not be had where the statute excluded injuries resulting from the intentional acts of another. "The plaintiffs in error, claimants before the commission, contend, in effect, that the above-quoted clause of section 8, of the statute of 1915, should not be literally construed, but that the words 'injury in- tentionally inflicted by another' should be interpreted to refer only to an injury intentionally inflicted by another for reasons 45. Feda v. Cudahy Packing Co., 166 N. W. 190, 102 Nebr. 110, 1 W. C. L. J. 649; Pierce v. Boyer-Van Kuran Lumber & Coal Co., 99 Neb. 321, 156 N. W. 509, L. R. A. 1916D, 970; see also, L. R. A. 1916A, p. 47, note 93, and R. 240, note 17a. 46. Wick v. Gunn, -- Okla. , 4 Am. L. R. 107, 169 Pac. 1087, 1 W. C. L. J. 716, 17 N. C. C. A. 377; Great Western Electric Chemical Co. v. Indus. Ace. Comm., 35 Cal. App. 450, 170 Pac. 165, 1 W. C. L. J. 491, 17 N. C. C. A. 383. 47. Fidelity etc. Co. v. Industrial Ace. Comm., 171 Cal. 728, 654 Pac. 834, L. R. A. 1916D, 903. 48. American Ice Co. v. Fitzhugh, 128 Md. 382, 97 Atl. 999, Ann. Gas. 1917D, 33; Roebling Son's Co. v. Indus. Ace. Comm., 36 Cal. App. 10, 171 Pac. 987, 2 W. C. L. J. 38. 640 ACCIDENT ARISING OUT OF COURSE OP EMPLOYMENT. 284 personal to the assailant, and not to relate to, or include, any .In- jury which although inflicted intentionally by a third person, was one caused by the employment, or arose as the result of a peril incident to the employment as in the instant case. However much the construction contended for would result in harmonizing section 8 with the general purpose 6f the Workmen's Compensation Act, nevertheless the contention cannot be sustained. The clause and phrase in question is clear and explicit, and must be enforced ac- cording to its plain meaning. As said in Hause v. Rose, 6 Colo. 26 : 'We cannot, as a court, supply omissions, nor make law to fit an exceptional case. * * * The statute, being explicit, does not admit of interpretation beyond its express letter, and must be HJ- iniiiistored as we find it.' " 49 Section 6b of the California Workmen's Compensation Act au- thorizes increased compensation when the employer is guilty of "serious misconduct." In defining this term the supreme court of California said: "Serious misconduct" of an employer must be taken to mean conduct which the employer either knew or ought to have known, if he had turned his mind to the matter, to be conduct likely to jeopardize the safety of his employees. Jt seems clear that according to this test, the commission was amply warranted in finding that the maintenance of the improperly pro tected shafting immediately over and in close proximity to, the conveyor belt was such serious misconduct." It was further held that the word "officer" as used in that section means one invest- ed with general conduct and control in a particular place of busi- ness and was not used in the technical sense as one who is elected or whose office is provided for by the articles of incorporation or by laws. 80 Where an employee departed from the scope of his employment in violation of orders and as a direct result thereof was accidental- ly crushed to death, it was held that this death was not caused by an injury arising out of and in the course of the employment." 49. Helburg v. Town of Louisville, (1919), (Colo.), 180 Pac. 761, 4 W. C. L. J. 152. 50. E. Clemens Horst Co. v. Indus. A. C. of Calif., Cal. , 193 Pac. 105. 7 W. C. L. J. 3. 51. West Side Coal A Mining Co. v. Indus. Comm., III. . (1920), 126 N. E. 218, 5 W. C. L. J. 686. 641 W. C. 41 285 WORKMEN'S COMPENSATION LAW 285. Sportive Acts. Girls employed in a factory were in the habit of amusing themselves, during the lunch period, by rid- ing on trucks in the factory, with the permission of the foreman, but contrary to instructions of the employer. "While thus engag- ed, applicant fell from the truck, injuring her knee and ankle. It was held that since this play had become a settled custom, with the knowledge and express approval of the forman in charge, her in- jury might be regarded as having arisen out of her employment/ 3 An employee was injured when he came in contact with an electric wire, which had been fastened to a knob of a washroom door, through which he was compelled to pass to reach the wash- room at the close of the day's work; ''It was shown that plain- tiff's foreman, the man who directed his work, was one of the per- petrators of the mischief which injured the plaintiff. This fore- man knew that this particular prank had become a custom on the employer's premises. Defendant contends that this person was not a foreman, but the great weight of the evidence is to the contrary. It is true that this foreman had no general authority, but he was the person whom plaintiff had to obey while in defend- ant's employment." Compensation was allowed. 54 A fellow employee either innocently or maliciously, placed ::i air hose against claimant's body. The hose slipped down against claimants rectum. At first the hose was dead, but another em- ployee turned on the air. As a result claimant's rectum was rup- tured for a distance of five inches, necessitating an operation. In reversing an award for compensation, the Supreme Court held that, while the accident arose in the course of the employment, it did not arise out of it, the court saying that the Workman's Compensation Act covered industrial accidents only, and that it 53. Thomas v. Proctor and Gamble Mfg. Co., 104 Kan. 432, 179 Pac. 372, (1919), 18 N. C. C. A. 1044, 3 W. C. L. J. 712. 54. White v. Kansas City Stockyards Co., 104 Kan. 90, 177 Pac. 522, (1919), 18 N. C. C. A. 1044, 3 W. C. L. J. 476; Hollenbach Co. v. Hollen- bach, 181 Ky. 262, 204 S. W. 152, 16 N. C. C. A. 879, 2 W. C. L. J. 492. For facts of last case see page 633 ante. 642 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 285 could not be said that sportive acts are industrial accidents arising out of the employment. 88 An employee was injured while standing in line to receive iijs pay, when the men in the line began pushing forward and back- wards, causing applicant to slip and fall upon a concrete floor The court held that the accident arose out of and in the course of the employment. 50 Claimant lost the vision of his eye as a result of being struck by a missile thrown by a fellow employee in horseplay. This practise had been going on for SOUK- time, but claimant had never partici- pated in it. and was known, or by the exercise of ordinary care could have been known to the employer. Affirming an award in favor of claimant, the court said : "The rule is well enough settled that where workmen step aside from their employment and engage in horseplay or practical joking, or so engage while continuing their work and accidental injury results, and in general where one in sport or mischief does some act resulting in in jury to a fellow worker, the injury is not one arising out of the employment with- in the nieaiiinir of the compensation Acts. * * Here we conceive the situation to be different. Filas was exposed by his employ nt to the risks of injury from the throwing of sash pins in sport and mischief. He did not himself engage in the sport. His employer did not stop it. The risk continued. The accident was the natural result of the missile-throwing proclivities of som of Filas' fellow workers and was a risk of the work as it was con- ducted." 57 55. Tarpper v. Weston Mott Co., 200 Mich. 275, 166 N. W. 857, 16 N. C. C. A. 923, 1 W. C. L. J. 1040; Federal Rubber Mfg. Co. v. Havolic, 162 Wis. 341, 156 N. W. 143, L. R. A. 1916D, 968, 12 N. C. C. A. 795; Furniss v. Gartside, 3 B. W. C. C. 411; Cole v. Evans, 4 B. W. C. C. 138; Ballarde Adm'x v. Louisville & N. R. Co., 128 Ky. 826, 16 L. R. A. (N. S.) 1052, 110 S. W. 296, 13 N. C. C. A. 664; Payne v. Indus. Comm., 111 , 129 N. E. 122, (1920), 7 W. C. L. J. 276. 56. Pekin Cooperage Co. v. Indus. Bd. of 111., 277 111. 53, 115 N. E. 128, 16 N. C. C. A. 635; Markell v. Daniel Green Felt Shoe Co., 221 N. Y. 493, 116 N. E. 1060, 15 N. C. C. A. 285. 57. State ex rel. Johnson Sash & Door Co. v. Dist. Court of Hennepin County, 140 Minn. 73, 167 N. W. 283. 16 N. C. C. A. 921, 2 W. C. L. J. 95. 643 285 WORKMEN'S COMPENSATION LAW A mortar mixer sustained an injury to his eye, by being struck with a lump of mortar from above. There was evidence tending to establish that the mortar was thrown by an employee from the upper scaffold in horseplay, and that this particular employee was in the habit of indulging in horseplay to the knowledge of the employer. The court said: "Where a workman, known by his master to be in the habit of indulging in dangerous play with his fellow workmen, is retained in his master's employ, the danger of injury from such play becomes an incident of the employment of the other workmen, and injury to any of the other workmen, while performing regular work, caused by such play, comes within the provisions of the workmen's compensation act." 58 Aji employee was electrocuted as the result of a practical joke of a fellow employee. This practise of horseplay was not known nor assented to by the employer. The court said on affirming an award: "Here the deceased in the usual course of his duty was required to work upon the conduit at the place in question and at the time of his death was engaged in the performance of his dutl^ and had not in the slightest degree departed therefrom, and while so engaged he was instantly killed. We think it must be said under such circumstances that the deceased was performing a service growing out of and incidental to his employment. The ac- cident was one that followed as a natural incident to the work performed. The hazard was one to which the decedent would not have been equally exposed apart from his employment. The dan- ger was one peculiar to his work and not common to the neigh- borhood." 09 An employee fell and was injured when he attempted to dodge a blow directed at him by a fellow employee in horseplay, and the injuries resulted in his death. The court said; "An employer is not liable, under the Workmen's Compensation Act (P. L. 1911, 58. Stuart v. Kansas City, 102 Kan. 307, 171 Pac. 913, 16 N. C. C. A. 923, 2 W. C. L. J. 58. 59. Newport Hydro-Carbon Co. v. Indus. Comm. of Wis., 167 Wis. 630, 167 N. W. 749, 16 N. C. C. A. 924, 2 W. C. L. J. 421. 644 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 285 p. 134), to make compensation for injury to an employee which was the result of horseplay or skylarking, so called, whether the injured or deceased party instigated the occurrence or took DO part in it; for, while an accident, happening in such circum- stances may arise in the course of, it cannot be said to arise out of, the employment." 60 Where an employee was injured when the assistant Superin- tendent, in sport, turned an air compressor upon him, it was held that the accident arose out of the employment, since the habit of so using the air compressor was known to the employer and not prohibited. 61 Under the New York "Workmen's Compensation law it was held that compensation might be granted to a workman whose eye was injured by a fellow servant as the result of a quarrel over their work, though the facts indicated skylarking on the part of the em- ployee who caused the injury. 62 Where an elevator operator left his post to scuffle with a fellow employee and sustained injuries, it was held that the injury did not arise out of the employment. 63 Two employees engaged in a scuffle, and were stopped by the foreman and ordered back to work. Subsequently T. struck the applicant on the head with an ice pick, fracturing his skull and rendering him unconscious. Reversing a judgment, holding that the accident arose out of the employment, the court said: We think that because of the skylarking which came under the ob- servation of the president and superintendent of the ice com- 60. Hully v. Moosbrugger, 88 N. J. L. 161, 95 Atl. 1007, 12 N. C. C. A. 795, L. R. A. 1916C. Rev'g 93 Atl. 75, 8 N. C. C. A. 283; Garrett v. Louis- ville & N. R. Co., 196 Ala. 52, 71 So. 685. 13 N. C. C. A. 663; ; Terlecki v. Straus, 86 N. J. L. 708, 92 Atl. 1087; Schmoll v. Weisbrod & Hess Brg. Co., 89 N. J. L. 150, 97 Atl. 723. 61. In Re Loper, 64 Ind. App. , 116 N. E. 324. 62. In Re Heitz, 218 N. Y. 148, 112 N. E. 750, L. R. A. 1917A, 344. Affirming order Heitz v. Ruppert, 171 N. Y. A. D. 961, 155 N. Y. S. 1112, 14 N. C. C. A. 227, and reargument denied in 218 N. Y. 702, 113 N. E. 1057. But see New York Case at end of this section, Leonbruno v. Chaplin Silk Mills, 183 N. Y. 8. 222. Affd. in 128 N. E. 711. 63. Re Moore, 225 Mass. 258, 114 N. E. 204; Burton v. Eggette Coal Co., 37 N. J. L. 271, 9 N. C. C. A. 663. 645 285 WORKMEN'S COMPENSATION LAW pany's plant, namely, skylarking between those boys, charged the president and superintendent with contemplating no more than that the same might occur again, jthat is skylarking or horseplay, not that one boy might thereafter commit an atrocious assault upon the other." 64 An employee fell down a stairs, as the result of being tickled in the ribs with a newspaper by a fellow employee. The court held that an accident resulting from one employee playing a trick upon another, though without malice, cannot be said to arise out of the employment, merely because such practises have been sanctioned by a custom existing among such employees. To entitle the injur- ed employee to compensation the injury must have resulted from a risk reasonably incident to the employment, and, while it need not have been foreseen or expected, it must, after the event ap- pear to have flowed from that source as a rational consequence. li5 Where a boy was injured by being struck in the eye by a chunk of coal thrown by a fellow employee in horseplay, the arbitrator found that the accident arose out of the employment, because the circumstances of th boy's employment were such as to expose him to special risk of stones being thrown by other boys engaged in the same work of picking stones out of the coal. On appeal to the House of Lords this judgment was affirmed. 68 An employee had his hand crushed by a trip-hammer, when he attempted to remove a tin can placed upon the plate of the ham- mer by a fellow employee in sport. It was held that the accident arose out of and in the course of the employment, it appearing that the workman took no part in the sport, but simply sought to clear the die of the obstruction so he could continue work. ' ' Had Knopp been engaged in joking with Novak or playing with him, and in carrying on their pranks, Novak would put the can on the die and Knopp removed it, both entering into the spirit of the 64. Mountain Ice Co. v. McNeil, 91 N. J. L. 528, 103 All. 184; Rev'g - N. J. L. , 103 Atl. 912, 2 W. C. L. J. 532. 65. Coronada Beach Co. v. Pillsbury, 172 Cal. 682, 158 Pac. 212, 12 N. C. C. A. 789, L. R. A. 1916F, 1164. 66. Clayton v. Hardwick Colliery Co., Ltd., (1916), W. C. & Ins. Rep. 33, 12 N. C. C. A. 791; Rev'g (1914) W. C. & Ins. Rep. 343, 11 N. C. C. A 237. 646 i ACCIDENT ARISING OUT OF COURSE OF EMPLOYMENT. 285 transaction in concert, it may be that appellee could not be held to have received his injury in the course of his employment. But in thin case appellee took no part in the joking himself, but pro- ceeded to clear the die of the obstruction upon it so that he could continue the work he was employed by appellant to do, and what he did was for the benefit of his employer."" Where section men were propelling a hand car at a high rate of speed for their own amusement and thereby caused plaintiff to lose his hold on the handle bars and to fall from the car, sustain ing injuries, it was held that in negligently overspeeding the car the men were engaged in the performance of their duty to the master, and were acting within the scope of their employment, and therefore the master was liable. The court said that the employ- ees were charged with negligently performing the very act which it was their duty to perform, that is to propel the car, and that in overspeeding it they negligently conducted the master's busi ness. 88 A shirt factory employee, while in one of two adjoining toilet rooms, felt something touch her arm, and while looking through a crack to see where the article came from, another employee thrust some scissors through the crack into her right eye. It was held that the injury resulted solely from the sportive act of a co-work- er, who in no way represented the master, and which act in no way grew out of or was connected with the employment. 89 In a recent New York case the appellate Division held that sportive acts are as much an element of risk in an occupation as any other element that enters into such risks. This decision was affirmed by the court of appeals. The opinion in full follows : "The claimant while engaged in the performance of his duties, in the employer's factory was struck by an apple which one of his fellow servants, a boy, was throwing in sport at another, and as a consequence lost the better part of the sight on one eye. lie did 67. Knopp T. American Car and Foundry Co., 186 111. App. 605, 5 N. C. C. A. 798. 68. Soderlund v. Chicago, M. ft St. P. Ry. Co., 102 Minn. 240, 113 N. W. 449, 6 N. C. C. A. 801. 69. De Filllpis v. Falkenberg. 170 App. Div. 163, 155 N. Y. Supp. 761. 12 N. C. C. A. 568. 647 285 WORKMEN'S COMPENSATION LAW not participate in the horseplay, and had no knowledge of it fill injured. The question is whether the accident was one 'arising out of and in the course of employment/ within the meaning of the statute (Workmen's Compensation Law, Par. 3, Subd. 7; Consol. Laws, c. 67). "(1) That it arose 'in the course of employment' is unques- tioned. That it arose 'out of employment, we now hold. The claimant's presence in a factory in association with other work- men involved exposure to the risk of injury from the careless acts of those about him. He was brought by the conditions of his work 'within the zone of special danger.' Thorn v. Sinclair, 191.7 A. C. 127, 142. Whatever men and boys will do, when gathered together in such surroundings, at all events if it is something reasonably to be expected, was one of the perils of his service. We think with Kalisch, J., in Hully v. Moosbrugger, 87 N. J. Law, 103, 93 At. 79. that it was 'but natural to expect them to deport them- selves as young men and boys, replete with the activities of life and health. For workmen of that age or even of maturer years to indulge in a moment's diversion from work to joke with or play a prank upon a fellow workman, is a matter of common knowledge to every one who employs labor.' The claimant was injured not merely while he was in a factory, but because he was in a factory, in touch with associations and conditions inseparable from factory life. The risks of such associations and conditions were risks of the employment. Thorn v. Sinclair, supra ; Matter of Redner v. Faber & Son, 223 N. Y. 379, 119 N. E. 842. "(2) We think the precedents in this state, whatever variance of view there may be in other jurisdictions, sustain our present ruling. This case is not within the principle of Matter of De Filippis v. Falkenberg, 219 N. Y. 581, 114 N. E. 1064, and Matter of Stillwagon v. Callan Brothers, 224 N. Y. 714, 121 N. E. 893, where the claimant, joining in the horseplay, had stepped aside from the employment. Cf. Matter of Di Salvio v. Meihan Co., 225 N. Y. 123, 121 N. E. 766. This case is rather within the prin- ciple of Matter of Verschleiser v. Stern & Son, 229 N. Y. 192, 128 N. E. 126, where the claimant, while engaged in his work, was assaulted by fellow workmen who wished to tease and harass 648 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 285 him. Cf. Markell v. Green Felt Shoe Co., 221 N. Y. 493, 116 N. E. 1060; Matter of Heitz y. Ruppert, 218 N. Y. 148, 112 N. E. 750, L. R. A. 1917A, 344. We do not overlook the cases in other jurisdictions. Hulley v. Moosbrugger, supra, was reversed by the New Jersey Court of Errors and Appeals in 88 N. J. Law, 161, 95 Atl. 1007, L. R. A. 1916C, 1203. It is in accord, however, with a decision of the Supreme Court of Illinois. Pekin Cooperage Co. v. Industrial Board, 277 111. 53, 115 N. E. 128. English cases hos- tile to the award (Armitage v. Lancashire & Yorkshire Ry. Co., 1902, 2 K. B. 178; Fitzgerald v. Clarke & Son, 1908, 2 K. B. 796) are inconsistent, it would seem, in principle with later rulings of the House of Lords (Thorn v. Sinclair, supra ; Dennis v. White & Co., 1917, A. C. 479. Cf. Matter of Redner v. Faber & Son, supra, and Matter of Grieb v. Hammerle, 222 N. Y. 382, 118 N. E. 805). They are certainly inconsistent, with the broader concep- tion of employment and its incidents to which this court is now committed. Matter of Verschleiser v. Stern & Son, supra. The risks of injury incurred in the crowded contacts of the factory though the acts of fellow workmen are not measured by the ten- dency of such acts to serve the master's business. Many things that have no such tendency are done by workmen every day. The test of liability under the statute is not the master's dereliction, whether his own or that of his representatives acting within the scope of their authority. The test of liability is the relation of the service to the injury, of the employment to the risk." 70 Where a group of employees had left their work and gathered around a fire to warm, a fellow employee voluntarily and inten- tionally threw a piece of split dynamite into the fire. Those around the fire were warned of the act and all ran away except the one injured and the dynamite exploded and injured him. It was held that since the employee was where he had a right to be the in- 70. Leonbruno v. Champlaln Silk Mills, 183 N. Y. S. 222, 6 W. C. L. J. 483, affd. in 128 N. E. 711, 7 W. C. L. J. 488. Twin Peaks Canning Co. v. Indus. Comm., Utah , (1921), 196 Pac. 853; Earlier N. Y. cases held to the contrary. Griffin v. A. Robertson & Son, App. DIv. , 162 N. Y. 8. 313, B 1 W. C. L. J. 1327. 649 < 286 WORKMEN'S COMPENSATION LAW jury resulted from a risk reasonably incident to the employ- ment. 71 Where a fellow employee directed a trick camera toward the claimant and a missile from the camera hit him in the eye and the sight of the eye was destroyed, it was held the injury did not arise out of the employment. 72 ''Where the nature of the employment is such as to expose a worker to a wrongful act by another worker, which may reason- ably be said to have been induced by the peculiar conditions of the employment, the manner in which it was carried on, and the appliances required, such an act may reasonably be said to arise out of the employment," even though it was a sportive act of a fellow employee. 75 Under the English Workmen's Compensation Act an employee who is injured while skylarking or while in the performance of some sportive act, cannot recover, since the injuries sustained are not regarded as arising out of and in the course of the employ- ment. 74 286. Added Risks to Peril. Petitioner, a day laborer, while on his way from his sleeping quarters provided by defendants, to begin work, was injured by his foot being crushed by a passing motor car, which, the evidence tended to establish, the petitioner unsuccessfully attempted to board. Affirming a judgment allow- ing compensation the court said: "In this case there is evidence that the claimant was injured at the site of the camp where he 71. Willis v. State Indus. Comm., 78 Okla. 216, 190 Pac. 92. 72. Fishering v. Pillsbury, 172 Cal. 690, 158 Pac. 215. 73. Socha v. Cudahy Packing Co., Neb. , (1921), 181 N. W. 706; overruling Pierce v. Boyer-Van Kuran Lbr. Co., 99 Neb. 321, 156 N. W. 509, L. R. A. 1916D, 970, in so far as it conflicts with the principles an- nounced in that case. 74. Wilson v. Laing, (1909), Ct. of Sess, 1230, 46 Scot. Law Rep. 843, 2 Scot. L. T. 18, 2 B. W. C. C. 118, 3 N. C. C. A. 283; Wrigley v. Nasmyth, Wilson & Co., (1913), W. C. & Ins. Rep. 145, 3 N. C. C. A. 283; see Fitz- gerald v. Clarke & Son, (1908), 2 K. B. 796, 1 B. W. C. C. 197, 99 Law Times Rep. 101, 77 L. J. K. B. 1018; Mullen v. D. Y. Stewart & Co., Ltd., (1908), Court of Session, 991, 45 Scot. Law Rep. 729, 1 B. W. C. C. 204; Shaw v. Wigan Coal & Iron Co., 3 B. W. C. C. 81, (1909); Cole v. Evans, Son, Lescher and Webb, Ltd., 4 B. W. C. C. 138 (1909). 650 ACCIDENT ARISING OUT OP COURSE OF EMPLOYMENT. 286 was employed, and while going to work from the quarters pro- vided by his employers, along a road made for camp purposes, and that the injury was inflicted by a motor truck used by his employers in conveying men to their places of work on the grounds in proc- ess of being cleared. Whether the accident occurring under ?iifh circumstances arose out of and in the course of the employment was a question of fact which the appellants were not entitled to have withdrawn from the jury on the theory that they had met the burden of proving the contrary." 75 A truck driver of a street flushing machine was injured when he fell from his truck. It appeared that at the time of the accident he was not driving himself, but was sitting on the seat operating levers which regulated the flow of water from the sprinkler. In an attempt to recover a wrench which was falling, he lost his balance and fell to the ground. On appeal it was contended that in allowing another to drive the truck a practise strictly against the rules of the Company, he had departed from his employment, and took upon himself an added risk not within his employment. Affirming the award the court said: "The employee of Tryon & Hrain did not abdicate either the place or character of his employ- ment. He gave up part of his work to another, it is true, as he permitted Schilling to run the truck, but it was strictly within the line of his duty to operate and care for the levers which controlled the flow of water from the tank of the truck to the street. The same may be said of his attempt to prevent the wrench from falling from the footboard. He was not outside the course of his employ- ment merely because he allowed a stranger to perform a part of his task while he was engaged in the performance of the remainder of it."" An employee who was working on a gravel car, remained in the car while it was being switched, and was thrown therefrom and tin- car ran over his body, inflicting injuries resulting in his death. 75. Beasman & Co. v. Butler, (1918). 133 Md. 382, 106 All. 409, 3 W. C. L. J. 478, 18 N. C. C. A. 1045. 76. Employer's Liab. Assur. Corp., Ltd. of London, Eng. v. Indus. Ace. Comm. of Cal., 179 Cal. 432, 177 Pac. 171, 17 N. C. C. A. 942. 3 \\ L. J. 407. 651 286 WORKMEN'S COMPENSATION LAW No instructions had ever been issued against riding in the cars while they were being switched. The court, holding that the de- ceased was where he had a right to be, and that the injury result- ing in his death arose out of and in the course of his employment, said: "An injury occurs in the course of the employment, within the meaning of the (Indiana) Workmen's Compensation Act, when it occurs within the period of the employment, at a place where the employee may reasonably be, and while he is reasonably ful- filling the duties of his employment, or is engaged in doing some- thing incidental to it." 77 Where an employee was killed while operating a metal road grader during an electric storm, it was held that deceased had not increased his natural hazard in so doing, for the metal road grader could not have had any perceptible influence upon the lightning. 78 Applicant relieved his bowels in a pail and took the pail to emp- ty it in a river and while doing this in the dark he was injured. Lavatories were provided for the use of the workmen, but a prac- tise had sprung up among the workman to use a pail as applicant had done, because time did not permit them to go to the lavatories, and further the lavatories were infested with parasites. The court of Appeals sustained a determination that the accident did not arise out of the employment, holding that the defendant had provided facilities for its workmen, and that applicant had in- curred the accident, and exposed himself to a risk which was no part of his employment. 79 An employee on a ship left his employment for the purpose of going tOv lunch, by an unusual route, undertaking to go down a scaffolding and ladder on the outside of the ship, a means not in- tended for his use in leaving the ship at any time, another safe way of leaving having been provided. He lost his hold, fell, and was killed. The court, holding that the accident did not arise out of 77. Granite Sand & Gravel Co. v. Wiloughby, Ind. App. , 123 N. E. 194, (1919), 4 W. C. L. J. 53, 18 N. C. C. A. 1045. 78. Wiggins v. Indus. Ace. Bd. of Mont., 54 Mont. 335, 170 Pac. 9, 17 N. C. C. A. 246. 79. Homer v. Wadsworth, Wimbledon & Epsom Gas Co., 120 L. T. R. 462, (1919), 18 N. C. C. A. 1046. 652 ACCIDENT ARISING OUT OF COURSE OP EMPLOYMENT. 286 his employment, said: "The findings of the commission to the effect that he might have been leaving his work for the purpose of getting more bolts -for use therein, or for the purpose of getting fresh air, seem to us to rest upon nothing but conjecture. There is no evidence in the record to sustain them. The fresh air, if lie needed it, could have been obtained in a perfectly safe place upon the deck of the vessel, and nearer to the point of his im- mediate employment than the scaffolding from which he fell, ami there seems to have been no bolts or other material necessary to his work to be obtained at the place toward which he was going. It is certain from this record, it seems to us, that he was, as has been said, simply abandoning his work before the hour when he was permitted to leave it. The award is annulled." 80 An employee was asphyxiated as the result of attempting to heat a compartment of a destroyer by burning coal and coke in a bogey, a practice known to the defendant and not objected to. The hatch was closed preventing the escape of fumes. The county court denied compensation, and on appeal the court held that, although this practice was not objected to by defendant, the tak- ing of the bogey aboard for purposes of heating was in no way necessary to his work, and deceased had added peril to his em- ployment, therefore the accident did not arise out of the employ- ment. 81 Where a government employee, whose duties required him to receive mail from incoming trains and transfer it to other trains, climbed aboard the car, while it was moving, as had been his custom theretofore, and in so doing slipped and fell, sustaining injuries, the court, in affirming an award, said: "We think the contention of counsel for appellant is too narrow. The mere fact that Behrend might have stood upon the platform and received the mail in that way as was done upon some occasions did not take him outside of the scope of his employment when he received 80. Moore Scott Iron Works v. Industrial Ace. Coxnm. of Cat., 36 Cal. App. 682 ,172 Pac. 1114, 16 N. C. C. A. 926. 81. Armistead v. number Graving Dock & Engineering Co., Ltd.. (1918), W. C. * Ins. Rep. 342, 18 N. C. C. A. 1046. 653 286 WORKMEN'S COMPENSATION LAW it in a different way and in a way which, doubtless, under the testimony was considered proper. ' ' 82 A steamship employee went ashore for provisions, and when re- turning to the ship attempted to board a tram car while in mo- tion, and sustained injuries. In reversing an award, the court held that the applicant had taken upon himself an added risk or peril not incident to his employment, and therefore, the accident did not arise out of the employment. 83 Where an employee attempted to catch a ride on a train which was going in his direction, and in doing so, fell under the train and was injured, the court, in holding that the accident did not arise out of the employment, said: "We think it clear in this case that catching a ride upon cars being switched in and out of the planing mill yard was not a usual and ordinary way for em- ployees of the planing mill to go to and from the place of their employment, and that there is no evidence to sustain a finding to that effect. * * * If it had been the intent of the legislature to make the employer liable for all injuries sustained by the em- ployee after he had completed his services and while he was leav- ing and still upon the premises of the employer, they would not have limited the employer's liability to injuries sustained while going to and from his employment in the ordinary and usual way." 84 Deceased went to a floor above the one on which she worked, having permission to do so, and when returning, the lift, upon which she and three others were riding, stuck, and in order to get out through a door, which opened automatically and which was open only about two feet, the occupants attempted to crawl out, and in doing so deceased was caught by the sudden starting of the lift and killed. On appeal the court held that the accident 82. White v. Indus. Comm. of Wis., 167 Wis. 483, 167 N. W. 816, 16 N. C. C. A. 927, 2 W. C. L. J. 428; Fox v. Rees & Kirby, Ltd., (1916), W. C. & Ins. Rep. 339, 15 N. C. C. A. 243. 83. Byrne v. Larrinaga Steamship Co., Ltd., (1918), W. C. & Ins. Rep. 319, 18 N. C. C. A. 1047; Lynch v. Neuman, 37 N. J. L. J. 1.7, 9 N. C. C. A. 661; In Re Alexander Coplin, 3rd A. R. U. S. C. C. 176. 84. Foster-Latimer Lbr. Co. v. Indus. Comm. of Wisconsin, 167 Wis. S37, 167 N. W. 453, 16 N. C. C. A. 928, 2 W. C. L. J. 199. ' 654 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 286 was not due to an added peril, but it was her duty to return to the work, and the fact that she did so improperly would not de- feat compensation. 85 An employee, who was expected to report to his employer be- fore 6 p. m., arrived at the station just as the last train for the day was about to leave, and in attempting to board the moving train was injured. In reversing an award the court said: "I am not satisfied that his employment did expose him to railway accidents more than ordinary people. Moreover, this was not a railway accident, and, even assuming that death due to a rail- way collision between Sheffield and Rotherham might have made the employers liable to pay compensation, wholly different con- siderations apply to the present case. He exposed himself to an additional risk by doing an unauthorized and illegal act. To say that the act was done in his master's interest, and not for his own pleasure, is not sufficient. There is not a particle of evidence to show what he was doing between 5 p. m., when the joiners left off work, and 5 :26 p. m., when the train started. To perform his duty towards his masters he ought to have started earlier to reach the station before 5:26. I think he was not employed to do this illegal act, either expressly or by implication, as incidental to his employment. The risk involved in attempting to get into a train in motion was not a risk reasonably incident to or 'arising out of his employment." 86 Where an employee, who attempted to fill a bottle at a bubble fountain for the purpose of drinking therefrom instead of drink- ing directly as was intended by the employer, and was injured 85. Gibbons v. British Dyes, Ltd., (1918), W. C. & Ins. Rep. 302, 18 N. C. C. A. 1047; Benson v. Bush, 104 Kan. 198, (1919), 178 Pac. 747, 3 W. C. L. J. 629. For facts in this case see page 808 post. 86. Jibb v. Chadwick, (1915), W. C. & Ins. Rep. 342, 15 N. C. C. A. 248; In Re Fumicillo, 219 Mass. 488, 107 N. E. 349, 15 N. C. C. A. 245; Hadwin v. Shepherd, (1915), W. C. & Ins. Rep. 503, 15 N. C. C. A. 245; Lancashire ft Yorkshire Ry. v. Highley, (1917), W. C. ft Ins. Rep. 179; Rev'g, (1916), W. C. & Ins. Rep. 244, 85 L. J. K. B. 1513, 15 N. C. C. A. 210; Russell v. Murray, Ltd., (1915), W. C. ft Ins. Rep. 532; *UforriB T. Rowbothram, (1915), W. C. ft Ins. Rep. 67, 15 N. C. C. A. 288; Whittall v. Stavely Iron ft Coal Co., Ltd., (1917), W. C. & Ins. Rep. 202, 15 N. C. C. A. 243. 655 287 WORKMEN'S COMPENSATION LAW when the bottle burst, the injury did not arise out of the employ- ment, but was due to an added peril imported by the servant him- self. 87 287. Employer's Willful Misconduct. Where a statute legally permits minors to be employed, but not in the particular work to which they are assigned at the time of the injury, it is inter- preted by the Wisconsin Court to mean that, under the Wisconsin Act, the statute does not restrict minors, permitted to be employed to the precise work for which they are employed, but permits them to be employed to do any kind of work. Therefore a minor legally permitted to work, but injured while doing work which he is pro- hibited by statute from being engaged to perform, was within the compensation act, and could not maintain an action at common law, even though the employer was liable to penal punishment for violation of the statute. 88 A girl under 16 years of age was employed in a factory, contrary to the penal statute in force in the state at the time, and was in- jured. In an action at common law for damages, it was contended that the proper remedy was under the compensation act. .The court held that the workmen's compensation act was not a bar to a common law action for damages, by an infant who was employed in violation of a penal statute, and that the further violation of a provision of the labor law requiring machinery of every descrip- tion to be properly guarded was evidence of the employer's negli- gence. 89 This rule applies even where the infant falsely represent- ed her age. To hold otherwise would be to open the door to whole- sale violation of the statute. The adoption of such a rule would be, in effect, to amend the statute by reading into it the word 'know- 87. Bolden's Case; In Re Fjsk Rubber Tire Co; In Re Traveler's Ins. Co., Mass. , (1920), 126 N. E. 668, 5 W. C. L. J. 861. 88. Foth v. Macomber & Whyte Rope Co., 161 Wis. 549, 11 N. C. C. A. 599, 154 N. W. 369; Boy'.e v. A. C. Cheney Piano Action Co., 184 N. Y. S. 374, (1920), 7 W. C. L. J. 93. 89. Wolff v. Fulton Bag and Cotton Mills, 185 App. D. 436, 173 N. Y. S. 75, 3 W. C. L. J. 354, 17 N. C. C. A. 616; Waterman Lumber Co., v. Beatty, - Tex. Civ. App. , 204 S. W. 448, 17 N. C. C. A. 614; Kruczkowski v. Polonia Pub. Co., 203 Mich. 213, 168 N. W. 932, 17 N. C. C. A. 6M; Mary- land Car Co. v. Indus. Comm., Gal. , 178 Pac. 858, 3 W. C. L. J. 563. 656 ACCIDENT ARISING OUT OP COURSE OF EMPLOYMENT. 287 ingly' or other equivalent expression. In some jurisdictions reasonable diligence on the part of the employer to ascertain tin- truth of a false statement will defeat the alternative liability. 00 A contrary ruling was made in an earlier New York Case where a minor was employed to operate an elevator, contrary to the pro- visions of the statute. It was held that the case came under the Compensation Act. 91 "The remedy of compensation afforded by the Workmen's Com- pensation Insurance and Safety Act is exclusive of all other statu- tory or common-law remedies, except in the one case provided by subdivision 'b' of section 12. By that subdivision it is provided that an injured employee, instead of presenting to the commission his claim for compensation as provided by the act, may, at his option, maintain in the courts an action at law against his em- ployer to recover damages where all the three following elements co-exist: (1) When the injury is caused by the employer's gross negligence or willful misconduct; (2) when the act or failure 'to act which is the cause of the injury is the personal act or failure to act on the part of the employer himself, or, if the employer be a corporation, on the part of an elective officer or officers thereof ; and (3) when the act or failure to act which is the cause of the injury indicates a willful disregard of the life, limb, or bodily safety of the employees. Without undertaking to state the evi- dence at length or to discuss it at large, let it suffice to say that unless it appears that defendent consciously violated some order of the commission or some particular safety provisions of the act itself, it was not guilty of 'gross' negligence, simply because it failed to house the gears with which plaintiff brought his arm in contact when attempting to replace the belt. The mere failure , to keep the gears in a housing, apart from any willful disregard of some order of the commission, or of some particular safety pro- visions of the act itself, does not evince such an utter disregard 90. Acklin Stamping Co., v. Kutz, 98 Oh. St. 61, 120 N. E. 229. 17 N. C. C. A. 607; Secklich v. Harris-Emery Co., 184 Iowa 1025, 169 N. W. 325, 17 N. C. C. A. 607, 3 W. C. L. J. 129; Taglinette v. Sidney Worsted Co., R. I. , 105 Atl. 641, 3 W. C. L. J. 662. See page 79 ante. 91. Robilotto v. Bartholdi Realty Co., 104 Misc. 419, 172 N. Y. Supp. 328, 17 N. C. C. A. 616. 657 W. C. 42 287 WORKMEN'S COMPENSATION LAW of consequences as to suggest some degree of intent to cause the injury, or to justify the belief that there was a conscious indiffer- ence to consequences. 'Willful misconduct' means something dif- ferent from and more than negligence, however gross. The term 'serious and willful misconduct' is described by the Supreme Judi- cial Court of Massachusetts as being something 'much more than mere negligence, or even gross or culpable negligence,' and as in- volving 'conduct of a quasi criminal nature, the intentional doing of something either with the knowledge that it is likely to result in serious injury or with a wanton and reckless disregard of its probable consequences.' In re Burns, 218 Mass. 8, 105 N. E. 601, Ann. Gas. 1916A, 787. The mere failure to perform a statutory duty is not, alone, willful misconduct. It amounts only to simple negligence. To constitute 'willful misconduct' there must be actual knowledge, or that which in the law is esteemed to be the equiva- lent of actual knowledge, of the peril to be apprehended from the failure to act, coupled with a conscious failure to act to the end of averting injury. Smith v. Central, etc. Ry. Co., 165 Ala. 407, 51 South. 792. Measured by the foregoing standard, it cannot be said that defendant was guilty of 'willful' misconduct merely be- cause it failed to house the gears, unless the housing of the gears was made a duty by some general or special order of the Industrial Accident Commission, or by the Act itself, and some one of the defendant's elective officers, with a willful disregard of the life, limb, or bodily safety of defendant's employees, having actual knowledge of the peril incident to the unhoused gears or having what in law is equivalent to such actual knowledge, consciously failed to house the gears, so as to avert injury." 92 Under the Illinois "Workmen's Compensation Act, the right of an employee to maintain an action for an injury depends not only upon his proof that it was caused by the corporation employer's intentional omission to properly guard gearings, as required by the factory act, but upon the allegation and proof, by the em- 92. Helme v. Western Milling Co. Cal. App. , (1919), 185 Pac. 510, 5 W. C. L. J. 143; Adams v. Iten Biscuit Co., Okla. , 162 Pac. 938, B 1 W. C. L. J. 1480. But for a contrary holding, see, Clemens Horst Co. v. Indus. Accident Comm., Cal. , 193 Pac. 105, 7 W. C. L. J. 3. 658 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 287 ployee, that such omission was committed by the employer's elec- tive officer, in which case it would come under the exception to the act. 98 Under the Massachusetts Workmen's Compensation Act, in proceedings for the death of an employee operating an elevator, it was found by the board that the conduct of the employers, in permitting the elevator to be maintained and operated in the con- dition in which it was at the time of the accident, was not serious and willful misconduct, entitling the employee's representative to double compensation. This was held to be supported by the evi- dence, for, "Serious and willful misconduct" of a subscriber, as used in the act, involving conduct of a quasi criminal nature, the intentional doing of something either with the knowledge that it is likely to result in serious injury, or with a wanton, and reck- less disregard of its probable consequences, cannot be supported by a finding that the employer was grossly negligent. 04 Under the Ohio Act, an order made by the commission to em- ployers generally, or to a particular employer with reference to safe place of employment, is a lawful and reasonable require- ment, and a failure to comply with the provisions of such order, or with a statute or municipal ordinance which prescribes meth- ods to be used to protect the lives, health, etc., of employees, leaves the employer liable to the employee injured by reason of such failure, independently of the compensation act. "Lawful requirement'' does not include a general course of conduct, or those duties and obligations of care and caution, which rest upon employers, and all other members of the community, for the pro- tection of life, health and safety. 95 Under the Minnesota Act, the employment of an apprentice without a license, in the operation of an elevator, was held not 93. Von Boeckman v. Corn Products Refln. Co., 274 111. 605, 113 N. E. 902. 94. Heckles Case, 230 Mass. 272, 119 N. E. 653, 2 W. C. L. J. 278, 17 N. C. C. A. 434; Riley v. Standard Ace. Ins. Co., Mass. ,116 N. E. 259, A. 1 W. C. L. J. 858. 95. American Wooden Ware Mfg. Co. v. Schorling, 96 Ohio 305, 117 N. E. 366, 1 W. C. L. J. 106. 659 287 WORKMEN'S COMPENSATION LAW to be violative of the statute, where the evidence did not show that it was intended that he should operate the elevator alone. 96 Under the Oregon Act, in seeking* a recovery in addition to payments from the accident fund, as provided in cases of injury resulting from "deliberate intention" of the employer, it must be shown that the injury resulted from a determination to injure the employee, and negligence, no matter how gross, of itself will not be sufficient to justify the recovery of the additional amount. 97 "The plaintiff and other employees of the defendant company, together with a man named Fisher, the foreman, having charge of the work, were engaged in erecting a large sheet-iron tank, to be used for the storage of chemicals. This tank was composed of large iron plates, which were lifted in position by means of a derrick and boom, erected upon a scaffolding placed within this large metal tank. Shortly before the accident occurred, the at- tention of Fisher, the foreman, was several times directed to the fact that the mast of the derrick was leaning two feet, that one of the guy lines was weak, and several of the men said to him that the mast should be straightened and the guy lines should be tightened and replaced. Fisher refused to do this, and, notwith- standing the fact that his attention was called to the defects of this derrick several times, and that a strain of a ton load was being placed upon the guy lines and the derrick, the foreman, with an oath, directed McWeeny and the other men to proceed with the lifting of the heavy iron plate. They did so, and while engaged in this work the scaffolding and derrick collapsed, in- juring McWeeny and several other of the men. The evidence tends to show that the foreman at the time of this unfortunate occurrence was himself in a place which was of no danger to him. From an examination of these sections (20-1 and 21-2) it is apparent that, where an employer had complied with the pro- visions of this act in paying the premiums into the funds and in posting the necessary notices', the employee in case of injury, or his representative in case of death, can not recover for negligence 96. Pettee v. Noyes, 133 Minn. 109, 157 N. W. 995. 97. Jenkins v. Carman Mfg. Co. ; 79 Ore. 448, 155 Pac. 703, 11 N. C. 0. A. 547. 660 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 287 or the want of ordinary care, but if the injury results from a will- ful act, or from the violation of a statute or ordinance or order of any duly authorized officer, which statute, ordinance, or order was enacted for the protection of the life or safety of the em- ployee, then in such event the employee can either take the bene- fits provided under this act or sue in court to recover. The de- fendant contends that the willful act in contemplation of this statute must have been an act done intentionally with a purpose to inflict injury. The court charged at the trial, in part; 'To constitute a willful act in this case, you must find that the action of Fisher was such an action as to evince an utter disregard of consequences so as to inflict the injuries complained of. In other words, the negligent action was such recklessness reaching in de- gree to utter disregard of consequences which might probably follow. In the action of Fisher in ordering McWeeny to work on this scaffold and in connection with this derrick was done under such circumstances as to evince an utter disregard for the safety of McWeeny and the other employees working there in connec- tion with him, then that action was a willful act.' If the con- tention urged by defendant that a willful act had to be an act coupled with an intention to injure the employee were the correct construction of those terms of the statute, then the employers of laborers, so long as they themselves or their employees did not criminally injure their employees, could incur no liability no mat- ter how recklessly or carelessly they conducted their business without any regard to the safety of those employed. Extreme cases of this sort will seldom arise. I can not believe that the legis- lature intended that the term 'willful act' should be narrowed down to mean a deliberate intent to do bodily injury and nothing else. This compensation act was passed for a purpose: its pri- mary purpose was to protect the men engaged in the various oc- cupations in Ohio. In my opinion, the case was fairly tried, and the issues fairly submitted, and the motion for a new trial will be overruled." 98 98. McWeeny v. Standard Boiler Plate Co., 210 Fed. 507, 4 N. C'. C. A. 919, Aff. 218 Fed. 361, 134 C. C. A. 169. 661 287 WORKMEN'S COMPENSATION LAW Failure to grind a circular saw, as required by the laws of 1909, page 202, which resulted in injury to employee, was held to be an "intentional omission," within the 111. Act. of 1911." An employee was caught under the wheels of a 26-ton crane, and injured as the result of the crane not being guarded as required by statute. He sought to recover 15 per cent extra compensation, in accordance with a provision of the act that, in case the employ- er fails to comply with the provisions of any statute of the state or order of the industrial commission, and injury results therefrom, compensation will be increased 15 per cent. The front wheels of the trucks were not guarded. The employer sought to defeat the claim on the ground that, even though the front wheels had been guarded the employee would have been crushed against a vertical post 4 or 5 feet distant or else would have been thrown to the ground a distance of 20 feet and probably killed. In affirming a judgment allowing the additional compensation, the court, said: "An injury is caused by the failure of an employer to guard a machine where it appears as a fact that the particular injury from which the employee suffered would not have been sustained by the employee if the machine had been guarded as required by law, and the employer is liable therefor unless it is caused by a want of ordinary care on the part of the employee which is wilful. The chain of physical causation is com- plete, and whether or not the failure to guard is the proximate cause of the injury in the sense in which that term is used in the law of negligence is immaterial." * A finding that the employer was not guilty of such serious and wilful misconduct as would entitle the injured employee to double compensation, when supported by the evidence, is conclusive where an employee sustained a mortal injury consisting of a frac- ture of the spine with severance of the spinal cord, due to the col- lapse of a staging which he and other employees were taking down. 2 99. Forrest v. Roper Furniture Co., 267 111. 331, 108 N. B. 328. 1. Manitowoc Boiler Works v. Indus. Comm., 165 Wis. 592, 163 N. W. 172, 17 N. C. C. A. 436. 2. In re Burns, 218 Mass. 8, 105 N. E. 610, 5 N. C. C. A. 635. 662 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 287 "The negligence of the subscriber in furnishing for the use of its employees an elevator so thoroughly out of repair as to be un- safe and in permitting the use of the elevator which the board could find the superintendent considered was in a 'dangerous condition,' while abundantly shown by the evidence, * * * does not rise to the degree of serious and wilful misconduct of a subscriber or of any person regularly intrusted with and exercis- ing the powers of superintendence, for which under section 3, as amended, the injured employee shall be awarded double com- pensation.* * *" 3 When an employee is injured as the result of an act of wil- ful misconduct on the part of his employer, and institutes an ac- tion at law to recover damages, as provided for by the provisions of the California Act in such cases and the court sustained a de- murrer to the plaintiff's petition and judgment was rendered against him, this does not amount to an election of remedies, a determination of which would bar further proceedings under the compensation act. The judgment only determined that the allega- tions of the complaint failed to state a case that would permit the claimant to institute a cause of action other than a proceeding under the compensation act and therefore the proper tribunal for the adjudication of his claim was the Industrial Accident Commission. 4 Where an employer is assessed treble damages because of hiring a minor of permit age, without requiring a permit, he cannot avail himself of the defense that the minor willfully misrepre- sented his age. 5 In another California case the court said: "Serious miscon- duct" of an employer must therefore be taken to mean conduct which the employer either knew or ought to have known, if he had turned his head to the matter, to be conduct likely to jeop- ardize the safety of his employees. It seems clear that according 3. In re Riley, 227 Mass. 55, 116 N. E. 259, 17 N. C. C. A. 434. 4. San Francisco Stevedoring Co. v. Pillsbury, 170 Cal. 321, 9 N. C. C. A. 37, 149 Pac. 586. 5. Mueller & Son Co. v. Oothard, Wis. , (1920), 179 N. W. 576. 6 W. C. L. J. 730. 663 288 WORKMEN'S COMPENSATION LAW to this test, the commission was amply warranted in finding that the maintenance of the improperly protected shafting, immedi- ately over, and in close proximity to the conveyor belt, was such serious misconduct." 6 Safety orders of an industrial commission are not effective un- til served upon the employer. Such safety orders are not con- clusively presumed to be reasonable. And it is incumbent upon a servant, suing for personal injuries caused by gross negligence of the employer, to prove that the injuries resulted from conduct of the employer which would amount to gross negligence. A fail- ure to comply with a safety rule of which he had no knowledge would not, of itself sustain claimant's contention. 7 Under tbe Kentucky act the failure of an employer to furnish safety devices required by statute does not entitle a guardian or the injured minor employee to sue at common law for damages for this election applies only where the minor is employed in willful and known violation of law, and such failure does not constitute employment in violation of law. 8 288. Injuries Sustained While Performing Acts for the Per- sonal Convenience or Pleasure of the Employee. A traveling saleman's duties and places to call during a particular week vve**e definitely determined by his employer, and he was furnished with an automobile for this purpose. He departed from the schedule mapped out for him and visited other places during the week in order that he would be able to attend memorial services to be held in this latter locality. While visiting these places he was killed in an automobile accident. The court held that in deviating from the route mapped out, in order that he might gratify his own personal ambitions he took himself out of the course of the employment, so that the accident did not arise out of the employment. 9 6. E. Clemens Horst Co. v. Indus. A. C. of Calif., Gal. , 193 Pac. 105, 7 W. C. L. J. 3. 7. Schmidt v. Pursell, Cal. App. , (1920) 190 Pac. 846, 6 W. C. L,. J. 425. 8. Freys Guardian v. Gamble Bros., Ky. App., (1920), 221 S. W. 870, 6 W. C. L. J. 171. 9. State ex rel. Niessen v. District Court of Ramsey Co., 142 Minn. 3P.5, 172 N. W. 133, (1919), 18 N. C. C. A. 1041, 4 W. C. L. J. 109. 664 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 288 Where a street car conductor stopped his car in front of his home to order his lunch, and was killed when so doing by being struck by another car, it was held that such an act on the part of the conductor was incidental to his employment, and that in- juries received while so doing arose out of and in the course of his employment. 10 A garage employee whose duty it was to wash automobiles, was called by his foreman to look at an automatic pistol that had been taken from an automobile and placed in a desk in the office some- time prior. As the foreman was passing the pistol over to deceased it was accidentally discharged and deceased was killed. In an action for compensation the court held that since the men were merely gratifying their curiosity concerning the pistol and were do- ing nothing to further the interests of their employer, the accident did not arise out of the employment. The fact that the foreman had authority over and control of deceased was, under the cimim- stances, immaterial." Claimant's employer owned two buildings, T. & M. Claimants duties were in T. building, and on a Sunday when he was on duty as a watchman at T. building, he went over to M. building, and there fell into an elevator shaft. The board found that claimant's presence in M. building was purely voluntary and aside from any duties connected with his employment, and there- fore the accident did not arise out of the employment. This finding was affirmed on appeal." Where a boy, when returning from a toilet, left the usual path- way, and went a few feet to ask the time from a fellow employee, and was injured by a bale of cotton, which was being rolled from a cart, it was held that such a departure was not one that would disentitle him to compensation for the injury sustained. 18 10. Rainford v. Chicago City Ry. Co., 281 111. 427, 124 N. E. 643, 5 W. C. L. J. 60. 11. Culhane v. Economical Garage Co., 188 N. Y. App. D. 1, 176 N. Y. 8. 508, (1919), 18 N. C. C. A. 1042, 4 W. C. L. J. 276 12. Borck v. Simon J. Murphy Co., 205 Mich. 472. 171 N. \V. 470, (1919), 18 N. C. C. A. 1042. 13. Corlett v. Lancashire & N. Ry. Co., 120 L. T. R. 236, 18 N. C. C. A. 1043 ; Conyea v. Canadian Northern Ry. Co., 5 Western Wkly. Rep. 607, 12 N. C. C. A. 897. 665 288 WORKMEN'S COMPENSATION LAW An employee was injured, and his hand was bandaged and turpentine poured on the bandage by an agent of the employer to alleviate the pain. In lighting a cigarette the bandage became ignited and his hand severely burned. The court of Appeals af- firmed an award which held that the accident arose out of the employment, because such acts as are necessary to the life, com- fort and convenience of a workman while at work, though personal to himself, and not acts of service, were incidental to the service. Continuing the Court said: "Are we to place the use of tobacco in this list of ministrations to the comfort of the employed? Is its use necessarily contemplated in the course of such an employ- ment as that in which Duarte was engaged? The petitioner, in answering these questions in the negative, places great dependence in the argument that tobacco is used to appease a selfcreated appe- tite and not a natural appetite. The argument does not appeal to us. In an endeavor to determine what indulgence of human beings are responsive to the demands of natural, what to unnatural, appetites, we should be carried to depths of biological and physiological re- search. Such labor is not necessary. We have the tobacco habit with us, and must deal with it as it is. It will not do to say that mankind would be better for a lack of the weed, even if that statement be true. Tobacco is universally recognized to be a solace to him who 'uses it, and it may be that such a one, unless he finally shakes off the habit, cannot perform the labors of his life as well without it as with it. In the present war one of the constantly recurring calls upon the public of the world is for tobacco for the comfort of the participants in the conflict. Nor are the books with- out their cases to the substantial effect that the employer must expect the employed to resort to the use of tobacco as a necessary adjunct to the discharge of his employment." The supreme court adopted the opinion of the court of Appeals, "as a correct state- ment of the facts and an adequate treatment of the law arising on those facts." 14 14. Whiting Mead Commercial Co. v. Indus. Ace. Comm., 178 Cal. 505, 173 Pac. 1105, 17 N. C. C. A. 958, 2 W. C. L. J. 746; Dzikowska v. Superior Steel Co., 259 Pa. 576, 103 Atl. 351, 16 N. C. C. A. 914, 2 Vv. 0. L. J. 131; Chuldzinski v. Standard Oil Co. of N. Y., 176 App. Div. 666 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 288 An employee was killed as the result of an explosion occurring from dynamite in rubbish, while the employee was watching a scavenger unload the rubbish. The accident occurred while the men, (including deceased) were waiting to begin work at a pier. The court held that this risk was in no way incidental to the employ- ment. The men were gratifying their own curiosity, and therefore the accident did notarise out of the employment. 15 Claimant was injured when she slipped and fell on her way back upstairs, after setting a bottle of tea on the boiler in the liaxcmcnt upon arrival in the morning. Affirming an award in her favor the court said: "If claimant, during working hours, had suspended work to go to a cloakroom to change her clothes, to the washroom to wash up or to use the toilet, and while in such room had been injured, she could, under the authorities, have had an award. * * * In order to be acting in the course of her employ- ment, therefore, it was not necessary that she should have been actually engaged in the work thereof. It was sufficient if she was performing some act upon the premises of her employer which, though directly beneficial to herself, was an ordinary incident of a day of employment." 16 An errand boy was injured and later died as the result of an accident, occurring while he was on an errand. The evidence was conflicting as to whether deceased attempted to board the moving train in connection with which the accident occurred, for his own personal convenience or that he was otherwise injured. The board found that the accident arose out of the employment and the court, on appeal, held that there was sufficient evidence to justify such a finding. 17 87, 162 N. Y. S. 225, 17 N. C. C. A. 267; Rich v. Iowa Portland Cement Co., Iowa , 170 N. W. 532, (1919), 18 N. C. C. A. 1032, 3 W. C. L. J. 463. 15. Buvia v. Oscar Daniels Co., 203 Mich. 73, 168 N. W. 1009, 17 N. C. C. A. 960. 16. Etherton v. Johnstown Knitting Mills Co., 184 App. Div. 820, 172 N. Y. S. 724, 17 N. C. C. A. 961, 3 W. C. L. J. 361. 17. Chicago Packing Co. v Indus. Bd. of 111., 282 111. 497, 118 N. fc. 727, 16 N. C. C. A. 916. 1 W. C. L. J. 749. 667 288 WORKMEN'S COMPENSATION LAW street employee, during the noon hour, engaged in conver- sation with an engineer of a steam roller and climbed upon the en- gine to get out of the wet. The engineer started the roller to blow off steam. Upon reaching the crest of a hill he lost control of the machine, and it started to coast downhill, and crashed into a house, crushing deceased to death. The court held that the injury nei- ther arose out of nor in the course of the employment. 18 An employee was injured by being crushed between two cars. The evidence was conflicting as to whether claimant was, during the intermission between the loading of cars, picking up briquet- tes, which was part of his duties, or warming himself from the heat emanating from the hot briquettes in a ear next to which he had been lying. The commission awarded compensation on the theory that it was immaterial which conclusion was reached, say- ing: "The man's duties involved periods of leisure, during which apparently he was expected to kill time as best he might, with no specific direction as to what he should do or where he should wait ; the night was cold, and he put off dumping the car until he could warm himself from its heated contents ; to say that in so doing he had left the master's employment, was pursuing his own private purposes, and doing something foreign to the work he was employ- ed to do, is illogical to a degree. To protect himself from undue and unnecessary exposure, to the cold was a duty he owed his mas- ter as well as himself, and it does not follow that he left his mas- te^'s employment because he negligently allowed the second car to run into him while he was warming himself. 19 Where an employee was killed while using a lift, which was in- tended to be used only for goods, in going to an upper floor, the court held that the accident did not arise out of the employment. 20 18. In re O'Toole, 229 Mass. 165, 118 N. E. 303, 16 N. C. C. A. 916, 1 W. C. L. J. 620; Parsons v. Somerset, etc., (1916), W. C. & Ins. Rep. 254, 15 N. C. C. A. 264. 19. Northwestern Iron Co. v. Indus. Comm., 160 Wis. 633, 152 N. W. 416, 15 N. C. C. A. 260; Richards v. Indianapolis Abattoir Co., 92 Conn. 272, 102 Atl. 604, 1 W. C. L. J. 311; Malandrino v. S. N. Y. Power & Ry. Corp., App. Div. , (1920), 180 N. Y. S. 735, 5 W. C. L. J. 725; In re Sadie M. Miller, 3rd A. R. U. S. C. C. 171. 20. Palmer v. Harrods, Ltd. (1916), W. C. & Ins. Rep. 213, 15 N. C. C. A. 261. 668 ACCIDENT ARISING OUT OP COURSE OK EMPLOYMENT. 288 In order to prevent employees from opening windows which were behind tubs of dye the employer nailed the windows down. An employee attempted to open the windows to obtain fresh air, and was injured when the chisel which he was using broke anl struck him in the eye. The court denied compensation, holding that an employee, though under the protection of the act when doing something for his personal convenience where the act was not strictly forbidden, is not protected when violating enforced rules in order that he might convenience himself. Therefore tlie accident in this case did not arise out of the employment. 21 An employee engaged to watch premises, fell asleep and lost his balance, thereby falling down a chute, sustaining injuries which caused his death. In reversing an award, the court held that de- ceased was employed to watch the premises, and when he procur- ed a chair and fell asleep he abandoned the very work for which he was hired, and therefore the accident did not arise out of the employment. 22 Where an employee was injured while using a planer, whi'jli was not within his line of duty, and at the time he was making something for himself, the court held that the accident did not arise out of the employment. 23 An employee, who was not feeling well, was advised by ail em- ployee of the owner of the place where he was installing machinery to take some epsom salts, and told him where it was. By mistake li<- took barium chloride and died. In reversing an award, which was affirmed by the Appellate Division, the court said: "Assum- ing that this occurrence constituted an accident under the act and that it arose in the course of decedent's employment, we are en- tirely unable to see that it 'arose out of his employment.' Tbe findings do not indicate that his illness in any manner resulted 21. In re Borin, 227 Mass. 252, 116 N. E. 817, 15 N. C. C. A. 261. 22. Gifford v. Patterson, Inc., 222 N. Y. 4, 117 N. E. 946, Rev's 165 N. Y. S. 1043, 15 N. C. C. A. 262, 1 W. C. L. J. 434; Colucci v. Edison Port- land Cement Co., N. J. , (1920), 111 All. 4, 6 W. C. L. J. 550; Wela Paper Co. v. Indus Comm., -- 111. , (1920), 127 N. E. 732, 6. W. C. L. J. 307. 23. Anderson v. Armstrong & Co., Ltd., (1917), W. .C. & Ins. Rep. Tl, 15 N. C. C. A. 263. 669 288 WORKMEN'S COMPENSATION LAWS. from his employment, or even if it did, that his employer as sm incident to condition of such employment had undertaken to supply medical attendance or medicines in ministering to such an illness as this was; it not being of an emergent character. The employer had done nothing to authorize or induce the decedent to take the poison on the supposition that it was something which he needed or which would be beneficial to him. Decedent's illness and his attempt to minister thereto were not ordinary or natural incidents to his employment. On the contrary, it is found that decedent's mistake was the result of his voluntary action, induced by the advice of one who was not even in the employment of bis employer, but legally was an utter stranger thereto. It was an employee of the company for which decedent 's employer was work ing who persuaded or advised him to take the medicine, and who guided him to the place where, instead of taking such medicine, he obtained the poison which caused his death. It seems to us that the case is not different than it would have been if the decedeat, voluntarily acting upon the advice of a stranger, had visited a physician who injured him by malpractice, or had sought a dis- penser of prescriptions who gave him poison instead of helpful medicine, and certainly it could not be said that such an occurence would have arisen out of his employment within the meaning of the statute." 24 Where an employee was injured by being caught in a fan when he was placing a bottle, containing food, for the purpose of heat- ing it, in a pipe, through an opening other than the one the em- ployer had assented to, it was held that the accident did not arise out of the employment. 25 <- Where an employee was permitted to use a horse and cart of his employers to bring his own trunk from the depot, and the horse ran away and injured the employee, it was held that the employee was using the horse as a mere licensee and was not do- 24. O'Neil v. Carley Heater Co., 218 N. Y. 414, L. R. A. 1917A, 349, 113 N. E. 406, 15 N. C. C. A. 263, Rev'g 173 N. Y. App. Div. 922, 157 N. Y, Supp. 1138. 25. Mann v. Glastonbury Knitting Co., 90 Conn. 116, 96 Atl. 368, 12 N. C. C. A. 891. 670 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 288 ing anything in the furtherance of his master's employment, therefore the accident did not arise out of and in the course of the employment. 26 A laborer in a sawmill was told several times to throw fuel into a furnace on the side away from a revolving saw. He chose to act contrary to instructions and was injured by coming in contact with the saw. It was held that his injury did not arise out of the employment. The court said: "There was a safe place to work and a dangerous place to work at the fuel pile. The respondent, as was his lawful right, commanded the petitioner to work on the safe side of the fuel pile in throwing the wood to the furnace. That then became the sphere of the respondent's employment of the petitioner, and to remove any uncertainty in fixing the sphere of employment between the safe and the unsafe side of the fuel heap, the respondent twice ordered the petitioner to keep away from the vicinity of the saw. When the petitioner went, against the respondent's orders, in close proximity to the saw to throw over fuel to the furnace, it was a new or added peril to which the petitioner, by his own conduct, exposed himself; a peril which his contract of service neither directly nor indirectly involved or obliged him to encounter. It did not belong to, nor was it con- nected with what the petitioner had to do in fulfilling his con- tract of service on the safe side of the fuel pile."" Where a workman, employed to do work by hand, tried to rig up a time saving device by throwing a rope over a revolving shaft, and was injured in so doing, it was held that the accident did not arise out of and in the course of the employment. 28 Where a servant drank a poisonous fluid while at work, be- lieving that he was drinking water, the injuries received were held to have arisen out of and in the course of the employment. 29 26. Whitfield v. Lambert, (1915), W. C. & Ins. Rep. 48, 8 B. W. C. C. 91, 12 N. C. C. A. 905. 27. Schelf v. Kishpaugh, 37 N. J. L. J. 173, 9 N. C. C. A. 652. ,28. Plumb v. Cobden Flour Mills Co., 6 B. W. C. C. 245, 9 N. C. C. A. 655. 29. Archibald v. Ott, 77 W. Va. 448, 87 S. B. 790; In re Cleo Harold Kldwell, 3rd A. R. U. S. C. C. 178; In re Joseph Shinebeck, 2nd A. R. U. S. C. C. 275. 671 288 WORKMEN'S COMPENSATION LAW A railroad employee sought shelter tinder a box car during a violent rain storm. This was the only available shelter. An en- gine moved the car and both of claimant's legs were cut off. It had always been customary for employees to seek shelter during a storm and their time went on while doing so. It was held that claimant's act was a necessary incident of his employment, and the mere fact that he was guilty of negligence in going beneath the car did not take him outside of his employment. 30 Where an employee was injured while answering a telephone call, it being shown that the employee's duties included answer- ing 'phone calls, it was immaterial that the call happened to be for himself. The accident arose out of and in the course of the employment. 33 An employee was called from his work to answer a telephone call. In going to the 'phone booth he was injured. Later it de- veloped that the call was not for the employee. The court held that the accident arose out of and in the course of his employ- ment, because when called by his superior officer he might rea- sonably regard it as a command, and under such circumstances, the risk of going to the telephone was not merely an incident to his employment, but was an inherent and component element of it. The court further said: "When a workman in a factory goes to a telephone which is maintained in the factory to answer a call, from whatever source, it will be presumed that he is per- forming an act necessary to his comfort and convenience, and that such act is an incident of his employment, where the em- ployer has established no rule to the contrary." 32 Where a cook overexerted himself while removing his effects from a sinking ship, and died of heart disease, hastened by the overexertion, the accident was one arising out of the employment, 30. Moore v. Lehigh Valley R. Co., 169 App. Div. 177, 154 N. Y. S. 620 ; Piscente v. Delaware, Lackawanna & Western R. Co., 7 N. Y. St. D. R. 460; Franchi v. Delaware, L. & W. Ry., 6 N. Y. S. D. R. 399; Gargano v. Delaware, L. & W. Ry. Co., 8 N. Y. S. D. R. 45; In r Win. R. Kelley, 3rd A. R. U. S. C. C. 176. 31. In re Cox, 225 Mass. 220, 114 N. E. 281, 15 N. C. C. A. 271. 32. Holland-St. Louis Sugar Co. v. Shraluka, 64 Ind. App. , 116 N. B. 330, 15 N. C. C. A. 272. 672 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 288 since any act which would have been reasonable for any one to do, when leaving a sinking ship, which was his temporary home, was within the scope of his employment. 33 AVhere a chauffeur, after reaching a destination to which he was directed by his employer to take a passenger, found that the train was late, and continued to drive around the town for the personal convenience of himself, and the passenger, and while doing so was murdered by the passenger, who suddenly became insane, it was held that the accident did not arise out of and in the course of the employment. 34 "Where an employee is injured from drinking water which is furnished by his employer, the injury is due to an accident aris- ing out of and in the course of the employment. 3 " Where a girl was injured while partaking of refreshments handed to her by her employer while she was standing on &i\ elevated platform near the machine she was operating, it was held that the accident arose out of and in the course of the em- ployment. 86 "The employee was at work in a car on a spur track, 8 feet away from the main line of the Boston & Albany Railroad. This spur track was about 4 inches below the main line. For some un- explained reason, he left the car and went upon one of the main tracks of the railroad, where he was struck by an engine and killed. There was no evidence showing it to be any part of his employment to cross the main track, nor was there any evidence tending to show why he was there. The plaintiff is not entitled to recover under this statute unless the injury arose out of and in the course of her husband's employment and, to establish these facts, the burden of proof rests upon her. It is not enough 33. In re Brightman, 220 Mass. 17, 107 N. E. 527, L. R. A. 1916A. 321, 8 N. C. C. A. 102. 34. Central Garage v. Industrial Comm, 286 111. 291, 121 N. E. 587. 35. Vennen v. New Dells Lbr. Co.. 161 Wls. 370, 154 N. W. 640, 10 N. C. C. A. 729. L. R. A. 1916A, 273; McKinnon v. Hutchison. (1915). W. C. 6 Ins. Rep. 386. 2 Sc. L. T. 22, 10 N. C. C. A. 732; In re Fred J. Shurz, 2nd. A. R. U. S. C. C. 100. 36. Carinduff v. Gilmore. (1914), W. C. & Ins. Rep. 247, 48 Ir. L. T. 137, 7 B. W. C. C. 981, 10 N. C. C. A. 348. 673 W. C. 43 288 WORKMEN'S COMPENSATION LAW to show a state of facts which is equally consistent with no right to compensation as it is with such right ; there being no evidence to show that the fatality was caused by her husband's employ- ment or that it occurred while he was engaged therein, she can- not recover." 37 Where a helper on a truck was killed when returning from a town where the driver had gone to dissipate after completing his work at the place where his duties brought him, his injuries arose out of the employment, since he was not obliged to abandon the truck and seek other conveyance home simply because the one under whose direction he was working saw fit to go else- where and not return immediately upon the completion of the work they were sent to perform. 38 Workman injured, while doing what is essential to sanitary conditions or to the comfort and welfare of the employee, when preparing to go home, is within the protection of the act. 39 It has been held that where it was the established custom for employees to go to the windows for fresh air, an employee killed while so doing, was killed by an accident arising out of and in the course of the empolyment. 40 An employee, who was injured while in a wash room for a purpose personal and necessary to himself, was injured in the course of his employment. 41 Where an employee for his own convenience kept a truck, which he was using, several miles distant from the place he was supposed to keep it, and was injured when going to his place of 37. In re Savage, 222 Mass. 205, 110 N. E. 283, 12 N. C. C. A. 894; Chinock v. Potter & Clark, Ltd., (1916), W. C. & Ins. Rep. 55, 12 N. C. C. A. 896. In re J. J. Johnson, 3rd. A. R. U. S. C. C. 179; In re Maxwell Glaser, 3rd. A. R. U. S. C. C. 179. 38. Hartford Ace. & Indem. Co. v. Durham, Tex. Civ. App. , (1920), 222. S. W. 275, 6 W. C. L. J. 395. 39. American Smelting & Ref. Co. v. Cassil, Neb. , (1920), 175 N. W. 1021, 5 W. C. L. J. 552. 40. Sparks Milling Co. v. Indus. Comm., 111. , (1920), 127 N. E. 737, 6 W. C. L. J. 299. 41. Steel Sales Corp. v, Indus. Comm., 111. , (1920), 127 N. E. 698, 6 W. C. L. J. 303. 674 ACCIDENT ARISING OUT OF COURSE OP EMPLOYMENT. 289 employment over a different road than was contemplated in the contract of employment, his injuries did not arise out of his em- ployment. 42 It has been held that injuries to an employee, while using an elevator to leave the place of her employment, during the noon hour for the purpose of obtaining theatre tickets, arose out of and in the course of the employment. The elevator being the one regularly used to reach the department in which the employee was employed. 43 A light-house keeper, who was allowed to raise some cattle and provisions on the government reservation for his own convenience, was not injured in the course of his employment when gored by his own bull while doing chores. 44 It has been held under the Federal Act that injuries sustained by a ranger while taking a bath in a creek after a long trip and when he was compelled to camp out in the performance of his duties, was a compensable injury arising out of his employment. 45 Where a sick employee left the office to go home and fell over 68 The subject of aggravation of a pre-existing diseased condition by an accident arising out of and in the course of employment has been treated at length in connection with "Accidents" Chap- ter V, 138, ante. 291. Aggravation of an Injury by Subsequently Intervening Cause. Where a Workman suffered an injury in the course of employment, which so impoverished his system as to leave him susceptible to tuberculosis, of which there was not tlje slightest indication before the injury, a finding that the death was proxi- mately caused by an accident arising out of the employment was affirmed on appeal, the court saying: "Where a workman receives personal injury from an accident arising out of and in the course of his employment, and disease ensues which incapacitates him for work, the incapacity may be the result of the injury within the meaning of the (English) Workmen's Compensation Act, even though it is not the natural result of the injury. The question to be determined on a claim for compensation is whether the incapacity is in fact the result of the injury. Ystradowen Colliery Co. v. Griffiths, (1909), 2 K. B. 533. In a case where a petitioner's arm was broken while he was in defendant's em- ploy, and the fracture properly united, but there developed an abscess upon the fleshy part of the thumb, which resulted in ankylosis, making the thumb useless, our Supreme Court held that the ankylosis of the thumb was an injury arising by accident out 68. Fox v. United Chemical ft Organic Products Co., La. . 86 So. 311. 7 W. C. L. J. 62. 687 291 WORKMEN'S COMPENSATION LAW of and in the course of the employment. Newcomb v. Albertson, 85 N. J. Law, 435, 89 Atl. 928. And Mr. Justice Swayze, in writing the opinion in Liondale Bleach Works v. Riker, 85 N. J. Law, 426, at page 429, 89 Atl. 929, observed that the question of disease following an accident was considered in Newcomb v. Albertson, supra. The decision there, rested on certain English cases, is to the effect that an injury which follows an accident, and which, but for the accident, would not have happened, justifies the finding that the injury in fact results from the accident." 69 Where an employee suffered an accidental injury to his hand, and three years later a cancer developed on his penis, which he sought to show resulted because of his impaired physical condition following the injury to his hand, the court held that the evidence adduced was insufficient to establish such a causal connection as to warrant any such finding 70 Claimant was, injured in a fall and his leg fractured. Later it became necessary to amputate the leg. The evidence tended to show that the claimant was suffering from a cancerous infection at the point where the fracture occurred, and that both the fracture and the amputation was proximately caused by the cancerous conditions, and the accidental fall was merely the occasion and not the cause of the injury. Therefore it cannot be said that the loss of the leg was due to an accident arising out of the em- ployment, but was due to the cancerous disease. 71 Plaintiff in error insists that the death was not due to an acci- dent arising out of and in the course of the employment of the deceased, but was due to an intervening cause. The testimony shows that November 16, 1914, deceased, with others, was engage- ed in unloading barrels of meats from a car. A barrel weighing 69. Lundy v. George Brown & Co., 93 N. J. L. 107, (1919), 108 Atl, 252, 5 W. C. L. J. 294; Bethlehem Shipbuilding Corp., Ltd. v. Indus. Comm., Cal. , (1919), 185 Pac. 179, 5 W. C. L. J. 128; Tanner v. Aluminum Castings Co. Mich., (1920), 178 N. W. 6 W. C. L. J. 337. 70. Ortner v. Zenith Carburetor Co., Mich. , (1919), 175 N. W. 122, 5 W. C. L. J. 273. 71. Brady v. Holbrook, Cabot & Rollins Corp., 189 App. Div. 405, 178 N. Y. S. 504, (1919), 5 W. C. L. J. 91. 688 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 291 about 500 pounds was pried from its position on top of other barrels, suddenly fell, and rolled, striking deceased, knocking him down and injuring his leg. The proof warrants the conclusion that the abscess which developed and caused deceased's removal to a hospital resulted from that injury. But plaintiff in error contends Bonkowski's death did not result from that injury, but was due to his fall in the hospital, which intervened between the accident received where he was employed and the death. The test- imony of the physician who treated Bonkowski was, in substance, that the abscess on his thigh was caused by an external injury; that the pus which had formed had eaten through and destroyed the tissue and blood vessels and attacked the bone, which ne<-> tated curetting and chiseling away part of the bone. This weak- ened the bone, and while getting out of bed the limb gave away, Bonkowski fell to the floor, and the femur broke at the place it was eaten by disease. He was operated on six days later and died from the shock the same day. The Industrial Commission was warranted by the proof in finding that death resulted from the injury. 72 Where a workman's neck was cut while being shaved in a barber shop, and the following day, while handling hides, anthrax germs entered through the cut causing his death, it was held that the death was due to an injury arising out of the employment. 73 Where an employee strained himself by lifting, and later died from pneumonia, which the evidence established was due to the injury, the board was justified in finding that the subsequent death was due to an accident arising out of and in the course of the employment. 74 72. G. H. Hammond Co. v. Indus. Comm. et al., 288 111. 262, 123 N. E. 384, 4 W. C. L. J. 176; Bailey v. Indus. Comm., 286 111. 623, 122 N. E. 107; Bergstrom v. Indus. Comm., 286 111. 29; In re Patrick J. Mara, 3rd A. R. U. S. C. C. 104; In re Joseph Porter, 3rd A. R. U. S. C. C. 103; In re Freeman H. M. Murray, 3rd A. R. U. S. C. C. 104. 73. Eldridge v. Endicott Johnson ft Co., 189 App. Div. 63, 177 N. Y. S. 863, (1919), Reversed, see 126 N. E. 264, 5 W. C. L. J. 716. 74. Folta v. Robertson, 188 N. Y. 359, (1919), 177 N. Y. Supp. 34, 4 W. C. L. J. 429. 689 W. C. 44 291 WORKMEN'S COMPENSATION LAW Where an employee suffered an accidental injury and later developed hysterical insanity, a finding of the board that the in- sanity was due to the injury and arose out of the employment, was sustained by the evidence. 75 An employee suffered a frostbite while performing his duties in the service of the master and developed erysipelas, as the result of the injury, which caused his death. His death was held to be due to an accidental injury arising out of the employment. 76 Where a workman stepped on a rusty nail and later contracted tetanus by the entrance of germs through the wound, it was held that he sustained an injury arising out of his employment. 77 Where a contract of employment provides that the employer will furnish competent medical treatment, and the employee's injury has been aggravated by the furnishing of incompetent medical treatment, it was held that such aggravation did not fall within the compensation act of Alaska, for the injury did not arise out of and in the course of the employment. 78 Where an employee was injured in the course of his employment, and later aggravated the injury through boxing, it was held that the dormant germs in the locality of the injury had been aggravated by the violent exercise of boxing and the bout, intervening sub- sequent to the original injury, was the efficient cause, and had its origin independent of the original cause and superceded it, and therefore the aggravated injury was not due to the accident arising out of the employment. 79 An employee suffered an injury to his leg, and was ordered back to work by the attending physician before the injured member was completely recovered. He struck his leg against a chair with the result that he was further incapacitated. In holding that the 75. Kingan & Co. v. Ossam, Ind. App. , 121 N. B. 289, 3 W. C. L. J. 276. 76. Larke v. Hancock Mut. Life Ins. Co., 90 Conn. 303, 97 Atl. 320. 77. Putnam v. Murray, 174 App. Div. 720, 160 N. Y. S. 811. 78. Ellamar Min. Co. v. Possus, (C. C. A.), 247 Fed. 420, 1 W. C. L. J. 723; Ruth v. Witherspoon-Englar Co., 98 Kan. 179, 157 Pac. 403, L. R. A. 1916E, 1201. See Medical Treatmtnt Causing Disability 495 post. 79. Kill v. Indus. Comm. of Wis., 160 Wis. 549, 152 N. W. 148, L. R. A. 1916A, 14. 690 ACCIDENT ARISING OUT OP COURSE OF EMPLOYMENT. 291 subsequent injury was proximately caused by the accident arising out of the employment; the court said: "We are of the opinion that a susequent incident or accident aggravating the original injury may be of such a nature and occur under such circumstances as to make such aggravation the proximate and natural result of the original injury . Whether the subsequent incident or accident is such, or should be regarded as an independent intervening cause is a question of fact for the commission, to be decided in view of all the circumstances, and its conclusion must be sustained by the courts whenever there is any reasonable theory evidenced by the record on which the conclusion can be upheld. The testi- mony of Scott, as to exactly what occurred on the evening of April 15th must be accepted here as true. According to 1;his, there was nothing but the accidental striking by Scott of the heel of the foot of the injured limb against the pedestal of the table or a chair, done in the attempt to save himself from a fall, something to have been reasonably anticipated when he was discharged from the hospital in the condition in which he then was, and all ot' which happened without any negligence on his part. Surely, it such a thing might cause a displacement of the bones, he was in no condition to be called on to go about without an attendant, and it was reasonably to be anticipated that if he was left thus to care for himself, such a thing would occur. We have already noted the serious nature of the fracture, the lenght of time required to effect a permanent reunion of the bones, and the extreme difficulty of keeping the bones in place and preventing displacement. Under all the circumstances it appears to us that it might well be concluded, as was concluded by the commission, that such an incident as was described by Scott was not an independent, intervening cause, with- in the meaning of the law, but that the striking of the heel and consequent separation of the bones, which had been partially, but not permanently, united, was simply a proximate and natural re- sult of the original injury." 80 80. Head Drilling Co. v. Indus. Ace. Comm., 177 Cal. 194, 170 Pac. 157, 1 W. C. L. J. 470, 16 N. C. C. A. 550; Reiss v. North way Motor and Mfg. Co., 201 Mich. 90. 166 N. W. 840, 16 N. C. C. A. 550, 1 W. C. L. J. 1008; Shell Co. of Cal. v. Indus. Ace. Comm., 36 Cal. App. 463, 172 Pac. 611, 2 691 292 WORKMEN'S COMPENSATION LAW 292. Accidents Occuring to Employees While Performing Acts for the Master Other Than Those Within Their Particular W. C. L. J. 34, 16 N. C. C. A. 552; Pacific Coast Casualty Co. v. Pillsbury, 171 Cal. 319, 153 Pac. 24, 16 N. C. C. A. 554; Adams v. W. B. Wood & Co., 203 Mich. 673, 169 N. W. 845. In following cases compensation was allowed, in accordance with the general rule, for diseases and disability following accidental injuries aris- ing out of the employment where the subsequent disability was directly traceable to the effects of the injury, or brought on because of an im- paired physical condition resulting from the injury rendering the in- jured party susceptible to the attacks of disease. Vogeley v. Detroit Lbr. Co., 196 Mich. 516, 162 N. W. 975, 15 N. C. C. A. 641; Leslie v. O'Connor & Richmond, 220 N. Y. 672, 116 N. E. 1057, 15 N.- C. C. A. 642; Heileman Brg. Co. v. Schultz, 161 Wis. 46, 152 N. W. 446, 15 N. C. C. A. 643; Van Keuren v. Dwight Devine & Sons, 179 N. Y. App. Div. 509, 165 N. Y. S. 1049; State ex rel. Jefferson v. District Ct. of Ramsey Co., 138 Minn. 334, 164 N. W. 1012; Balzer v. Saginaw Beef Co., 199 Mich. 374, 165 N. W. 785, 15 N. C. C. A. 645; Bucyrus Co. v. Town- send, 64 Ind. App. , 117 N. B. 656, 15 N. C. C. A. 646; Collins v. Brook- lyn Union Gas Co., 171 N. Y. App. Div. 381, 156 N. Y. S. 957, 15 N. C. C. A. 647; In re Crowley, 223 Mass. 288, 15 N. C. C. A. 346, 111 N. E. 786; Hills v. Oval Wood Dish Co., 191 Mich. 411, 158 N. W. 214, 15 N. C. C. A. 649; In re Sponatski, 220 Mass. 566, 108 N. E. 466, 8 N. C. C. A. 1025; Malone v. Cayzer, Irvine & Co., 1 B. W. C. C. 27, (1908), S. C. 479, 45 Sc. L. R. 351, 8 N. C. C. A. 1025; Mutter, Howey & Co. v. Thomson, (1913), Sc. Ct. of Sess. 6 B. W. C. C. 424; Southwestern Surety Co. v. Pillsbury, 172 Cal. 768, 158 Pac. 762; In re Burns, 105 N. E. 601, 218 Mass.. 8, 5 N. C. C. A. 635; Cline v. Studebaker Corp., 189 Mich. 514, 155 N. W. 519; Newcomb v. Albertson, 85 N. J. L. 435, 89 Atl. 928, 4 N. C. C. A. 783; In re Felecita G. Lynch, 3rd A. R. U. S. C.C. 121. In the following cases it was held that the subsequent disability or death was due to intervening causes, and not proximately caused by an accidental injury arising out of the employment. 82 Southall v. Cheshire Co. News Co., 5 B. W. C. C. 251, (1912), W. C. R. 101, 8 N. C. C. A. 1028; McCoy v. Michigan Screw Co., 180 Mich. 454, 147 N. W. 527, 5 N. C. C. A. 455; L. R..A. 1916A, 323; Roca v. Stanley Jones & Co., (1914), 7 B. W. C. C. 101; Humber Steam Towing Co. v. Barclay, (1911), 5 B. W. C. C. 142; Bellamy v. J. Humphries & Sons, (1913), 6 B. W. C. C. 53; Paton v. William Dixon, 6 B. W. C. C. 882; Pacific Coast Casualty Co. v. Pillsbury, 171 Cal. 319, 153 Pac. 24; Ruth v. Witherspoon- Englar Co., 98 Kans. 179, 157 Pac. 403; Reiner v. Morris Plains State Hospital, 37 N. J. L. J. 179; Lesh v. Illinois Steel Co., 163 Wis. 124, 157 N. W. 539. 692 ACCIDENT ARISING OUT OP COURSE OF EMPLOYMENT. 292 Line of Duty or Whose Conduct While Performing Their Duties to the Master Places Them Outside the Scope of Their Employ- ment. A workman who was injured at a buffing machine had been told by his instructor not to reach into an exhaust pipe under any conditions. He dropped an article into the pipe and removed the lid reached into the pipe to recover the article, and his hand \\.is broken and cut by a revolving fan in a box connected with the pipe. In discussing the question whether or not the accident arose out of the employment, the court said: "A risk is inci- dental to the employment .when it belongs to or is connected with what a workman has to do in fulfilling his contract of service. * * * It may be incidental to the employment when it is either an ordinary risk directly connected with the employment, or an extraordinary risk which is only indirectly connected therewith. (Byrant v. Fissell, supra, on p. 461) It is stated that it may be difficult ti> conceive of any injury which arises 'out of the employment which does not arise 'in the course of it; but the converse, however, is not true. * * * The determination of this question presents one of the most difficult problems in connection with the act. It has been said that each case must depend upon its own circumstances and cannot be solved by reference to any formula or general principel.' (Glass on Workman's Comp. Law, 10). 'An accident only arises out of and in the course of a workmen's em- ployment when it arises from his doing or omitting to do some act within the sphere of his employment. If he chooses to step out- side the sphere on his employment and to do something he is not expected or required to do, he does so at his own risk and is not under the protection of the act. * * * A sharp distinction is drawn between doing of a thing recklessly or negligently which ;i workman is employed to do and the doing of a thing altogether outside and unconnected with what he is employed to do, and if an accident happens in the former case it arises out of and in the course of the employment but not in the latter case. There are prohibitions which limit the sphere of employment and pro- hibitions which only deal with conduct within the sphere of em- ployment. A transgression of a prohibition of the latter class leaves the sphere of employment where it was. and Consequently 693 292 WORKMEN'S COMPENSATION LAW will not prevent the recovery of compensation. A transgrssion of the former class carries with it the result that the man has gone outside the sphere. If the act which caused the injury was within the scope of the servant's employment, the mere fact that he had been expressly forbidden to do that act will not neces- sarily be fatal to his claim. Ordinarily, where workmen are not employed to work with machinery or in close proximity thereto, they are held not entitled to compensation for injuries received where they voluntarily put themselves in a position to be injured thereby. * * * An accident does not arise out of the employment if, at the time, the workman is arrogating to himself duties which he was neither engaged nor entitled to perform. But the courts are inclined not to be too severe upon workmen who are injured by attempts to further the master 's business, 'although the attempt is in a line somewhat outside the precise scope of the employment. Where a servant is employed to do a certain service and is injured in the performance of a different service voluntarily undertaken, the master is not held liable; also where a servant voluntarily and without direction from the master, and without his acquiescence goes into hazardous work outside of his contract of hiring he puts himself beyond the protection of the master's implied undertaking, and if he is injured he must suffer the consequences. A master is not liable for the injuries to his servant unless the servant was at the time in the performance of some duty for which he was em- ployed. (Stagg v. Edward Westen Tea and Spice Co., 169 Mo. 489). A volunteer is one who introduces himself into matters which do not concern him, and does, or undertakes to do, some- thing which he is not bound to do or which is not in pursuance or protection of any interest of the master, and which is undertaken in the absence of any peril requiring him to act as on an emergency. (Kelly v. Tyra, 103 Minn. 176, 114 N. W. Rep. 750). The scope of a servant's duties is determined by what he was employed to do and what he actually did with his employer's knowledge and con- sent, and an employee who was performing the same services he was in the habit of performing when he was injured is not a volunteer in performing such duties. (Dixon v. Chiquola Manf. Co., 86 S. C. 435.)- These rules were briefly summed up in 694 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 292 Moore v. Manchester Liners, (1910), A. C. 498, where it was stated an accident to an employee occurs in the course of employ- ment when it takes place 'while he is doing what a man so em- ployed may reasonably do within a time during which he is em- ployed and at a place where he may reasonably be during that time to do that thing.' The Industrial Board found that the weight of the testimony showed Cappucio had been forbidden to reach into said pipe to recover articles that were dropped. It can hardly be said that the evidence shows that there was any emergency in order to protect the property of the employer that would justify Cappucio in reaching into the exhaust pipe. There is no evidence tending to show that there was any danger from the piece of metal being left in the exhaust pipe. Had the piece fallen upon the floor, there can be no question that it might well be considered as in the line of his duty for Cappucio to have picked it up, as that would ordinarily involve no danger and would be naturally incidental to the work in which he was employed. Of course, it can readily be understood that he desired to have his box com- plete and all the handles there and not to be critised because he had lost one; but it is plain from the construction of the exhaust system, in connection with the machinery at which he was working, that he must move with deliberation in order to step around to the large pipe, take off the tightly fitting cover and then reach in some distance, far enough to brin? his hand in contact with the fan. It certainly cannot be said that there was an emer- gency and that he was acting under a sudden impulse to protect the property of the employer. It is plain from the evidence and from the photograph in the record showing the construction of the machinery and the exhaust pipe, that they were totally di- tinct; that there was nothing in the construction that would tend in the slightest degree to lead Cappucio to think his work was in any way connected with cleaning the exhaust pipe or taking anything therefrom that had fallen into it, when in doing so he would be required to take off the tightly fitting cover of the pipe in order to reach into the opening. Whether this is true or not, we think the conclusion follows from this record that the act of opening this exhaust pipe to get the piece of metal out had no 695 292 WORKMEN'S COMPENSATION LAW such reasonable connection with his work as to justify him in the conclusion that it was his duty to take off this cover and attempt to recover the article. In Bischoff v. American Car & Foundry Co., 190 Mich. 229, 157 N. W. Rep. 34, it was held that 'notice must be taken that a factory of to-day usually includes within the fields df its operations many fairly distinct lines of work, from that of the roustabout engaged in the ordinary labor that almost anyone may perform, to that of the expert mechanic, which can be done safely by those only with skill and experience. The difference between these various kinds of work was always recog- nized by the common law, and it was held to be negligence for the master to require of the servant, without warning and in- structing him in the performance of work outside and more dan- gerous than that which the latter had contracted to perform. Such classification of work exists in the very nature of things, and as much under the statute as at common law. Its recognition is re- quired by any organization of a factory, not only for efficiency but as well for the purpose of guarding against accident and in- jury. And if a workman, when there is no emergency, should of his own volition see fit to intermeddle with somthing entirely outside the work for which he is employed, he ought not to be allowed com- pensation upon the mere plea that he thought his act would be for the benefit of his employer. That plea may be of value under some circumstances, but it cannot authorize an employee to voluntarily take upon himself the performance of work for which he was not employed.' The reasoning in that case is clearly applicable to the work which Cappucio was employed to do, that is the work of polishing was clearly different from the act of putting his hand into the pipe to clean it out or remove an article from it." There- fore the accident did not arise out of the employment. 83 A boy who had charge of the handle of a machine lifted off the cover over some pinion wheels and played with them, with the 83. Eugene Dietzen Co. v. Industrial Bd. of 111., 279 111. 11, 116 N. E. 684, 14 N. C. C. A. 125; Koza's Case, Mass. , (1920), 128 N. E. 400, 6 W. C. L. J. 685; Henry v. Indus. Comm., 111. , (1920), 127 N. E. 714, 6 W. C. L. J. 276; Haas v. Kansas City Light and Power Co., Kan. 1921, 198 Pac. 174. 696 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 202 result that his Iwnd was caught in the wheels and injured. He had been ordered not to lift the cover or touch the pinion wheels. It was held tluil the accident did not arise out of the employment. 84 A boy employed in a spinning mill injured himself while clean- ing the machinery while it was in motion. He was not employed to clean the machinery. It was held that the accident did not arise out of the employment. 85 A lad 14 years of age was employed as a bobbin bry at a spin- ning mill. His sole duty was to take off the bobbins. He attempted to replace some weights that had fallen off when the machine was in motion and was injured. A man was employed for leplacing tlics,> weights. It was held that the boy was not acting within the scope of his employment, and therefore the accident did not arise out of the employment. 86 Where a boy was sent downstairs with an insole to" have it re- molded, and in the absence of the operator he attempted to re- mold it himself and was injured is so doing, it was held that, in the absence of instructions forbidding him to touch the machine, he was entitled to compensation. 87 A chauffeur, engaged in moving bricks from a ear by the use of an automobile truck, engaged in a fight with another chauffeur over who should load his car first, and was killed. It was held that de- ceased was guilty of such gross wilful misconduct in the perform- ance of his master's work as to place himself outside of the em- ployment, and an injury sustained while engaged in the fight did not arise out of the employment. 88 84. Furniss v. Gartside & Co., (1910), 3 B. W. C. C. 411. 85. Naylor v. Musgrave Spinning Co., 4 B. W. C. C. 286. 86. Michael v. Henry, 209 Pa. St. 213, 16 Am. Neg. Rep. 151; Yodakis v. Alexander Smith Son's Carpet Co., 183 N. Y. S. 768, (1920), 6 W. C. L. J. 571. 87. Tobin v. Hearn, 33 Ir. L. T. 197; Greer v. Thompson. (1912), W. C. & Ins. Rep. 272; Hartz v. Hartford, Faience Co., 90 Conn. 539, 97 Atl. 1020; In re John F. Cody, Jr., 2nd A. R. U. S. C. C. 241. 88. Stillwagon v. Gallon Bros., 183 App. Div. 141, 170 N. Y. Supp. 677, 2 W. C. L. J. 379, 16 N. C. C. A. 932; Central Garage of La Salle v. Indus. Comm., 286 111. 291, (1919), 121 N. E. 587, 3 W. C. L. J. 428. 697 292 WORKMEN'S COMPENSATION LAW A cable splicer's assistant offered to assist the splicer in the performance of his duties, which were not any part of the assist- ant's duties. The foreman did not object. The assistant was in- jured doing the work. It was held that, "the voluntary offer of a willing servant to make himself useful in a matter not covered by any express command, when the proffered service is accepted by his superior, although not by an approval expressed in words, cannot be said, as a matter of law, to put the servant outside the limits of his employment." 89 Where a workman, employed to operate an engine in the base- ment, goes to an upper floor and volunteers to take fellow em- ployees to a floor above, and is killed in so doing, his conduct took him outside of his employment, therefore the accident did not arise out of the employment. 90 But where an employee of a contracting company was injured while attempting to save from a cave-in a fellow laborer, work- ing a few feet away on the same general undertaking, but for another employer, it was held that the accident arose out of the employment. 91 Where one employed to operate paint mixers in a factory volun- teered to remove a belt, the condition of which did not affect his work, and was injured, it was held that the accident did not arise out of the employment, for where "one introduces himself into matters which he has not been in the habit of doing with his employer's knowledge or consent or which is not in pursuance of any interest of the employer, and which is undertaken in the absence of any peril requiring him to act as on an emergency," he is not acting within the scope of his employment. 92 89. Miner v. Franklin County Telephone Co., 83 Vt. 311, 75 Atl. 653, 26 L. R. A. (N. S.) 1195; Geary v. Kinzler & Co., (1913), 6 B. W. C. C. 72. 90. Spooner v. Detroit Saturday Night Club, 187 Mich. 125, 153 N. W. 657, L. R. A. 1916A, 17; Phillip v. Hamburg-American S. S. Co., 37 N. J. L. J. 167; Pierre v. Barringer, La. , (1921), 88 So. 691; Waters v. Win. F. Taylor Co., 218 N. Y. 248, 112 N. E. 727; In re Joseph C. Demereth, 2nd A. R. U. S. C. C. 276. 91. Waters v. Wm. J. Taylor Co., 218 N. Y. 248, 112 N. E. 727. 92. Mepham & Co. v. Indus. Comm., 289 111. 484, 124 N. E. 540, 5 W C. L. J. 36. 698 ACCIDENT ARISING OUT OP COURSE OF EMPIX)YMENT. 292 A driver of a street flushing machine allowed another to ride on the truck with him and to drive the truck. The regular driver sat on the other side and operated the levers, and while doing this he noticed a wrench which he thought would fall from the running board, and in stooping to pick it up, he fell off and was injured. The lower court held that the accident arose out of the employment. Affirming the award the court said: "The em- ployee of Tryon & Brain did not abdicate either the place or character of his employment. He gave up part of his work to a- nother, it is true, as he permitted Schiling to run the truck, but it was strictly within the line of his duty to operate and care for the levers which controlled the flow of water from the truck to the street. The same may be said of his attempt to prevent the wrench from falling from the footboard. He was not outside the course of his employment merely because he allowed a stranger to perform a "part of his task while he was engaged in the per- formance of the remainder of it." 98 A boy was employed to hoist rivets to workmen on the top of a building. On the day of the accident young Carlson told his fellow worker that he discovered a new way to hoist the rivets, and in pursuance of which he climbed about twenty-five feet up the scaffolding, seized the hoisting rope, to the other end of which a bag of rivets was attached, and jumped to the ground, upon the theory that his weight would counterbalance that of the rivets, and so hoist them to the workmen above. As he reached the ground his head struck the bottom of the scaffolding, he lost hold of the hoisting rope and the bag of rivets fell upon his sto- mach in such a way as to fatally injure him. "While it may be conceded that Carlson at the time he met with the fatal accident was performing the duties of his employment in an unusual and dangerous manner, this fact, in and of itself alone, does not place him outside the provisions of the Compensation Act (Laws 1919, e. 210). There being a conflict of testimony as to whether or not tlio boy had been forbidden to leave the ground, the finding y teams in reaching the reservation would be facilitated, it was held that he had not departed from the scope of his employment. 28 \j Where an employee left his place of work and went to another portion of the premises to sleep and was injured, it was held that he had departed from the scope of his employment. 29 An employee who was accidently shot when he stopped to talk to another employee while on an errand, was held to be entitled to compensation under the Federal Act. 30 Where a helper on a truck was killed when returning from a town where the driver had gone to dissipate after completing his work at the place where his duties brought him, his injuries arose out of the employment since he was not obliged to abandon the truck and seeks other conveyance home simply because the one under whose direction he was working saw fit to go elsewhere and not return immediately upon the completion of the work they were sent to perform. 81 A traveling salesman had not departed from his employment while performing little acts of courtesy for his prospestive cus- 26. Sunny Side Coal Co. v. Indus. Comm., 111. , (1920), 126 N. E. 196, 5 W. C. L. J. 679. 27. Gibbs v. Downs, Conn. , (1920), 109 All. 170, 5 W. C. L. J. 777, In re James R. Mauck, 2nd A. R. U. S. C. C. 276. 28. In re James E. Hall, 2nd A. R. U. S. C. C. 251. 29. Collucci v. Edison Portland Cement Co., N. J. , (1920), 111 Atl. 4, 6 W. C. L. J. 550. 30. In re Wm. W. Richardson, 3rd A. R, U. 8. C. C. 179 31. Hartford Ace. & Indem. Co. v. Durham, - - Tex. Civ. App. , (1920), 222 S. W. 275, 6 W. C. L. J. 395. 709 293 WORKMEN'S COMPENSATION LAW tomers where the contract of employment contemplated that he should be courteouss and obliging even to an extent which would result in acts not directly connected with the sale of his commo- dities. 32 ASSAULTS. 293. Assaults Resulting From Controversies Connected With or Pertaining to the Employment. A steamfitter in a factory was called to repair a leaky pipe, and a controversy arose between him and a fellow employee concerning the work. The court held that the main question at issue was whether the accident aroso out of and in the course of the employment, and the burden of proving that it did so arise rested upon the applicant, but that proof might be by circumstantial as well as direct evidence. "We think there is evidence in the record that justified the Industrial Board in finding that the altercation grew out of matters connected with Blum's work, and that therefore the accident arose out of and in the course of his employment, and that the altercation was not purely a personal one, entirely outside of the scope of such em- ployment. The fact that Blum was not actually doing the special work of repairing when he was injured does not alter the case. He was where he was expected to be preparatory to fixing the leak." 33 Decedent, a watchman in a boiler factory, while in the per- formance of his duties, was killed by burglars. Defendants con- tended that the accident did not arise out of the employment since the hazard was not one which inhered in or was peculiarly in- cident to the operation of a boiler manufacturing plant. Answering this contention, the court isaid: "A fair statement of the rule under the rather limited statute of this state is that the injury must result from some danger peculair to the hazardous character of the employment. This does not mean, however, that in a 32. Chase v. Emery Mfg. Co., Pa. , (1921), 113 Atl. 840. 33. Swift & Co. v. Indus. Comm., 287 111. 564, 122 N. E. 796, (1919), 18 K. C. C. A. 1048, 4 W. C. L. J. 35; Muller v. Klingman, Ind. App , 125 N. E. 464, 5 W. C. L. J. 384. 710 ACCIDENT ARISING OUT OF COURSE OP EMPLOYMENT. 292 factory classified as extrahazardous because of the use of dangerous machinery none but machine operators or employees working in proximity to machinery may have compensation. Regarding for the moment the operating of machinery as the acme of the em- ployent, all that combines to make it such, everything integrated with it essential to effective functioning, other conditions being fulfilled, is included in the hazard. * * * It is stated that in the present case the watchman was killed in the factory. There is no contention that a night watchman was not necessary to the security of the plant, and so to the maintenance and prosecution of the defendant's business." 34 A head waiter was shot by an employee whom he had discharged. The duties of the headwaiter included the hiring, supervision and control of the employee under him. On the morning of the shooting the employee refused to obey the orders of the headwaiter and was discharged. About 11 o'clock he returned and shot the headwaiter. In affirming an award, the court said: "We are of opinion that so long as the employee while in the performance of the employer's business properly exercises the authority con- ferred upon him by his contract of employment, injuries received by him resulting from such employment arise out of the employ- ment, and if death ensues as in the case at bar his dependents are entitled to compensation." 35 Deceased, who was a waiter in a cabaret, was shot when he at- tempted to interfere in a quarrel between a patron and another waiter. Upon the evidence that the employees were expected to interfere in such quarrels, with the intention of suppressing them, and that this particular cabaret was of a type where such brawls were likely to occur, the court held that deceased was acting with- in the course of his employment, and the employment being of such nature as to expose him to these extra hazards the accident 34. Smith v. Kaw Boiler Works Co., Kan. , 180 Pac. 259, 4 W. C. L. J. 87, 18 N. C. C. A. 1049; Hellman v. Manning Sand Paper Co., 176 N. Y. App. Div. 127, 162 N. Y. S. 335, 14 N. C. C. A. 237; In re Paul Walter- mire, 3rd A. R. U. S. C. C. 178. 35. Cranney's Case, 232 Mass. 149, 122 N. E. 266, (1919), 18 N. C. C. A. 1050, 3 W. C. L. J. 641; Stertz v. Industrial Insurance Comm., 91 Wash. 588, 158 Pac. 256, 14 N. C. C. A. 231. 711 293 WORKMEN'S COMPENSATION LAW arose out of the employment, since it could not be inferred that in advancing towards the quarreling parties that deceased intended to start a quarrel; for it was already started. Deceased's inten- tion must have been to stop it as his duty required. The court saying that this "seems from the uncontra dieted evidence to admit of little doubt and less speculation." 36 Where an assistant cutter in a shirt waist factory was fatally wounded by strikers while trying to save his employer and other employees from injury, the injury arose "out of and in the course of the employment. ' ' The court said : ' ' While there must be some causal relation between the employment and the injury, it is not necessary that the injury be one' which ought to have been foreseen or expected. It must, however, be one which, after the event, may be seen to have had its origin in the nature of the employment. Such was our holding in Pekin Cooperage Co. v. Industrial Com., 285 111. 31, 120 N. E. 530. Where a workman voluntarily performs an act during an emergency, which he has reason to be- lieve is in the interest of his employer, and is injured thereby, he is not acting beyond the scope of his employment. 37 A boiler washer's helper quit and the boiler washer applied to the foreman for another assistant. This angered the first helper, who in an ensuing quarrel shot the boiler washer. It was held that the accident arose out of the employment, the court saying : ' ' There was a causal connection between the conditions under which Kraujalis was required to perform his work and the injury. It cannot be said that the proof does not tend to show that the shooting of Kraujalis was caused by his report to the foreman that Hunt had quit work. This the nature of his work required him to do, as he was obliged to ask the foreman for another helper He was acting entirely in the line of his duties, and this brought upon him the murderous assault by Hunt with a gun. That such is an unusual and extraordinary result makes it none the less an 36. Stevens v. Indus. Ace. Comm. of Cal.. 179 Cal. 592, 178 Pac. 296, (1919), 18 N. C. C. A. 1052, 3 W. C. L. J. 572; San Bernardino County v. Indus. Ace. Comm. of Cal., S5 Cal. App. 33, 169 Pac. 255, 15 N. C. C. A. 292. 37. Baum v. Indus. Comm., 288 111. 516. 123 N. E. 625, 4 W. C. L. J. 357, 18 N. C. C. A. 1053. 712 ACCIDENT ARISING OUT OP COURSE OF EMPLOYMENT. 293 incident of the employment. There is no dispute that Kraujalis was shot in the course of his employment, and we cannot say the Industrial Commission and the Circuit Court erred in finding the injury arose out of the employment, and this conclusion is sus- tained, in principle, by Trim School District v. Kelly, 7 B. W. C. C. 274, where the teacher was assaulted and killed by bad and unruly pupils. Polar Ice and Fuel Co. v. Mulray (Ind. App.), 119 N. E. 149? In re Heitz, 218 N. Y. 148, 112 N. E. 750, L R. A. 1917A, 344. " 38 A collector for a brewery, while on his rounds of collection, was shot by robbers. Affirming an award in claimant's favor, the court said : ' ' The fact that the death of Spang was intentionally caused does not defeat the claim. He was killed as an incident of his employment, because he had in his possession money belonging to liis employer, which it was the purpose of his slayer to feloniously appropriate. An injury caused deliberately and willfully by a third party may be an 'accidental injury' within the meaning of the act, from the viewpoint of the employer and employee. ' ' 39 Claimant 's husband and another were unloading bricks, and they got into a dispute as to which was* en titled to load first, and in a quarrel that ensued claimant's husband was killed. In reversing an award, the court held that the injury was not a natural in- cident to the work deceased was engaged in, and in participating in a fight he took himself outside of his employment. 40 Where claimant, culling barrel staves for a barrel raiser, was assaulted by an employee, who was culling staves for another barrel raiser, because of a dispute in regard to one taking staves from the rack of the other, he suffered an "accidental injury in the course of his employment" and one arising out of the employ - nii nt, the court saying: "No fixed rule to determine what is a risk of the employment has been established. Where men axe 38. Chicago R. I. & P. Ry. Co. v. Indus. Comm., 288 111. 126 123 N. E. 278, (1919), 4 W. C. L. J. 159, 18 N. C. C. A. 1054. 39. Spang v. Broadway Brewing & Malting Co., 182 N. Y. App. Div. 443, 169 N. Y. S. 574, 17 N. C. C. A. 787, 1 W. C. L. J. 1133. 40. Stillwagon v. Callan Bros., 170 N. Y. 677, 121 N. E. 893, 16 N. C. C. A. 932, 2 W. C. L. J. 379; Knocks v. Metal Package Corp., N. Y. App. Div. , 185 N. Y. 8. 309, 7 W. C. L. J. 350. 713 293 WORKMEN'S COMPENSATION LAW working together at the same work disagreements may be expected to arise about the work, the manner of doing it, as to the use of tools, interference with one another, and many other details which may be trifling or important. Infirmity of temper, or worse, may be expected, and occasionally blows and fighting. Where the dis- agreement arises out of the employer's work in which two men are engaged, and as a result of it one injures the other, it may be inferred that the injury arose out of the employment. The origin of this difficutly was trifling the taking of a few staves from the claimant's rack, to which he objected, saying, as he testified, that if Miller would stay in there he would be up with the claimant. The dispute was concerning the employer's work in which the men were both engaged, and there is evidence tending to show that claimant was not responsible for the assault." 41 Two employees engaged in a fight as the result of an altercation concerning the use of certain ladles and one was killed. The fight occurred in the course of the 1 employment but did not origi- nate in it or arise as a consequence or incident of it. These men turned temporarily from their work to engage in their own quarrel. Nothing their employer required of them would necessarily pro- voke them to quarrel, nor could this have been reasonaby antici- pated. The fact that employees sometimes quarrel and fight while at work does not make the injury which may result one which arises out of their employment. There must be some reasonable connection between the injury suffered and the employment or the conditions under which it is pursued. 42 Deceased was employed to check up ice shortages on drivers and to report such shortages to the bookeeper. Having reported* one driver of shortage an altercation followed and deceased was shot, while seated at his desk, by the employee whom he had reported. Affirming an award in claimant's favor, the court said: "The facts 41. Pekin Cooperage Co. v. Indus. Comm., 285 111. 31, 120 N. E. 530, 17 N. C. C. A. 962, 3 W. C. L. J. 26; Heitz v. Ruppert 218 N. Y. 148, L. R. A. 1917A, 482, 112 N. E. 750, 14 N. C. C. A. 226; Stasmos v. Indus. Comm., - Okla. , (1921), 195 Pac. 762. 42. Jacquemin v. Turner and Seymour Mfg. Co., 92 Conn. 382, 103 Atl. 115 16 N. C. C. A. 930, 1 W. C. L. J. 934. 714 ACCIDENT ARISING OUT OF COURSE OP EMPLOYMENT. 293 here show that decedent was performing a character of service for his employer which might any time cause some grievance against him on the part of the other employees with whom his duties re- quired him to come in daily contact, so that when they were so angered at him or when under the influence of liquor they were liable to do him harm, still he was required to remain at his place of employment, surrounded by these dangers which finally led to and produced his death. Under such circumstances it may very properly be said that the accident which did occur was a risk reasonably incident to decedent's employment." 43 "An employee of a manufacturing company that had paid its premiums in the workmen's compensation fund, was ordered by a superior to procure an implement, which was to be used by P. to assist such superior. The implement was located in the hands of another employee who had equal rights with P. to its possession. Request for possession was refused. An argument was had by the parties. No effort to obtain possession by violence was made by P., nor was there any conduct justifying any assault by the other employee. Thereupon P. was violently assaulted by such other employee, and died from the effects of the assault. It was held that P. was injured in the course of his employment. 44 Deceased was an employee in the service of a mining company and was also a dupty sheriff. He was employed by the mining com- pany, among other things, to keep order about its premises and was killed while quelling a distrubance in one of its shacks. His em- ployer sought to evade liability on the strenght of a statute which defined the term "employee" and excludes "any person holding an appointment as deputy clerk, deputy sheriff, etc., but receives no compensation from the county or municipal corporation, or the citi/ens thereof for the services of such duty." The section however provides: "That such last exclusion shall not deprive any person so deputized from recourse, against any private person employing him. for injury occurring in the course of and arising 43. Polar Ice and Fuel Co. v. Mulray, (Ind. App.) , 119 N. E. 149, 16 N. C. C. A. 933, 1 W. C. L. J. 965. 44. Indufc. Comm. of Ohio v. Pora, Ohio , 125 N. W. 662, 5 W. C. L. J. 580. 715 293 WORKMEN'S COMPENSATION LAW F out of such employment." "It is obviously to this class of depu- ties that the excluding clause of the statute refers in sharp contrast to the provisions of the including clause. It is in the light of the meaning of the excluding clause that the proviso in question must be read. So read, its clear effect is to provide that, where a deputy performs acts which, while official in their nature, are advantageous to the employer and directed by him, not inci- dentally merely, but as part of the duties, prescribed and contem- plated in the contract of employment, then such deputy is acting in the course of his private employment within the meaning of the provisions of the Workmen's Compensation Act. Upon this view of the statute, petitioner cannot escape liability to compensate the widow for the death of Franklin H. Smith on the plea that in performing the duties incident to his employment he was also fulfilling a duty to the county." 45 A mill superintendent, was shot by a tresspasser when following express instructions of a superior in ordering the tresspasser out of the mill. It was held that he was injured by an accident arising out of and in the course of the employment. 46 Where a night watchman, employed to keep maurauders away, was found dead, and his pistol, from which a shot was fired, was found under a plank some 60 feet away, the court held that the board was justified in holding that deceased come to his death by the act of some maurauder who killed him because he was a watchman, not because of a personal grudge, and therefore the accident arose out of and in the course of the emplyment. 47 45. Engels Copper Mining Co. v. Indus. Ace. Comm., - - (Cal.) , (1919), 185 Pac. 182, 5 W. C. L. J. 134. 46. In re Reithel, 222 Mass. 163, 109 N. E. 951, 11 N. C. C. A. 235; Nevich v. Delaware, H. W. R. Co., 90 N. J. L. 228, 100 Atl. 234, 14 N. C. C. A. 232; Munroe v. Williams, Conn., 109 Atl. 129, 5 W. C. L. J. 655. 47. Mechanics Furniture Co. v. Indus. Bd. of 111., 281 111. 530, 117 N. E. 986, 15 N. C. C. A. 292; Chicago Dry Kiln Co. v. Indus. Bd of 111., 276 111. 556, 114 N. E. 1009, 14 N. C. C. A. 240; Ohio Building Safety Vault Co. v. Indus. Bd. of 111., 277 111. 96, 115 N. E. 149, 14 N. C. C. A. 224; Western Grain and Sugar Products Co. v. Pillsbury, 173 Cal. 135, 159 Pac. 423, 14 N. C. C. A. 236. 716 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 293 A miner, who returned to the mine to ascertain whether all tho blasts set had exploded, was shot without any notice while leaving the mine by a guard of the mine. In affirming an award, the court said: "Upon neither of these grounds can this award be annulled The recognized custom of miner's carried out with the knowledge and approval of the mine owners (a custom which manifest 1\ makes for the protection of the mine owners themselves, in lessen- ing the liability of injury from unexploded blasts by the oncoming new shift, ignorant of the conditions), becomes in all essenti;iU for this award a part of the duty of the miner in the performance of his work, and his injuries thus resulting grew out of and oc- curred in the course of his empolyment. Upon the second pro- position, while unquestionably it was a heedless and reckless thin*: for the guards thus to have shot a man without more investigation as to his character and intentions than was here shown to have taken place, yet, every legal presumption favoring innocence, the argument will not be sustained that these guards deliberately per petrated an assault to commit murder. To the contrary, it will be held that the man who fired the shot, himself the chief guard, believed that the circumstances justified him in so doing, and that thus he was acting within the line of his own employment, and under this view Mason, having been injured by the negligent per- formance of an act within the general scope of the duties of the employee inflicting the injury, is entitled to his recovery." 48 An employee began a controversy concerning the failure of an- other employee to reline ladles, and as a result he was injured. It was not any part of the injured employee's duties to see about the relining of the ladles, he should have reported it to the em- ployer. The court said: "If the injury can be seen to have follow- ed as a natural incident of the work and to have been contemplated by a reasonable person, familiar with the whole situation, as a re- sult of the exposure occasioned by the nature of the employment, then it arises 'out of the emloyment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the 48. Atolia Min Co. v. Indus. Ace. Com., 175 Cal. 691, 167 Pac. 148, 15 N. C. C. A. 238. 717 293 WORKMEN'S COMPENSATION LAW workman would have been equally exposed apart from the em- ployment. The causative danger * * * must be incidental to the character of the business, and not independent of the relation of master and servant. It need not have been forseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence." It was held that the injury did not arise "out of" the employment. 49 An employee was injured when he was struck by a stone thrown by another boy, who was also engaged in throwing stones from coal as it passed by on a belt, and oftentimes the stones were thrown for the purpose of attracting the attention of the other employees. The county judge found that the stone was mis- chievously thrown, and that it did not matter whether it was aim- ed at the injured boy or not. It was also found that the hazard of being struck by a stone was peculiar to this employment, and that the accident arose out of the employment. 50 "During the month of July, 1915, Tibbs was employed by An- seth as a bartender in the latter 's saloon in International Falls. In the course of his employment, and while actually engaged in his duties as bartender in the saloon, he was struck in the right eye by a heavy drinking glass thrown by a patron of the saloon who was so drunk that he did not know the nature of the act or what he was doing. It was a contention of relator on the trial that the glass was thrown by Dubonis, the drunken man, in a personal altercation between him and the bartender, but the find- ing is against this view, and the evidence is such that we must accept as true the version of the matter adopted by the trial court." In holding that the accident arose "out of" the employ- ment, and that the employment necessarily accentuated the nat- ural hazard from assault to which all men are subject, the court said; it "will take judicial notice that the position of bartender, patron, or spectator in a saloon, especially in one situated where 49. Union Sanitary Mfg. Co. v. Davis, 63 Ind. App. 548, 115 N. E. 676, 14 N. C. C. A. 227. 50. Clayton v. Hardwick Colliery Co., Ltd., 85 L. J. K. B. 292, (1915), 11 N. C. C. A. 236, Rev'g 1914 W. C. & Ins. Rep. 343, 8 N. C. C. A. 287. 718 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 293 rough characters are apt to congregate and carouse, is quite apt to be one of peculiar danger. Barroom assaults are not of infre- quent occurrence." 51 Deceased was engaged in performing the duties of a night mar- shall in a village and was killed while trying to prevent a viola- tion of the speed laws. It was contended that because deceased was killed while enforcing a municipal ordinance he did not come within the term police officer as construed under the Workmen's Compensation Act. "It is considered that Voeck, as we have shown, was in fact rendering services under an authorized ap- pointment of the village within the power conferred by statute upon the marshal, that he acted in the capacity of a temporary policeman for the village by authority of law, and- that the de- ceased was performing policeman's service within the contempla- tion of the workmen's compensation act." 52 An employee, who had been engaged to work in the place of two Italians was struck with a shovel by the Italians, while he was at work, because of an ill feeling engendered by the exchange of men. The commission held that the assault was an incident of the work, and, under the circumstances, might have been reason- ably anticipated, and therefore arose out of the employment. On appeal this finding was affirmed. 53 A yard foreman, whose duties were to look after the taking on of extra men and the sending out of vans, was killed by an extra man whom he had promised a van on a certain day, but who ar- rived too late to get the van that day. There was evidence that one employed to look after these extra men, who were a rough lot, was exposed to the extra hazard of being assaulted. Upon this showing it was held that the accident arose out of the employment. 54 51. State v. District Court of Koochiching Co., 134 Minn. 16, 158 N. W. 713, 14 N. C. C. A. 242. 52. Village of Kiel v. Indus. Corara. of Wis., 163 Wis. 441, 158 N. W. 68. 53. Harnett v. Thos. J. Stein Co., 169 App. Div. 905. Appeal to the Court of Appeals dismissed 216 N. Y. 101, 11 N. C. C. 238. 110 N. E. 170. 54. Weekes v. Wm. Stead, Ltd., (1914), W. C. * Ins. Rep. 434, 6 N. C. C. A. 1010. 719 293 ' : - 1 . < y -' WORKMEN'S COMPENSATION LAW - Where a teacher in a district school was beaten as the result of a criminal conspiracy among the students, it was held that the accident arose out of the employment. 55 Where a cashier, traveling on a train carrying a pay roll, was murdered, and robbed of the money he was taking to mines to pay off the workmen, it was held that the nature of his employ- ment exposed him to this particular risk, and therefore the acci- dent arose out of the employment. 56 Where a gamekeeper was beaten by poachers, it was held that the accident arose out of the employment. 57 An employer who knew of the vicious tendencies of an em- ployee when intoxicated, permitted him to work with other em- ployees while in an intoxicated condition. It was held that the employer was liable for injuries sustained by an employee who was assaulted by this employee while intoxicated during work hours. 58 A foreman of a section gang was assaulted when he attempted to compel a workman to use a shovel in a particular manner. It was held that the accident arose out of and in the course of the employment. 89 A fight began between a shovel engineer and a negro. The negro struck the engineer over the head with an iron, and another em- ployee, fearing the negro would kill the engineer, hit him in the mouth with his fist and thereby lacerated his hand, which later became infected. It was held that the claimant had gone outside of the scope of his employment in taking part in the fight and assumed the risk incidental thereto. 60 Where a police officer was intentionally killed by a person he attempted to arrest, recovery could not be had where the statute ex r eluded injuries resulting from the intentional acts of another. 55. Trim Joint District School v. Kelly, (1914), W. C. & Ins. Rep. 359, 136 L. T. J. 605, 6 N. C. C. A. 1010. 56. Nisbet v. Rayne and Burn, 2 K. B. 689, 3 N. C. C. A. 268. 57. Anderson v. Balfour, (1910), 2 Ir. Rep. 497, 3 N. C. C. A. 275. 58. In re McNicol, 215 Mass. 497, 4 N. C. C. A. 522, 102 N. E. 697, L. R. A. 1916A, 306. 59. Western Indemnity Co. v. Pillsbury, 170 Cal. 686, 151 Pac. 398. 60. In re G. M. Armstead, Op. Sol. Dep. C. & L. pg. 240. 720 ACCIDENT ARISING OUT OP COURSE OP EMPOYMENT. 293 "The plaintiffs in error, claimants before the commission, contend, in effect, that the above-quoted clause of section 8 of the statute of 1915 should not be literally construed, but that the words 'in- jury intentionally inflicted by another' should be interpreted to refer only to an injury intentionally inflicted by another for rea- sons personal to the assailant, and not to relate to, or include, any injury which, although inflicted intentionally by a third per- son, was one caused by the employment, or arose as the result of a peril incident to the employment as in the instant case. How- ever much the construction contended for would result in harmo- nizing section 8 with the general purpose of the Workmen's Com- pensation Act, nevertheless the contention cannot be sustaied. The clause and phrase in question is clear and explicit, and must be enforced according to its plain meaning. As said in Hause v. Rose, 6 Colo. 26: 'We cannot as a court, supply omissions,, nor make law to fit an exceptional case. * * * The statute, being ex- plicit, does not admit of interpretation beyond its express letter, and must be administered as we find it.' " 61 Where homicide results from a quarrel wherein personal mat- ters as well as matters pertaining to the employment have entered into the altercation, a finding that death was due to an injury aris- ing out of and in the course of the employment was warranted. 62 Injuries sustained by a strikebreaker when assulted by a striker after work hours away from the premises though in the company of the superintendant, are not compensable as they did not arise out of the employment despite the fact that at the time of hiring, the superintendant promised him that they would care for him and that he, the superintendant, would be with him after work hours." Where an employee accidently struck a foreman with a wheel- barrow, while pursuing his regular duties, and was assaulted by 61. Hellburg v. Town of Louisville, (Colo.), |1919), 180 Pac. 751. 4 W. C. L. J. 152. 62. American Smelting & Refining Co. v. Cassil, -- Neb. , (1920), 175 N. W. 1021, 5 W. C. L. J. 552; Hincbuk v. Swift & Co., Minn. . (1921), 182 N. W. 622. 63. Kourke's Case, Mass. , (1921), 129 N. K. 603, 721 W. C. 46 > 294 WORKMEN'S COMPENSATION LAW ' the foreman, the injuries sustained arose out of the employment. 6 * Where a private in the quartermaster's corps shot the pack- master as the result of a quarrel over the killing of a dog, com- pensation was allowed. 65 294. Assault Resulting From Controversies Not Connected With Nor Pertaining to the Employment. A superintendant of an apartment house was injured by an assault committed upon him by a tenant of the building, as the result of a quarrel arising from insults offered the tenant's wife. The court held that the acci- dent did not arise out of the employment, assaults being accidents "arising out of the employment" only when the employee is en- gaged in the master's business. 66 The claimant was shot by a negro janitor, and it appeared that the claimant, as foreman of the composing room, had a right to give orders pertaining to the janitor work of that room, and, if the orders were not obeyed, to report such violation to the employ- er. Claimant had the day prior to the shooting reported the jani- tor for refusal to obey orders. The janitor testified that claimant did not want him to work there, and that the foreman of the jani- tor work had told claimant to leave him alone, and that he shot claimant because claimant tried to shoot him. Affirming a determi- nation of the board denying compensation, the court, said that, "the test to be applied in assault cases was whether the attack grew out of the employment, out of the work or was one of personal vengeance." The power to determine from the evidence whether the assault grew out of the employment is vested in the board, and the burden of proof that the accident arose out of the employment, and that the person causing the assault was such a person as the employer should not have hired, rests upon the claimant. The 64. American Steel Foundries v. Melinik, -- Ind. App. , (1920) 126 N. E. 33, 5 W. C. L. J. 517. 65. In re Wm. H. Daley, 3rd A. R. U. S. C. C. 178. 66. Muller v. H. & A. Cohen, Inc., 186 App. Div. 845, 174 N. Y. S. 736, (1919), 18 N. C. C. A. 1050, 3 W. C. L. J. 649; Metropolitan Redwood Lbr. Co. v. Indus. Ace. Comm., Cal. , 182 Pac. 315, 4 W. C. L. J. 479. 722 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 294 finding of the board which was supported by the evidence will not be disturbed. 87 ' A chauffeur was sent out to drive a passenger to a station, and after arriving at the station and finding that the train was late, he proceeded to another point for his own and his passenger's convenience. While driving beyond his original destination, he was shot by the passenger, who suddenly became insane. In re- versing an award the court held that the accident did not arise out of the employment, for the employee left the employment for purposes of his own. 68 A school district employed a young woman teacher for a one- room school in a densely wooded and sparsely settled part of the country. On her way to her boarding house, after her day's work at the schoolhouse was done, and when off the schoolhouse grounds, she was assaulted by an unknown man for the gratifi- cation of his passions, and as a part of the transaction she was shot and the sight of one eye was destroyed. The Workmen's Compensation Act (Gen. St. 1913, Sec. 8195, et seq.) gives com- pensation for personal injury "caused by accident, arising out of and in the course of employment." It does not cover workmen except .while engaged in or about the premises where their work is done or their service requires their presence; and it excludes "an injury caused by the act of a third person or fellow employee intended to injure the employee because of reasons personal to him, and not directed against him as an employee, or because of his employment." Without determining whether the injuries to the teacher arose in the course of the employment it was held that they were not caused by accident arising out of the employment, and that they were not compensable under the Compensation Act." Two employees, engaged in skylarking, were stopped by the foreman and sent back to work, and later one hit the other on the 67. Marshall v. Banker-Vawter Co., 206 Mich. 466, 173 N. W. 191, (1919), 18 N. C. C. A. 1051. 4 W. C. L. J. 399. 68. Central Garage of La Salle v. Indus. Comm.. 286 111. 291, 121 N. E. 687, (1919), 18 N. C. C. A. 1052, 3 W. C. L. J. 428. 69. State ex rel. Common School District No. 1 in Itasca County v. District Court of Itasca Co., 140 Minn. 470, 168 N. W. 655, 17 N. C. C. A. 937, 2 W. C. L. J. 661. 723 294 WORKMEN'S COMPENSATION LAW side of the head with a pick and killed him. The court, in re- versing an award, held that the employer is not charged with liability for the wrongful and atrocious act of a servant entirely outside the scope of his employment; that the compensation act did not provide an insurance for a workman against every hap- pening to him while engaged in his employment, but only against accidents arising out of and in the course of his employment ; an act done by a fellow employee entirely outside the scope of his employment, was not such an accident so arising. 70 A paperhanger refused to strike when asked by members of a rival union, and as a result was assaulted and severely injured. The court in a criminal proceeding suspended sentence provided the wrongdoers would pay the injured employee $100.00 at once, and $15 per week during disability, and to guarantee him earn- ings of at least $15 per week after he should be able to go to work. Later the paperhanger brought action under the compensation act and the court refused to allow a reduction for the amount recovered from the wrongdoers. The Appellate court held that this was erroneous in that under the statute, a person injured through the negligence or wrongdoing of another not in the same employ, may elect as to which remedy he will pursue, and if he proceeds against the wrongdoer the employer is liable only for the difference between the amount recovered and the amount due under the compensation act, and in the event that he elects to take action under the compensation law he must assign his rights against the wrongdoer over to his employer or insurance carrier. 71 In denying that the accident arose out of the employment where two employees engaged in controversy and one assaulted the other, the court said: "Brill and Lee had no connection with or authority over each other in the discharge of their respective duties, and there is no proof to show that the altercation between 70. Mountain Ice Co. v. McNeil, 91 N. J. L. 528, 103 Atl. 184, 16 N. C. C. A. 933. 1 W. C. L. J. 1102; Rev'g, N. J. L. , 103 Atl. 912; Hulley v. Moosebrugger, 88 N. J. L. 161, 95 Atl. 1007, L. R. A. 1916C, 1203; Walthefs v. American Paper Co., 89 N. J. L. 732, 99 Atl. 263. 71. Dietz v. Solomnwitz, 179 App. Div. 560, 166 N. Y. S. 849, 16 N. 0. C. A. 413. 724 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 294 them grew out of the manner of performing their work or had any connection with it. It does not appear that Lee was present when Brill spoke to Ashford about the bread. As Ashford and Brill were going to the manager's office Brill and Lee met, there \\;is a sudden altercation between them, and Lee struck Brill. It is not sufficient that an accidental injury occur in the course of the employment but it must arise out of the employment. An accident to be within the Workmen's Compensation Act must have had its origin in some risk of the employment. There is no proof that the difficulty between Lee and Brill had its origin in or any connection with their employment. The proof is as consistent with the theory that it had no such origin or connec- tion, but resulted from a previous feud or ill feeling between the two men, as it is with the theory that the quarrel or altercation grew out of the manner of conducting the business in which they were employed. It was incumbent upon the defendant in error to prove the accident arose out of the employment by direct and positive evidence, or by evidence from whih such inference could be fairly and reasonably drawn. Ohio Building Vault Co. v. In- dustrial Board, 277 111. 96, .115 N. E. 149; Wisconsin Steel Co. v. Industrial Com., 288 111. 206, 123 N. E. 295. Liability cannot rest upon imagination, speculation, or conjecture, upon a choice be- tween two views equally compatible with the evidence, but must be based upon facts established by evidence fairly tending to prove them. Peterson & Co. v. Industrial Board, 281 111. 326, 117 N. E. 1033."" An employee was accidentally struck by a fellow employee and became angry and kicked his fellow employee, whereupon the lat- ter shoved him, and he sustained injuries which finally resulted in his death. After stating that according to the facts found deceased w;is the aggressor, the court, in reversing an award, said: "The injury was not a peril of the service nor reasonably incident there- to. It arose wholly from a voluntary act of Griffin (deceased) 72. Edelweiss Gardens v. Indus. Conirn., 290 111. 459, (1919), 125 N. E. 260, 5 W. C. L. J. 176; Romerz v. Swift ft Co., Kan. , (1920), 89 Pac. 923, 6 W. C. L. J. 162; In re Lester C. Hammond, 2nd A. R. U. S. C. C. 279; In re John L. Sulllval, 2nd A. R, U. S. C. C. 279. 725 294 WORKMEN'S COMPENSATION LAW entirely unnecessary, and not in the protection or advancement of the master's interest nor connected therewith. It was nothig more or less than the gratification of his personal feeling of animosity. No reasonable inference can be drawn which legitimately or fairly demonstrates that the injury to Griffin was an incident of his work. There was no causal connection between the work and the injury which resulted from the independent and affirmative and unjustifiable act of Griffin. This seems to have been clearly an injury which did not arise 'out of the employment. It was rather outside of the employment and one which grew out of a situation inaugurated by the injured employee himself for his individual purpose. ' ' 73 A delivery man and collector for a brewery was shot one Satur- day night while making a delivery. The assailant and his motive for shooting were unknown. In reversing an award, the court said: "If the shooting had been for the purpose of robbery then it could be said to be incidental to the employment but since there was no motive shown, no robbery having been commited the shoot- ing might have been in revenge for a past wrong or something foreign to the employment. There is nothing in the evidence to show that deceased's employment necessarily exposed him to the injury incurred, therefore the accident did not arise out of the employment. ' ' 74 An employee, engaged as a night watchman, was shot by a policeman when he was mistakenly suspicioned for being a yegg- man, who had recently robbed a post office. In holding that his death did not result from any special risk incident to the per- formance of his duties as a night watchman, the court said: "There was no evidence that this property ever had been injured by wrongdoers, or that from its character or location it was especially exposed to theft or harm at the hands of the trespassers. He was not shot while protecting his employer's property from thieves. At the time of this accident the property was in no way 73. Griffin v. A. Robertson & Son, 176 N. Y. App. Div. 6, 162 N. Y. S. 313, 14 N. C. C. A.229. 74. Schmoll v. Weisbrod and Hess Brg. Co., 89 N. J. L. 150, 97 Atl. 723, 14 N. C. C. A. 233. 726 ACCIDENT ARISING OUT OP COURSE OF EMPLOYMENT. 294 threatened, nor did Harbroe suppose it was. And he was not fired upon because he was the watchman in charge. The injury might quite as well have been suffered by any person who happened to be in the locality, whether employed by the construction com- pany or not. Further, although Harbroe mistakenly believed that the two approaching figures were 'yeggman,' they were in fact an officer of the law and his assistant, who were in the performance of their duty, seeking to apprehend the men who recently had robbed the post office. The injury they inflicted was the result of an unfortunate misapprehension on their part (to which liar- broe himself unwittingly contributed), and cannot reasonably be said 'to have had its origin in a hazard connected with the employ- ment and to have flowed from that source as a rational consequence, * * * There was no evidence to support the finding that the employee's injury 'arose out of his employment." 75 Under the Nebraska Compensation Act an employee, who has been assaulted either in anger or in play, and sustains an injury, the injury sustained does not arise out of the employment. 76 Where a strike breaker was injured by stones thrown by strikers, it was held that the accident did not arise out of the employment. 77 An agreement with an employer to be protected against injury from strikers enlarges the responsibility of the employer pertain- ing to assaults, but does not affect the scope of the compensation act. 78 Where an employee is injured by being struck by an iron thrown by another employee, while neither is at work, the accident does not arise out of the employment. 79 75. In re Harbroe, 223 Mass. 139, 111 N. E. 709, 11 N. C. C. A. 246; Heideman v. American District Telegraph Co., 183 N. Y. S. 924, (1920), 6 W. C. L. J. 568. 76. Pierce v. Boyer-Van Kuran Lbr. & Coal Co., 99 Neb. 321, 156 N. W. 509, L. R. A. 1916D, 970. 77. Murray v. Denholm & Co., (1911). S. C. 1087, 5 B. W. C. C. 496. 78. Poulton v. Kelsall, |1912), 2 K. B. 131, 5 B. W. C. C. 318, 4 N. C. C. A. 947. 79. Armitage v. Lancashire & N. Y. Ry., (1902), K. B. 178, 6 N. C. C. A. 1024. 727 294 WORKMEN'S COMPENSATION LAW Where an employee was killed when interfering in a fight be- tween his employer and another, with the intention of defending his employer, the accident does not arise out of the employment. 80 A cook was injured while trying to defend herself from a man who came out of the bar room to kiss her. It was held that the injury did not arise out of the employment. 81 An employee was injured by a blow from a hatchet in the hand of his employer, intentionally inflicted. It was held that the acci- dent did not arise out of the employment. 82 Under the Federal Act an employee injured by an assault from his employer, is injured by an accident arising out of the employ- ment. 83 Wilful intention to injure another is a bar to compensation un- der the New York act. So where an outsider came visiting among the employees of a brewery during work hours, and hung around and talked to the fireman of the engine, the engineer becoming vituperative, seized a wrench and attacked the visitor, who knock- ed him down, it was held that the accident did not arise out of the employment, but was occasioned by the willful intention of the employee to injure" the outsider. 84 A night watchman was struck on the head and killed by a fel- low employee, whose purpose in doing so was robbery. In re- versing an award, the court said: "While the injury occurred in, it did not arise out of the employment since the accident was in no way connected with decedent's employment. The killing was for a purpose entirely independent of the employment, and deceased would be subject to the same risk whether acting within his employment at the time of the accident or not." 85 80. Collins v. Collins, (1907), 2 Ir. Rep. 104, 41 Ir. L. T. 3, 6 N. C. C. A. 1025. 81. Murphy v. Berwick, 2 B. W. C. C. 103, (1909), 6 N. C. C. A. 1025. 82. Blake v. Head, 106 L. T. 822, 5 W. C. C. 303, (1912), W. C. R. 198, 6 N. C. C. A. 1025; Gregory v. Chapman, 38 N. J. L. J. 363. 83. In re Flemming's Op. Sol. Dep. C. & L. 187. 84. Ludwig v. Grohs Sons, 181 N. Y. App. Div. 907, 167 N. Y. S. 1111. 85. Walter v. American Paper Co., 89 N. J, L. 732, 99 Atl. 263, 14 N. C. C. A. 239, Rev'g. 98 Atl. 264; Mitchinson v. Day Bros., 6 B. W. C. C. 190, 6 N. C. C. A. 1024. 728 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 294 The claimant was assisting his brother to erect a house, and was told to allow no building material to be unloaded on the lot, that was intended for other houses which were being built near by. A teamster drove up with a load of brick and began unload- ing. The claimant protested, and a fight ensued in which the brother came off victorious. On the following day the teamster returned with a reserve force intending to get revenge. The claimant's brother was there that day and attempted to prevent the material from being placed on his lot and as a result a fight ensued. The claimant went to his assistance, and while keeping off the outsiders was struck in the eye by a missile thrown by one of the gang. The court, in denying that the accident arose out of the employment, said, his presence at the scene of the fighting was in no way connected with his employment. The mas- ter himself was there to protect his own property, and the brother rendered assistance solely in the interests of the master's safety, this may have been commendable, but was not a satisfactory an- swer to the question of what connection his acts had with his em- ployment. Had he remained on the bak porch where he was at work he would not have been injured, therefore the accident did not arise out of the employment. 88 An employee while at work was assaulted by a stranger, who was intoxicated. The court held that the claim could not be ex- cluded merely because the accident was caused by a third person, even though the act was felonious, if at the time the workman sustained the injury he was exposed thereto by the nature of his employment. If the burns and bruises directly resulted from the accident, that is, a fall which, by the nature of the applicant's employment, was attended with special risk and dangers of such consequences as happened to applicant, the case was such as to show that it arose out of the employment, and it mattered not that the fall was caused by something not arising out of the em- ployment, such as an unwarranted blow by an intoxicated stran- ger." 86. Clark v. Clark, 189 Mich. 652, 155 N. W. 507. 11 N. C. C. A. 240. 87. Macfarlane v. Shaw (Glasgow, Ltd., (1915), Ct. of Seas. Cas. 273, (1915), W. C. & Ins. Rep. 32, 11 N. C. C. A. 242. 729 294 WORKMEN'S COMPENSATION LAW "The question presented by this appeal is whether the injury arose out of the employment. Krasnoger Bros, were employed in constructing a building in the city of New York. The claim- ant was employed by them as a carpenter. Workmen in the em- ploy of other employers were working on the same building. On August 10, 1918, during working hours, claimant entered a wash- room and found a workman in the employ of the general con- tractor tied hand and foot and fastened to the floor. He asked claimant to untie him, which the claimant did. Some workmen not in the employ of claimant's employers were angered at claim- ant's action, and seized claimant and said they were going to tie him down; but claimant successfully resisted them. Before the altercation had entirely subsided, the structural superintendent, having general charge of the work, struck the claimant several times with a saw, inflicting injuries for which claimant demands compensation. The State Industrial Commission awarded com- pensation against the employers, from which an appeal is taken. The claimant had been handling chalk, and went to the wash- room just before the closing of the day's work to wash his hands. It would appear, therefore, that the claimant was in the dis- charge of his duties, and in the course of his employment. The employers, in their report of the injury, say that the employee was doing his regular work at the time he was injured. The claimant had been doing a merciful act to the employee in releas- ing him. There is evidence that the attempt to tie the claimant had ceased, and that he was struck by the foreman while leaving. This brings the case within the decision in Carbone v. Loft, 219 N". Y. 37, 114 N. E. 1062, in which the workman was struck three- quarters of an hour after the verbal altercation. The award of compensation was affirmed. In the Matter of Waters v. Taylor Co., 218 N. Y. 248, 113 N. E. 727, L. R. A. 1917A, 347, the court held that an employee was acting within the scope of his employ- ment, so as to be entitled to the benefit of the act, when he left the strict line of his employment in the attempt to rescue another workman, technically in the employ of an independent contractor, from a danger which threatened his life, and which cost the life of the intercessor. The court held that it must have been within 730 ACCIDENT ARISING OUT OP COURSE OF EMPLOYMENT. 294 the reasonable anticipation of this employer that his eraplo\ > would do just as Waters did if the occasion arose." 88 Where an auto salesman went for a ride at the invitation of a local dealer, and was accidently shot by members of a posse, when mistaken for auto thieves, it was held that the injury to the sales- man was due to an accident arising out of the employment, and not due to an assault directed against him by third parties for PC rsonal reasons. 80 A recent New York decision holds, that ; where an abattoir worker, resenting a sudden assault by a coemployee who threw a piece of flesh at him used the flesh in striking another employee whom he erroneously believed to be the assailant, the latter in turn kicked the claimant, the injuries sustained as a result of the kick arose out of the employment. The court said: "In the instance case the claimant was not the aggressor, but was attending to his master's business on his master's premise at the time of the as- sault. He was waiting to "lug" away viscera, and while waiting there for his master's benefit and in the work for which he was em- ployed was assaulted. In his excitement he defended himself by a counter attack upon, as it seems, another employee, with the result- ing injury to himself. He did not initiate the "melee," but was de- sirous only of transacting his master's business in peace. This fellow employee had previously, he claimed, interfered with his working. The Industrial Commission has found that claimant was engaged in the regular course of his employment when he was kicked. This is a finding of fact. The claimant was thrown on the defensive striking Dudler with the piece of flesh, who kicked him. If the claimant was right in assuming that Dudler was his assailant, his striking back would have been the natural result of the act, and it might then well be said that claimant was within the act. "The Workmen's Compensation Law (Consol. Laws, c. 67) should be construed broadly. Compensation under it does not de- 88. Marino v. Krasnoger Bros., (Dec. 29, 1919), 179 N. Y. S. 314, 5 W. C. L. J. 437. 89. Wold v. Chevrolet Motor Co.. Minn. . (1920), 179 N. W. 219. 6 W. C. L. J. 699. 731 294 WORKMEN'S COMPENSATION LAW pend on any fault of the master or any negligence of the servant. The law was enacted to do away with the defenses which had gov- erned the law of master and servant. The question in each case aris- ing under the Workmen's Compensation Law is, "Was the injury received while engaged in the master's business?" If the servant had left his employment and was willfully pursuing designs of his own, he would not be entitled to compensation. The man who initiates an assault is doing a willful thing, but this cannot be said of the man who, surprised by physical assault or insult, re- acts and in self-protection strikes another. His act is as involun- tary as. that of closing the eye to avoid dust, the same action and reaction which the law recognized in its definition of manslaughter. "Danger of employment in modern business comes from the gath- ering together of great and dangerous machines. There is a line of cases which hold that if an employer continues to employ a man of dangerous temper after he has become aware of the same, and he inflicts injury on a fellow workman, the workman will be entitled to recovery under the Compensation Act. This, however, is a retrogression to the old master and servant law, and clearly against the intent of the Workmen's Compensation Law, which does not look for fault, but merely insures workmen in certain em- ployments. "In the instant case the injury was the result of provocation and passion engendered between employees in the course of their em- ployment on the premises of the employer while engaged in their daily work. Mclntyre v. Rodger, 41 Scot. L. Rep. 107 ; Pekin Cooperage Co. v. Industrial Commission, 285 111. 31, 120 N. E. 530. "Under the circumstances of the instant case a workman at work for his master, who sustains injury because of his environment, is entitled to recover. This right to recover is 'not nullified by the fact that his injury is augmented by natural human reactions to the danger of injury threatened or done. "The purpose of the Compensation Act was to benefit certain workmen otherwise without legal recovery. Under its provisions they may receive compensation independent of the fault of the employer at common law or other statutes. 732 ACCIDENT ARISING OUT OF COURSE OP EMPLOYMENT. 295 "As Judge Pound said in the Matter of Heitz v. Ruppert, 218 \ V. 148, 154, 112 N. B. 750, 752, (L. R. A. 1917A, 344), speaking of the effect and purpose of the Compensation Act : 'The law has been and should be construed fairly, indeed liberally, in favor of the employee. Against its justness or econo- mic soundness nothing can be said.' 'I may seem harsh and arbitrary to impose liability upon a master for an assault committed by a workman upon a ooworkman, but the purpose and intent of the statute is to fix an arbitrary liability in the greater public interest involved. This legislation was to ameliorate a social condition not to define a situation or MX a liability by an adherence to the old common law. Liability was imposed regardless of fault vitally different from that under the common law. Injury by an employee moved by some cause aside from his regular duties, may be considered an inevitable, however undesirable, result a risk which is incident to the em- ployment of many persons. It is a burden which industry may well bear under this legislation. Hulley v. Moosbrugger, 87 N. J. Law, 103, 93 Atl. 79; Thorn v. Sinclair, A. C. 127; Pekin Cooperage Co. v v. Industrial Board, 277 111. 53, 115 N. E. 128; Knopp v. American Car Co., 186 111. App. 605, 29 Yale Law Journ- al, 672. The claimant is entitled to the benefit of the act.' " Where an employee began a quarrel with a fellow employee in the. morning over something which had occurred the previous e\vn ing and was killed in the affray, his death was not due to an acci- dent arising out of the employment. 81 Where a negro killed a fellow employee, who refused to brint; the negro a drink when getting one for himself, the death was not due to an accident having its origin in a risk of the employment. 8 - 295. Burden of Proof to Show that the Injury Was Caused by an Accident and that the Accident Arose out of and in the 90. Verschlerser v. Joseph Stern Son, N. Y. App. Div. , 1920, 128 N. E. 126, 6 W. C. L. J. 472. 91. Marion Coal Co. v. Indus. Comm., 111. , (1920). 127 N. E. 84, W. C. L. J. 15. 92. City of Chicago v. Indus. Comm., 111. , (1920), 127 N. E. 49. 6 W. C. L. J. 17. 733 295 WORKMEN'S COMPENSATION LAW Course of the Employment. A night watchman's duties required him to cross from one side of a ravine to another, using either a trestle or a narrow footbridge. He was last seen on the evening prior to his death when he reported for work. The next morning his body was found about 8 feet below the footbridge with injuries on his trunk, hands, and the back of his head. The night was exceedingly cold and there was some ice and snow on the trestle, but the footbridge had been cleared of ice and snow the previous day. The referee made an award, which was reversed by the court of common pleas. Reversing the judgment, the court said: " Where no facts appear indicating anything to the contrary, it may be presumed logically that an employee at his regular place of service, during his usual working hours, is there in discharge of some duty incident to his employment ; and, when the dead body of an employee is found on the premises of his employer, at or near the regular place of service, under circumstances fairly in- dicating an accidental death which probably occurred during the usual working hours of the deceased, the inference may fairly be drawn, in the absence of evidence to the contrary, that the em- ployee was injured in the course of his employment. Such is the case at bar." 93 Decedent was employed as a pipe fitter in connection with the operation of furnaces. He disappeared from work about mid- night and his body was found in a river which bordered on the grounds where the plant was located. Evidence tended to show that there was intense heat about the furnaces and also some gas, and employees' were often compelled to seek relief, on that account, by going out on the river bank for air. There was also testimony that, on the night of deceased's disappearance, there was no escap- ing gas, and that deceased was not required to make any repairs. When last seen he showed no signs of being affected by gas. Re- versing a judgment of the court which affirmed an award for his death, the court held that the burden was on the applicant to prove that the accidental death arose out of the employment by direct 93. Flucker v. Carnegie Steel Co., 263 Pa. 113, 106 Atl. 192, (1919), 18 N. C. C. A. 1055, 3W. C. L. J. 780; Sparks Milling Co. v. Indus. Comm., - 111. , (1920), 6 W. C. L. J. 299, 127 N. E. 737. 734 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 295 and positive evidence, or by evidence justifying such inference without resorting to surmise or conjecture, and that the evidence in the case was not sufficient upon which to predicate liability. 04 Where an employee was injured in the course of his employment pulling pumps and repairing pump jacks, the court held that the burden of proving that the relation of employer and employee existed, and that the injury was due to an accident arising out of the employment, rested upon the employee, but the burden of proving that the employment uas merely casual rested upon tho employer. 05 The applicant was struck in the eye with a piece of coal, but continued to work the remainder of the day, and reported the in- jury to the employer the following Monday. The employer sent him to an eye specialist, but despite medical treatment the vision of the eye was lost. The court held that "It was incumbent on th--.; applicant to prove that his loss of sight was caused by the accident Chicago & Alton Railroad Co. v. Industrial Board, 274 111. 336, 113, N. E. 629; Albaugh-Dover Co. v. Industrial Board, 278 111. 179, 115 N. E. 834; Ohio Building Safety Vault Co. v. Industrial Board, 277 111. 96, 115 N. E. 149 ; Northern Illinois Traction Co. v. Industrial Board, 279 111. 565, 117 N. E. 95; Peterson & Co. v. Industrial Board, 281 111. 326, 117 N. E. 1033." The evidence tended to show that applicant at the time of the accident, had been suffering from choroiditis, and that there was no connection be- tween the blow on the eye and the loss of the sight, except as to 35 per cent, which was due to the scar, and that applicant would have gone blind anyway in the same length of time, and therefore he had failed to prove that the total blindness was caused by an accident arising out of the employment. The court ordered the award reduced accordingly. 86 94. Wisconsin Steel Co. v. Indus. Comm., 288 111. 206, 123 N. E. 295, (1919), 18 N. C. C. A. 1056, 4 W. C. L. J. 168. 95. Consumer's Mutual Oil Producing Co. v. Indus. Comm., 289 111. 423, (1919), 124 N. E. 608, 5 W. C. L. J. 31. 96. Spring Valley Coal Co. v. Industrial Commission et al., 289 111. 315, 124 N. E. 545, 5 W. C. L. J. 64; New Castle Foundry Co. v. Lysher, - lud. App. , 120 N. E. 713, 17 N. C. C. A. 251, 3 W. C. L. J. 119. 735 295 WORKMEN'S COMPENSATION LAW An employee whose duty it was to mix paint in a factory, volun- teered to remove a belt ; the condition of which did not affect him or his work, and before the foreman had time to stop him he placed himself in a position where he could not avoid being injured. The court said: "It is conceded that this death was accidental, but the question is: Does the proof tend to show that the death occurred while deceased was reasonably fulfilling the duties of his employment or engaged in doing something incidental to it? The burden is on the applicant to prove that the accident arose in the course of and out of the employment by direct and positive evi- dence or by evidence by which such inference can be fairly drawn." 97 An employee fell on a sidewalk when going to pick up a rail. No one with him saw the fall or the occasion of the fall, but a passerby testified that he stumbled on a grate and fell. The court held that the burden of proving that an accident occurred which arose out of the employment rested upon applicant, and all the evidence should be considered and the preponderance of all the evidence must tend to substantiate applicant's claim. The com- mission's finding that applicant tripped on a grate while perform- ing his duties and that the accident arose out of the employment is supported by some evidence and is therefore conclusive. 08 Where a contractor's employee assists with a machine or ap- pliance belonging to the contractor, but in the work of a subcon- tractor or another to whom he is lent, he may, by giving his con- sent, become the servant of another, but there is a rebuttable presumption, that, in the management of such machine, Ke remains in the service of his original employer." Where a foreman in a composing room was shot by a janitor, the burden rested upon the claimant of proving that the shooting occurred while the employee was engaged in defending his ;m- 97. George S. Mepham & Co. v. Indus. Comm., 289 111. 484, (1919), 124 N. E. 540, 5 W. C. L. J. 36; Laskowski v. Jessup & Moore Paper Co., Del. , (1919), 108 Atl. 281, 5 W. C. L. J. 167. 98. Joseph Halstead Co. v. Indus. Comm., (1919), 122 N. E. 822, 287 111. 509; Mailman v. Record Foundry & Machine Co., (1919), 118 Me. 172, 106 Atl. 606, 4 W. C. L. J. 205. 99. Emack's Case, 232 Mass. 596, (1919), 123 N. E. 86, 4 W. C. L. J. 94. 736 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 205 ployer or his employer's property or interests, or was in some way engaged in the duties of his employment, and that the assault- was not made by the assailant merely for purpose of gratifying a personal revenge. 1 "Where an employer alleges wilful misconduct on the part of the employee, and seeks to show that the employee was acting outside of the scope of his employment, the burden of proving the wilful misconduct rests upon the employer. 2 If the claimant furnishes evidence from which an inference can reasonably be drawn that the injuries and death were due to the accident arising out of the employment within the meaning of the act, the burden then rests upon the employer to disprove the inference. 8 The applicant must sustain his contention by a preponderance of the evidence, and a finding: based upon mere guess, conjecture or possibility will not be allowed to stand. 4 Where an employee overexerts himself and later develops a dis- ease 1 which does not necessarily connote a previous injury, the burden is on applicant to prove that the disease resulted frou an injury. 8 1. Marshall v. Baker- Vawter Co., 206 Mich. 466, (1919), 173 N. W. 191, 4 W. C. L. J. 399; Chaudier v. Stearns Culver Lbr. Co., 206 Mich. 433, 173 N. W. 198, (1919), 4 W. C. L. J. 508. 2. Rosedale Cemetery Ass'n. v. Indus. Ace. Comm. of Cal., 37 Cal. App. 706, 174 Pac. 351, 17 N. C. C. A. 389, 2 W. C. L. J. 754. 3. Sugar Valley Coal Co. v. Drake, 64 Ind. App. , 117 N. E. 937, 1 V C. L. J. 594. Murphy's Case, 230 Mass. 99, 119 N. E. 657, 2 W. C. L. J. 270; Peterson & Co. v. Industrial Board, 281 111. 326, 117 N. E. 1033, 1 W. C. L. J. 335; Haskell, etc. Car. Co. v. Brown, 64 Ind. App. , 117 N. E. 555, 1 W. C. L. J. 48; Ohio Bldg. Safety Vault Co. v. Industrial Board, 277 111. 96, 115 N. E. 149; Coastwise Shipping Co. v. Tolson, 132 Mass. 203, 103 Atl. 478, 17 N. C. C. A. 252, 2 W. C. L. J. 91; Mischaless v. Hammond Co., (Mich.), 166 N. W. 933, 1 W. C. L. J. 1055; Muzik v. Erie R. R. Co., 85 N. J. L. 131, 88 Atl. 248, Aff'g. 92 Atl. 1087, 86 N. J. L. 695, Ann. Gas. 1916A, 140. 4. Albaugh-Dover Co. v. Indus. Bd., 278 111. 179, 115 N. E. 834; Bloom- ington R. Co. v. Indus. Bd., 276 111. 454, 114 N. E. 939; In re Dube, 226 Mass. 591, 116 N. E. 234; Piske v. Brooklyn Cooperage Co., 143 La. 455, 78 So. 734, 16 N. C. C. A. 939; Crucible Steel Forge Co. v. Moir, 219 Fed. 151, 8 N. C. C. A. 1006. 5. Linnane v. Aetna Brg. Co., 91 Conn. 158, 99 Atl. 507. 737 W. C. 47 295 WORKMEN'S COMPENSATION LAW Where an engineer was engaged in heavy work, it will not be inferred from this fact alone that a hernia suffered by claimant was due to an accident arising out of the employment, but he must prove this alleged fact. 6 When a workman receives an injury which could have been sustained elsewhere than in the course of the employment and must have arisen out of it, he need not prove the exact cause of the injury to entitled him to compensation. 7 Applicant, seeking compensation for the death of an employee, must prove by competent proof the death of the servant. This proof is sufficient if it would produce conviction in an unpred- judiced mind. The proof need not entirely exclude any possibility of death due in part to a diseased condition ; it is sufficient if the accident is shown to have been the moving cause. 8 A pipe fitter engaged in a quarrell over a leteik that was to be repaired, and was injured in a fight that ensued. In holding that the board was justified in finding that the accident arose out of the employment, the court said: "This court has said that the burden of proof rests upon the applicant to furnish evidence from which an inference can logically be drawn that the injury arose out of and in the course of the employment, but that such proof may be circumstantial as well as direct. Ohio Building Vault Co. v. Industrial Board, supra, and cases there cited. We have also said that it is impossible to lay down any rule as to the degree of proof which is sufficient to justify an inference being drawn by the Industrial Board, but that the evidence must be such as would induce a reasonable man to draw it; that where there is ground for comparing and balancing probabilities at their respective 6. Chicago Ry. Co. v. Indus. Bd., 274 111. 336, 113 N. E. 629; Nagy v. Solvay Process Co., 201 Mich. 158, 166 N. W. 1033, 1 W. C. L. J. 1049; Tackles v. Bryant, etc. Co., 200 Mich. 350, 167 N. W. 36, 1 W. C. L. J. 1031. 7. In re Bean, 227 Mass. 558, 116 N. E. 826; Heileman Brewing Co. v. Shaw, 154 N. W. 631, 161 Wis. 433; Stuart v. Kansas City, 102 Kan. 307, 171 Pac. 913, 2 W. C. L. J. 58. 8. Western Grain Products Co. v. Pillsbury, 173 Cal. 135, 159 Pac. 423; Shell Co. v. Indus. Ace. Comm., 36 Cal. App. 463, 172 Pac. 611, 2 W. C. L. J. 34; Bucyrus Co. v. Townsend, 64 Ind. App. , 117 N. E. 565, 1 W. C. L. J. 166. 738 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 295 values, and where the more probable conclusion is that for which the applicant contends, the arbitrator is justified in drawing ;in inference in favor of the applicant. Peoria Railway Terminal Co. v. Industrial Board, 279 111. 352, 116 N. E. 651. It has also been said that what is evidence of a fact and what is merely guessing at the fact "cannot be defined by any formula that one can invenr ; that what is wanted is to weigh the probabilities, to see if there ! proved facts sufficient to enable one to have 1 some foothold or ground for comparing and balancing the probabilities and their respective values, one against the other. < hvners of Ship Swansea Vale v. Rice, 4 B. W. C. C. 298. While the burden of proof is on the applicant to prove his case, this does not mean that he must demonstrate it beyond all reasonable doubt. It only means that there must be evidence in his favor upon which a reasonable MKID can act. If the evidence, though slight, is sufficient to make a reasonable person conclude that the applicant was injured while performing his duties in the course of his employment or duties incidental to that employment, then the case is proved. Marshall v. Owners of Ship Wild Rose, 3 B. W. C. 514. In proceedings under the Workmen's Compensation Law this court's consideration of the evidence is limited to the inquiry whether the record con- tains competent evidence to sustain the award, and, if so, the weight of evidence to the contrary will not be considered. Pekin Cooper- age Co. v. Industrial Comm., supra. The* only question before the court is whether the Industrial Board was justified, on the facts proved, in drawing the conclusion it has drawn. The finding of the Industrial Board is not to be set aside if warranted by evi- dence, although the court might feel that a different conclusion would have been reached if the members of the court had been called upon to decide the question in the first instance. Von Ette v. Globe Newspaper, 223 Mass. 56, 111 N. E. 696, L. R. A. 1916D, 641.'" 9. Swift & Co. v. Indus. Comm., (1919), 287 111. 564, 122 N. E. 796, 4 W. C. L. J. 35, 18 N. C. C. A. 1049; Also Westman's Case, 118 Me. 133, (1919), 106 All. 532, 4 W. C. L. J. 213; David Bradley Mfg. Co. v. Indus. Bd. of III., 283 111. 468, 119 N. E. 615, 17 N. C. C. A. 250, 2 W. C. L, J. 226. 739 295 WORKMEN'S COMPENSATION LAW Where the circumstances surrounding deceased's death are such as to lead an unprejudiced mind to reasonably infer that the death was caused by accident, the evidence need not negative all other possible causes of death. 10 The court, in a leading case, stated the general rule as follows: " It is well settled that the burden rests upon the one claimnig com- pensation to show by competent testimony, direct or circumstantial, not only the fact of an injury, but that it occurred in connection with the alleged employment, and both arose out of and in the course of the service at which the party was employed." ll 10. Bloomington, etc. Ry. Co. v. Indus. Bd., 276 111. 454, 114 N. B. 939; In re Uzzio, 228 Mass. 331, 117 N. E. 349, 1 W. C. L. J. 80; Proctor v. Ser- bino (owners), (1915), W. C. & Ins. Rep. 425, 10 N. C. C. A 618; De Mann v. Hydraulic, etc. Co., 192 Mich. 594, 159 N. W. 380; Fogerty v. National Biscuit Co., 221 N. Y. 20, 116 N. E. 346, Rev'g 175 App. Div. 729, 161 N. Y. S. 937; Dixon v. Andrews, 92 N. J. L. 512, 103 Atl. 410, 2 W. C. L. J. 105; Hollenbach Co. v. Hollenbach, 181 Ky. 262, 204 S. W. 152, 2 W. C. L. J. 493; State v. District Court, 134 Minn. 324, 159 N. W. 755; Guthrie v. Detroit Shipbuilding Co., 200 Mich. 355, 167 N. W. 37, 1 W. C. L. J. 1035; Sparks Milling Co. v. Indus. Comm., 111. , (1920), 127 N. E. 737, 6 W. C. L. J. 299. 11. Hills v. Blair et al., 182 Mich. 20, 148 N. W. 243, 7 N. C. C. A. 409; McCoy v. Mich. Screw Co., 180 Mich. 454, 147 N. W. 572, L. R. A. 1916A, 323; Bryant v. Fissel, 84 N. J. L. 72, 86 Atl. 458, 3 N, C. C. A. 585; In re Von Ette, 223 Mass. 56, 111 N. E. 697; Union Sanitary Mfg. Co. v. Davis, 63 Ind. App. 548, 115 N. E. 676; Savoy Hotel Co. v. Industrial Board, 279 111. 329, 116 N. E. 712; Chicago, etc. R. Co. v. Industrial Board, 274 111. 336, 113, N. E. 629; Roeblings Sons Co. v. Industrial Ace. Comm., 36, Cal. App. 10, 171 Pac. 987, 2 W. C. L. J. 38; Hallett's Case, 230 Mass. 326, 119 N. E. 673, 2 W. C. L. J. 281; Albaugh-Dover Co. v. Industrial Board, 278 111. 179, 115 N. E. 834; Draper v. Regents, 195 Mich. 449, 161 N. W. 956; Schmoll v. Weisbrod, etc. Brewing Co., 89 N. J. L. 150, 99 Atl. 723; Inland Steel Co. v. Lambert, 64 Ind. App. , 118 N. E. 162, 1 W. C. L. J. 347; Peoria R., etc. Co. v. Industrial Board, 279 111. 352, 116 N. E. 651; Armour & Co. v. Industrial Board, 273 111. 590, 113 N. E. 138; De Mann v. Hydraulic, etc. Co., 192 Mich. 594, 159 N. W. 380; Tackles v. Bryant, etc. Co., 200 Mich. 350, 167 N. W. 36, 1 W. C. L. J. 1031; Guthrie v. Detroit Shipbuilding Co., 200 Mich. 355, 167 N. W. 37, 1 W. C. L. J. 1035; Griffith v. Cole Bros., 183 la. 415, 165 N. W. 577, 1 W. C. L. J. 368; Brinsko's Estate v. LoMgh Valky R. Co., 90 N. J. Law 58, 102 Atl. 390, 1 W. C. L. J. 431; Robinson v. State, 93 Conn. 49, 104 Atl. 491, 2 W. C. L. J. 779; See, contra, McCabe v. Brooklyn Heights R. Co., 177 App. Div. 740 ACCIDENT ARISING OUT OP COURSE OV EMPLOYMENT. 295 Where an engine hostler was last seen alive working on his engine and ten minutes thereafter was found lying by the engine, dead with a bullet wound, and there was nothing to indicate sui- cide nor under what circumstances the shooting occurred, the court said: "The case turns on the burden of proof as to that fact; the lower court held it was upon the claimants, while the compensation board held it was upon the defendant. We agree with the latter. The general rule is one of liability for violent injury suffered by an employee in the course of his employment, as this undoubtedly was; the exception is that the employer is not liable for 'an injury caused by an act of a third person intended to injure the employee because of reasons personal to him.' The burden of proving the exception rests upon the party interposing it as a defense, for aw to that issue he holds the affirmative. See Zerbe v. Miller, 16 Pa. 488, 16 Cyc. 928. The burden of proof of a particular allega- tion rests upon the side to whose case it is necessary, and that U 107, 162 N. Y. S. 741; Chludzinski v. Standard Oil Co., 176 App. Div. 87, 162 N. Y. S. 225; Englebretsen v. Indus. Ace. Comm., 170 Cal. 793, 151 Pac. 421. 10 N. C. C. A*. 545; Fragovich v. Iroquois Iron Co., 269 111. 478, 109 N. E. 999, 10 N. C. C. A. 475; In re Savage, 222 Mass. 205, 110 N. E. 283; Thackway v. Connelly & Sons, 3 B. W. C. C. 37; Lendrum v. Ayr Steam Shipping Co., Ltd.. (1916), A. C. 217, (1914), W. C. & Ins. Rep. 438, (1914), 2 Sc. L. T. 137, 8 N. C. C. A. 1077; Hopkins v. Port Reading R. Co., 38 N. J. L. J. 19; Frith v. Louisianian (owners of), (1912), W. C. Rep. 285, 9 N. C. C. A. 262; Murphy & Sandwith v. Cooney, (1914), W. C. & Ins. Rep. 44, 9 N. C. C. A. 263; Smith v. Crescent Belting Co., 37 N. J. L. J. 292, 10 N. C. C. A. 640; Zabriskie v. Erie R. Co., 85 N. J. L. J. 157, 4 N. C. C. A. 778; Curran v. Newark Gear Cutting Machine Co., 37 N. J. L. J. 21; Chicago Great Western R. Co. v. Indus. Com. of 111., 284 111. 573, 120 N. E. 508, 3 W. C. L. J. 14; Dow's Case, In re Mutual Liab. Assur. Co., 231 Mass. 341, 3 W. C. L. J. 144, 121 N. E. 19; Ginsburg v. Burroughs Adding Machine Co., 204 Mich. 130, 170 N. W. 15, 3 W. C. L. J. 317; Hege ft Co. T. Tompkins, (Ind. App.) , (1919), 121 N. E. 677, 3 W. C. L. J. 451; Rish v. Iowa Portland A Cement Co., (Iowa), (1919), 170 N. W. 532, 3 W. C. L. J. 463, Nelson Const. Co. v. Indus. Com. of 111., (1919), 286 111. 632, 122 N. E. 113, 3 W. C. L. J. 605; Benjamin J Shaw Co. v. Palmatory, (Del.), (1919), 105 Atl. 417, 3 W. C. L J. 424; Carberry v. Deleware L. & W. R. Co., 93 N. J. L. 414. (1919). 108 Atl. 364, 5 W. C L. J. 419; Grant v. Fleming Bros. Co., (la.) , 176 N. W. 640, 5 W. C. L. J. 688; Morris * Co. v. Indus. Comm., 111. , (1920), 128 N. W. 727, 7 W. C. L. J. 41. 741 295 WORKMEN'S COMPENSATION LAW the defendent here. See 5 Am. & Eng. Enc. of L. (2d. Ed.), p. 24. "12 "The decedent, apparently while on his way to that part of the employer's plant where his services were to begin presently, was passing down .an alley between rows of machinery, when he was warned of an approaching electric truck from the rear. In step- ping aside, he appears to'have reeled and walked backward upon his heels, falling in such a manner as to produce a fracture of the skull resulting in death some hours later. While it is -highly probable that, had he been perfectly sober, the accident would not have occurred, the statute provides that in order to forfeit the benefits of the act, the injury must result 'solely from the intoxi- cation of the injured employee while on duty.' Workmen's Com- pensation Law, section 10. No such condition is shown by the evidence ; certainly the presumption is not overcome, and the award must be sustained. The injury occurred upon the premises of the employer, apparently while the decedent was about to take up the duties of his employment, and the presumptions of section 21, as well as the adjudications (Murphy v. Ludlum Steel Co., 182 App. Div. 139, 169 N. Y. Supp. 781), support the conclusions of the commission. The award should be affirmed." 13 An employee was sent to a private railroad yard, to unload a car.load of lumber. He twice telephoned his employer about the nonarrival of the trucks with which to remove the lumber. He was killed in a nearby railroad yard, through which he might have gone to reach a telephone. The court, holding that the accident arose out of the employment, said: "It is not known definitely from what point the deceased had sent in the telephone calls to his employer, but there was a telephone at the offices of the rail- road, near the place where the deceased was killed. The commis- sion assumed that the deceased was on his way to telephone his em- ployer once more when he was struck and killed. No one knows the purpose to serve which, the deceased had gone upon the railroad 12. Keyes v. New York Ry. Co., 265 Penn. 105, (1919), 108 Atl. 406, 5 W. C. L. J. 464. 13. Richards v. New York Air Brake Co., (Dec. 29, 1919), *179 N. Y. S. 317, 5 W. C. L. J. 443, 190 App. Div. 78. 742 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 296 lands. lie may have gone there in aid of his master, or upon busl- ii> -s or pleasure of his own. There being no substantial evidence to indicate the contrary, it must be presumed that his journey was made to serve his master, and that he was killed by an accident arising out of and in the course of his employment." 14 HI-LINGS AFFECTING SPECIFIC CASES AS ARISING OUT OP AND IN THE COURSE OP THE EMPLOYMENT. 296. Acting Under Unauthorized Orders. The general rule, governing cases wherein an employee performs an act outside of the scope of his regular duties, at the direction of one who has no authority to give such orders, and is injured while so doing, in the mistaken belief that the party giving the orders had authority to give such orders does not make the accident one arising out of and in the course of the employment. But orders given by one superior in authority presents a different question, and the tenden- cy of the decisions seems to be to the effect that the injured em- ployee is entitled to compensation. So, where a cinder pit man falsely stated to decedent, his co-employee, that the general fore- man told him to direct decedent to act in his place while he did something else, and decedent acted on such orders and was killed, it was held that the accident could not be said to arise out of the employment in which deceased was expected to engage. 15 Where a superintendant instructs a servant to perform certain duties for the benefit of the superintendant, and the servant is injured while so doing, believing that he was acting for his master and is injured, an instruction relieving the master from liability, on the ground that the injury occurred while not engaged about the masters business, is properly refused. 10 A minor, employed l.\ a newspaper establishment as a carrier. worked under a foreman whose duties were in no way connected 14. Smith v. A. M. Oesterheld & Son, (1919), 179 N. Y. S. 10, 5 W. C. L. J. 445, 189 App. Div. 384. 15. Southern Railway Co. in Kentucky v. Popes Admr., 119 S. W. 237, 133 Ky. 835. 16. Sims v. Omaha K. C. ft E. Ry Co.. 89 Mo. App. 197. 743 297 WORKMEN'S COMPENSATION LAW with the operation of the machinery. The foreman, without au- thority, ordered the minor to remove papers from a folding ma- chine, and he was injured while obeying. It was held that the minor was a mere volunteer, and the master was not liable. 17 Where one complies with an order given to him by one from whom he receives his orders, which order he knew or ought to have known the party had no authority to give, as it was expressly against the rules of the employer, and the employee in obeying such order is injured, the injury may nevertheless be an accident arising out of the employment. 18 Where a boy was accustomed to do all sorts of things at tha direction of his foreman, and was told by another that the foreman directed him to do certain work which statement was false but believed by the boy and acted upon, with the result that the boy was injured, it was held that the accident arose out of and in the course of the employment. 19 Where an employee was injured while acting under the orders of a fire warden, as authorized by a statute, it was held that the injury could not be said to have arisen out of his employment. 29 The applicant, who was employed as a teamster, in a municipal woodyard, for his board and lodging, was injured while acting out- side of the scope of his regular duties, but in obedience to the orders of a superintendent who had general authority to give orders. It was held that the accident arose out of and in the course of the employment. 21 297. Acids. An employee found that there was no hot water for cleaning up after work and endeavored to heat water by placing a bucket in what he supposed was a tank of hot water, but which was a tank of acid. The acid exploded and injured him. 17. Hatfield v. Adams, 96 S. W. 583, 29 Ky. Law. 880. 18. Statham v. Galloways Ltd., 2 W. C. C. 149; In *-e Felix McGowan, 3rd. A. R. TJ. S. C. C. 172. 19. Brown v. Scott, (1899), 1 W. C. C. 11. 20. Kennelly v. Stearns Salt, etc., Co. 190 Mich. 628, 157 N. W. 378. 21. City of Oakland v. Indus. Ace. Comm. of Cal., 35 Cal. 484, 170 Pac. 430, 1 W. C. L. J. 488. 744 ACCIDENT ARISING OUT OP COURSE OF EMPLOYMENT. 298 In holding that the accident arose out of and in the course of the employment, the court said: "The tank of acid constituted an insidious danger and potential peril to which employees in that institution were in some degree exposed. The injury sustained by appellee had its origin in conditions of such a nature as would prompt one to conclude, as of first impression, that it arose out of the employment. As against that conclusion, it may be said with much force that the workman stepped so far outside the custom as to exceed the bounds of reason; and that by his own rash con- duct he transformed a latent into an active peril, thereby creating the hazard which resulted in his injury." " Where an employee sustained an injury to his eye, while clean- ing out a storage tank when acid splashed into his eye, it was held that he sustained an injury arising out of the employment.* 3 An employee, who was engaged in drawing wire and handling acid, contracted rash and eczema due to the acid. It was held that she had suffered an injury arising out of the employment. 24 An employee who was engaged in handling cloth treated with chemicals contracted a rash which later developed into eczema and spread over his whole body. The court held that the evidence was sufficient to justify the board in finding that claimant suffered an accidental injury arsing out of the employment. 25 Where poisoneous substance enters the system though an a- hrasion of the skin while the employee is acting within the course of his employment, he has sustained an injury arising out of the employment. 29 Where an employee, engaged in attending to stopcocks on acid barrels, sustained injury to his eyes from acid spurting from a 22. In re Ayers (Ind. App.), 121 N. E. 446, 18 N. C. C. A. 1022 (1919), 23. Armstrong v. California Rex Spray Co., 1 Cal. I. A. C. D., (1914), 190, 10 N. C. C. A. 261; Anderson v. Ashmore Mut. Tel. Co., 111. Ind, Bd. Dec., (1915), 10 N. C. C. A. 262; Cox v. Gainsley, 2 Cal. I. A, C, D.. (1915), 230, 10 N. C. C. A. 264 . 24. Dolan v. Masaachueetts, Wkm. Comp. Cases, (1913). 259, 10 N. C. C. A. 262. 25. Rlker v. Llondale Bleach Dye & Print Works, 36 N. J. L. 305, 10 N. C. C. A. 262; Boris v. Frankfort Gen Ins. Co., 1 Mass. Wkm, Comp, Caa., (1913), 276, 10 N. C. C. A. 264. 26. In re Goldberg, Ohio Ind. Comm. Dec., (1914), 10 N. C. C. A. 268. 745 297 WORKMEN'S COMPENSATION LAW defective stopcock, it was held that he sustained an injury arising out of the employment. 27 An employee was disfigured by coming in contact with acids. He sought compensation claiming that his disfigurement prevent- ed him from obtaining work. The court held that compensation will not be awarded for mere disfigurement, but if it were shown that because disfigurement precluded an employee from obtaining work that compensation would be granted. In the present case the applicant did not sustain by evidence the allegation of non- ability to obtain work, and therefore his claim was dismissed. 28 Where an employee, engaged in cleaning a floor, sustained an abrasion on the ends of his fingers, but it was shown that the acids used were disinfectants and that the germs which caused infection were not due to the solution, it was held that the applicant had not shown that the injury was due to an accident arising out of the employment. 29 An employee was requested to bring a bottle of muriatic acid to the place of his employment the next day. He purchased it and placed it in his hip pocket, and it broke while he was sitting in a saloon talking to friends, some two or three hours later. It was held that the accident did not arise out of the employment, but the board said that if the employee had purchased the muriatic acid and proceeded within a reasonable time to his home, and while on his way received the injury, there would probably be no question as to his right to compensation, or if having taken the acid home, he met with the injury while taking it to his place of employment the following morning, his right to compensation would not be denied. 30 27. Del Bianco v. Gen. Chemical Co. of Cal., 2 Cal. I. A. C. D,, (1915), 210, 10 N. C. C. A. 265. 28. Clooney v. Cresent Glass Specialty Co., 37 N. J. L. J. 82, 10 N. C. C. A. 265. 29. Norris v. Williams & Larson, 3 Wis. I. C. D., (1914), 69, 10 N. C. C. A. 266; Mrczee v. Pfister & Vogel Leather Co., 3 Wis. I. C. D., (1913), 46, 10 N. C. C. A. 266; Murphy v. Employer's Liab. Assur. Corp. Ltd., 2 Mass. Wkm. C. C., (1914), 643, 10 N. C. C. A. 269. 30. Callahan v. Employer's Liab. Assur. Corp., 2 Mass. I. A. Bd. 684, 12 N. C. C. A 397. 746 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 298 298. Act of God. Where a factory foreman suffered a fatal injury when the walls of a building collapsed on account of a high wind while the foreman was attempting to close windows, a part of his duties, death was held to have arisen out of and in the course of his employment, and not to have been caused by an act of God." Where an employee was accidently drowned while on a dredge on account of a violent storm, recovery on the employer's in- surance policies could not be defeated under the Workmen's Com- pensation Act on the ground that the accident was an act of God, since this obligation having been voluntarily and knowingly en- tered into, with knowledge of all the dangers incident to this class of employment, this ab&olute and unqualified contract of insurance was not one the surety company was bound or compelled to make, nor did the law require any such duty or impose any such obli- gation upon it, as would permit it to excuse itself by pleading an inevitable accident or the act of God. 32 Death from lightning, while operating a steel road grader xvas due to an act of God and not to any peculiar hazard of the em- ployment. 83 Where an employee was killed in a cyclone, while working in a plant, where ammonia fumes and scalding steam contributed to his injuries the court in holding th.it the death \\as due to a pecu- liar risk of the employm'ent said: "We believe the reasonable rule to be that if deceased, by reason of his employment, was ox- posed to a risk of being injured by a storm which was greater than the risk to which the public in that vicinity was subjected, or if his employment necessarily accentuated the natural hazard from the storm, which increased hazard contributed to the injury, it was an injury arising out of the employment, although uncx- 31. Reid v. Automatic Electric Waaher Co., la. , 179 N. W. 323, 6 W. C. L. J. 662. 32. Southern Surety Co. v. Nelson, Tex. Civ. App. , (1*20), 223 S. W. 298. 6 W. C. L. J. 508; Southern Surety Co. v. Stubbs, 199 S. W, 343. 1 W. C. L. J. 444. 33. Wiggins v. Indus. Ace. Bd., -- Moat. , 170 Pac. 9, 1 \V. C. L J. 643. 747 299 WORKMEN'S COMPENSATION LAW pected and unusual. An injury, to come within the Compensation Act (Laws 1913 p. 335,) need not be an anticipated one, nor, in general, need it be one peculiar to the particular employment in which one is engaged at the time. While the risk arising from the action of the elements, such as a cyclone, is such a risk as all people of the same locality are subjected to independent of employment, yet the circumstances of a particular employment may make the danger of receiving a particular injury through such storm an exceptional risk, and one to which the public is not subjected. Such injury may be then said to rise out of the employment. In the instant case, while the risk of being injured by this cyclone may be said to have been a risk common to the public in the vicinity of such cyclone, regardless of employment, yet if there was in the circustances of Kilgore's employment an unusual risk or danger of injury from the destruction by storm of the build- ing in which he was employed, such risk may be said to be inci- dent to the employment of the deceased, and the injury received to rise out of such employment. Deceased at the time the storm broke was engaged in assisting and directing the closing up of the plant of defendant in error. These duties took him among the steam pipes and ammonia coils, which subjected him to an un- usual risk of being injured from escaping steam and ammonia fumes should the building be destroyed by storm. The evidence shows that the ammonia fumes and scalding steam contributed most largely to the injuries which caued his death. We are therefore of the opinion that there were in the circumtances of the employment of the deceased risks of being injured by the storm not common to the public in that vicinity, and the circuit court therefore erred in setting aside the award." 34 299. Anaesthetic Causing Death During Surgical Operation. Where a workmen's arm was so badly cut by his coming in contact with a saw that an immediate amputation was made neces- sary without sufficient time to prepare him for ether, and as a re- 34. Central 111. Pub. Serv. Co. v. Indus. Comm., 111, , (1920), 126 N. E. 144, 5 W. C. L. J. 661.. 748 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 300 suit he contracted ether pneumonia and died, it was held that the death was due to the accident, which arose out of and in the course of the employment." Where an employee suffered an injury in the course of his em- ployment, including a laceration of his fingers, and gangrene set in, necessitating an operation, and later a second operation was necessary, and as a result of the anaesthetic the patient developed pneumonia and died, the death was held to be due to the accident. 30 Where a workman crushed his hand, and by a skillful operation the hand was saved, but later a second operation became necessary to prevent the hand becoming stiff and useless, and the patient died under the anaesthetic, it was held that the second operation was merely a continuation of the first, and that the death arose from the accident, which occurred in the course of the employment. 17 An employee received an injury necessitating the amputation of one of his fingers. When he was recovering from the anaesthetic the surgeons decided to remove a bad tooth of which he had com- plained. Further anaesthetics were administered, and an un- successful attempt was made to remove the tooth. Shortly after- wards the workman died. In a claim for compensation it was held that the workman died from a failure of respiration caused by the anaesthetic, and that it was as likely that he died from an attempt to swallow blood oozing from his tooth as it was that -the first anaesthetic caused it, and the onus of proving the death was due to an accident arising out of the employment had not been discharged." 300. Anthrax. Where a wool sorter became infected with anthrax germs while working in the course of his employment. 35. In re Raymond Mass. Wkm. Comp. Rep., (1913), 277, 6 N. C. C. A. 627; O'Connor v. Daly, 1 Conn. Comp. Dec. 643. 36. Favro v. Board of Public Library Trustees, 1 Cal. I. A. C. D., (1914), 1, 6 N. C. C. A. 627. 37. Shirt v. Calico Printers' Ass'n., Ltd , 78 L, J. K, B, 528, 2 B. \V. C. C. 342, (1909). 2 K. B. 51, 100 L. T. 740, 25 L. T. R. 451, 53 Sol, J. 430, 6 N. C. C. A. 627. 38. Charles v. Walker, Ltd., 26 T. L. R. 609, 2 B. W. C. C, 5, (1909), 6 N. C. C. A. 628. 749 300 WORKMEN'S COMPENSATION LAW and later died, the court held that the death was due to an accident arising out of and in the course of the employment, within the meaning of the act. 39 Decedent was engaged in handling hides in a tannery. A day or so later he noticed a swelling on his neck under his jaw. He grew rapidly worse and died a few days later from sceptic infec- tion. The board found that anthrax germs had been taken up by the respiration organs and carried into his system, an occurrence so unusual in the work at which he was engaged as to constitute an accident arising out of his employment. On appeal the finding of the board was affirmed. 40 An employee engaged in weighing hides suffered a fissure in the back of his hand as a result of wet salt permeating his gloves. Anthrax germs from dirty and diseased hides entered his system through this fissure. In affirming an award, the court said: "The claimant, in the course of his employment and as a result thereof, had received an abrasion on his hand or a fissure therein. This may properly be deemed an accidental injury arising out of and in the course of his employment, and the disease or infection caused by the anthrax germ may be deemed 'such disease or in- fection as may naturally and unavoidaby result' from such injury, within the meaning of the statute." 41 Where a workman suffered from anthrax as a result of bacillus entering into his eye, while pursuing his usual course of employ- ment sorting wool, it was held that he suffered from an accident arising out of and in the course of his employment. 42 Where an employee had cut himself with a razor when not en- gaged in the duties of his employment, and later contracted an- thrax germs through the cut on his face and died as a result there- 39. McCauley v. Imperial Wollen Co., 261 Pa. 312. 17 N. C. C. A. 864, 104 Atl. 617. 40. Dove v. Alpena Hide & Leather Co., 198 Mich. 132, 164 N. W. 253. 41. Hiers v. Hull & Co., 178 N. Y. App. Div. 350, 14 N. C. C. A 853, 164 N. Y. S. 767. 42. Brintons Ltd. v. Turvey, (1905), A. C. 230, 74 L. J. K. B. 474, 92 L. T. 578, 21 T. L. R. 444, 53 W. R. 641, 7 W. C. C. 1, 6 N. C. C. A. 880; Bellamy v. Humphries, (1913), W. C. & Ins. Rep. 169, 6 B. W. C. C. 53. 750 ACCIDENT ARISING OUT OP COURSE OF EMPLOYMENT. 301 of, the court held that the death was proximately due to an acci- dent arising out of and in the course of the employment. 41 Evidence that a hostler died of anthrax, which resulted from in- fection through a boil in his nose, without proof that he came in contact with any diseased animal, except a lame horse, is in- sufficient to show that the disease was contracted in the course of his employment. 44 301. Appendicitis. Where an employee was kicked in the stomach by a mule, and later the employee was operated on in a hospital for appendicitis and death resulted from general peri- tonis following an acute attack of appendicitis, the board found that the death was due to the kick in the stomach, and therefore was the result of an accident arising out of and in the course of the employment. On appeal the court held that in view of such finding the burden of proving that it did not so arise rested on the employer. 45 Where an employee slipped while climbing out of a prism of a barge canal, striking his abdomen and injuring a diseased ap- pendix, and the fall caused an acute exacerbation thereof, pro- ducing a rupture, from which acute peritonitis developed and caused his death, it was held that the injury was due to an acci- dent arising out of the employment. 40 Where a collier complained of being accidently hurt by coal rolling down against him from a pile as he was filling baskets of coal, and later he died of appendicitis and a rupture of the bowels, the court held that the evidence was sufficient to establish 43. Eldridge v. Endicott-Johnson & Co., 177 N. Y. Supp. 863, (1919), 4 W. C. L. J. 621, 189 App. Div. 53. This case was reversed- on appeal, - App. Div. . 126 N. E. 254, 5 W. C. L. J. 716. 44. White v. American Society for the Prevention of Cruelty to Animals, App. Div. , (1920). 180 N. Y. Supp. 867. 5 W. C. L. J. 874. Note: See same title in chapter on Accidents. 45. Jewel Tea Co. v. Weber, 132 Md. 178, 103 All. 476, 17 N. C. C. A. 252, 2 W. C. L. J. 87. 46. Lindquest v. Holler, 164 N. Y. Supp. 906. 178 App. Div. 317. 14 N. C. C. A. 432. Stolte v. N. Y. State Sewer Pipe Co., 179 N. Y. App. Div. 949, 165 N. Y. S. 1114. 751 302 WORKMEN'S COMPENSATION LAW that the employee was suffering from a diseased condition which was aggravated by the accidental injury, and the death was proxi- mately due to an injury arising out of the employment. 47 In an action to recover compensation for appendicits alleged to have been caused by a severe shaking during the course of em- ployment, it was held that the appendicits was directly traceable to an accidental injury arising out of the employment. 48 An employee received an electric shock in the course of his em- ployment, and a doctor testified that his subsequent death was due to septic peritonitis, caused by a lesion of the intestines resulting from the electric shock. But the commission held that the pre- ponderance of the evidence tended to establish that the death was proximately caused by acute appendicitis, and therefore was not due to an accident arising out of and in the course of the em- ployment. 49 A carpenter strained himself while lifting a radiator weighing 300 pounds. A physician testified that his subsequent death was due to the strain causing intestinal obstruction and appendicitis. It was held that the injury arose out of the employment." 302. Apoplexy. Claimant was engaged in placing heavy barrels in tiers in a cooler. After lifting a heavy barrel he com- plained of a severe pain in his head, and was seized with a stroke of apoplexy. It was contended that the injury suffered was not due to an accident arising out of the employment, but was the natural result of an inherent physical defect which manifested itself while claimant was pursuing his regular employment. The court held that claimant had sustained an accident, and that the accident arose out of and in the course of employment. 51 An employee engaged in making bullion suffered from paraly- sis due to a cerebral hemorrhage and rupture of a small blood- 47. Woods v. Wilson Sons & Co. Ltd., (1915), W. C. & Ins. Rep. 285, 8 B. W. C. C. 288, 10 N. C. C. A. 759. 48. Enman v. Dalzil, 50 Scot L. R. 143, 6 B. W. C. C. 900. 49. Merriman v. Scovill Mfg. Co., 1 Conn. C. D. 596. 50. McGuigan v. Maryland Casualty Co., 1 Mass. I. A. Bd. 438. 51. Fowler v. Risedorf Bottling Co., and In re Zurich General Accident & Liability Ins. Co., Ltd., 175 N. Y. App. Div. 224, 161 N. Y. S. 535, 14 N. C. C. A. 533. 752 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 302 vessel ir the brain, brought on by long hours of work and exces- sive hep*. It was contended by defendant that the bursting of the blood vessel was due to a clogging of the blood vessel which resulted from a diseased condition of the arteries. The applicant contended that it was due to a diseased condition of the arteries which would likely result in a bursting of the bloodvessel when subjected to the unusual risk of long hours of work and the ex- cessive heat, and that claimant intended to do the long hours of work, but that in doing so he did not anticipate that his blood pressure would be so increased as to result in a rupture of a bloodvessel. The court held that the paralysis was due to the' bursting of the bloodvessel, which bursting was caused by the un- usual conditions under which claimant was compelled to work. Therefore the injury was proximately due to an accident arising out of and in the course of the employment. 52 A collier, who was performing heavy work, was suddenly siezed with apoplexy and died, and there was evidence that the arteries were in such a degenerated condition as to be likely to rupture at any time. The evidence was equally consistent with a finding that an accident did or did not happen and the court held that the onus of proving that an accident occurred in the course of and arising out of the employment had not been discharged. 53 An employee, whose duties included prompt action on his part in case of accidents, died from apoplexy while rushing to the scene of an accident to an employee who was not in the employ- ment of his employer but who was performing work on his em- ployer's premises. The court found that decedent's duties includ- ed his prompt attendance, in cases of any accident occurring in the works, either personally or by telephonic communication with a doctor. Therefore decedent did not put himself outside of the scope of his employment in going to the aid of the injured em- ployee. 8 * 52. La Veck v. Park Davis & Co., 190 Mich. 604, 157 N. W. 72, 12 N. C. C. A. 825. 53. Barnabas v. Bersham Colliery Co., 103 L. T. 513. 55 Sol. J. 63, 4 It. W. C. C. 119. 7 N. C. C. A. 651. 54. AJtken v. Pinlayson, Bousfleld ft Co., Ltd., (1914), W. C. ft Ins. 753 W. a 48 302 WORKMEN'S COMPENSATION LAW The applicant, a fireman employed on a steamer while in the tropics, went to work in a coal bunker where the heat was in- tense. Later he was found outside the bunker in a fit which accord- ing to the medical testimony resulted from a hemorrhage, but nothing was said to the effect that the hemorrhage was caused by an accident arising out of the employment. The arbitrator found that the hemorrhage did not result from an accident arising out of the employment, and, there being evidence to sustain his find- ing, it was not disturbed on appeal. 55 Where an employee, engaged in chasing thieves who were carrying off his employer's property, died from apoplexy brought on by the overexertion, it was held that the accident arose out of and in the course of his employment. "It is intimated in the re- port of the Chief Medical Examiner that had the decedent been in good physical condition he would not have died from the ef- fects of exertion. Assuming this to be true from a medical stand- point, the fact remains that he did die, that the cause of his death was cerebral hemorrhage or apoplexy and that it was brought on by overexertion. While the decedent's physical condition may have been and doubtless was partly responsible for his death, it was the exertion and excitement engendered by the pursuit of , the two theives which really caused the decedent's death." 56 Apoplexy occurring in the absence of an accidental injury ag- gravating a pre-existing diseased condition or bringing on the apoplexy as a direct result of the injury, cannot be said to be a personal injury arising out of the employment. 57 A fireman fell from the cab of a locomotive and later died as the result of a hemorrhage of the brain. He had a predisposition to apoplexy. It was held that there was sufficient evidence to justify the board in finding that the death was due to the acciden- Rep. 398, (1914), 2 Sc. L. T. 27, 51 Sc. L. R. 653, 7 B. W. C. C. 918,10 N. C. C. A. 485. 55. Olson v. "Dorsett" (Owners of), (1913), W. C. & Ins. Rep. 604, 6 B. W. C. C. 658. 56. In re Fair Ohio Ind. Comm., (1914), 7 N. C. C. A. 651. 57. Ledoux v. Employer's Liab. Assur. Corp., 2 Mass. I. A. Bd. 493. 754 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 304 tal fall, and therefore due to an accident arising out of the em- ployment. 58 303. Apprentice. A minor was employed as an apprentice to learn to run, an electric elevator. He had no license, so he was placed under the tutelage of a regular operator. After a weeks experience he operated the elevator alone and took the elevator to a certain floor, left it, and went on an errand. During his ab- sence the elevator was moved, and when he returned he stepped through the door and fell, sustaining injuries. He settled with his employer arid his settlement was approved by the district court. His father brought this action, regarding the settlement as a nullity, claiming that the relation of master and servant did not exist between the minor and the defendant, because the em- ployment was illegal, in that the minor was prohibited by law from operating the elevatoi without a license. In affirming a judgment of dismissal, the court held that, as the minor was working as an apprentice, his employment was not illegal because he had no license, and on this question the court said: "This disposes of the case, though we may add in conclusion that sec- tion 34 of the compensation act (section 8230, G. S. 1913), by which the statute is made applicable to minors 'who are legally permitted to work under the law of this state,' was intended to exclude from the statute minors whose employment is prohibited by law. Section 3848, 3871, G. S. 1913. Plaintiff's son was not in this class. He lawfully could be employed in this sort of work, if qualified and possessing the necessary license." 59 Where an apprentice suffered a mutilation of his hand, and afterward secured work at reduced compensation, but was dis- charged for misconduct, the court refused to terminate compen- 58. Peoria Railroad Terminal Co. v. Industrial Board. 279 111. 352. 15 N. C. C. A. 632. 116 N. E. 651; State ex rel Geo. D. Taylor & Sons v. District Court of Ramsey Co. Minn. . (1920). 179 N. W. 217, 6. C. L. J. 698. Note: For the Courts opinions pertaining to the accident phases of the foregoing cases see the same cases 142, ante. K9. Pettee v. Noyes. 133 Minn. 109, 157 N. W. 995, 15 N. C. C. A. 727. 755 304 WORKMEN'S COMPENSATION LAW sation in the absence of a showing by the employer cftat other work was procurable. 60 A night watchman, who was paid for this work only, was allow- ed to study the firing of his employer's locomotive after work hours, in order that he might fit himself for a position of fireman when a vacancy would occur. It was customary to have men fit themselves in this way so that the company's own men would be qualified for advancement when vacancies occurred. It was held that the accident arose out of the employment. 61 304. Asphyxiation. A night watchman, when intoxicated, neglected his duty and went into a washroom of the plant to sleep, lighted the gas heater, closed all openings and went to sleep. Later he was found asphyxiated. The court held that de- ceased's conduct placed him outside the scope of his employment, and that his death was not due to an accident arising out of the employment. 62 A night watchman, who was employed to guard gas trenches, was found dead in a place where the gas odor was very strong. The board, in the absence of any direct evidence as to the cause of the death, held that the natural inference, deducible from the facts shown, was that deceased came to his death through acci- dental asphyxiation. On appeal the court held that there was a presumption that deceased did not commit suicide. In the absence of evidence to the contrary, the showing that deceased was where he had a right to be raised a presumption that death was due to an accident arising out of the employment. 63 When an employee, whose duties required him to drain water from a pipe used in washing gas, was found dead at the place where he performed this work, and the medical evidence tended to show that death might ensue by a sudden inhalation of such 60. Wilson v. Jackson Stores Ltd., (1905), 7 W. C. C. 122 C. A. 61. Gardner v. Sierre Nevada Wood and Lbr. Co., 2 Cal. I. A. C. 856, 12 N. C. C. A. 666. 62. Roebling's Sons Co. v. Indus. Ace. Comm., 36 Cal. App. 10, 171 Pac. 987, 16 N. C. C. A. 891, 2 W. C. L. J. 38. 63. Manziano v. Public Service Gas. Co., 92 N. J. L. 322, 105 Atl. 484, 18 N. C. C. A. 1025, 756 ACCIDENT ARISING OUT OF COUBSE OF EMPLOYMENT. 304 gas, the court held that the board was justified in finding that the accident arose out of the employment. 94 A laborer was found in a test room asphyxiated by gas. There was no evidence, either direct or circumstantial, as to why dece- dent entered the room. It was held that the burden of proving that the death was due to an accident arising out of and in the course of the employment had not been discharged. 65 An employee entered a wine vat, without testing for gas, and was asphyxiated. It was customary to test for gas before enter- ing. There was no evidence as to whether or not a test had been made. The court held that the evidence was not sufficient to es- tablish such willful misconduct on the part of deceased as to pre- vent the injury from being considered to have arisen out of the employment." 9 Where an engineer on board a ship, who was cautioned against the danger of asphyxiation resulting from having a fire in his cabin at night, did light one on a cold night and was suffocated thereby, it was held that the necessity of having a fire on board the ship was not as great as the hazard such action would expose the engineer to, and that it was unreasonable conduct on his part to disregard the instructions, therefore the accident did not arise out of the employment. 97 Where a traveling salesman was asphyxiated by escaping gas in the hotel while asleep, his death was due to an ordinary hazard of living.and was not due to an accident arising out of and in the course of the employment. 98 64. Holnagle v. Lansing Fuel and Gas. Co.. 200 Mich. 132, 166 N. W. 843. 1 W. C. L. J. 1010, 17 N. C. C. A. 788. 65. Gray v. Sopwlth Aviation Co., Ltd., (1918), W. C. ft Ins. Rep. 237 119 L. T. R. 194, 17 N. C. C. A. 939. 66. United States Fidelity ft Guarantee Co. v. Indus. Ace. Comm. of Cal., 174 Cal 616, 163 Pac. 1013. 15 N. C. C. A. 149, A 1 W. C. L. J. 215. 67. Edmunds v. S. S. Peterson, 28 T. L. R. 18, 5 B. W C. C. 157. 68. Reed v. Booth ft Platt Co., 1 Conn. Comp. Dec. 121; Kehoe v. Consolidated Telegraph ft Elect. Subway Co., 176 N. Y. App. Div. 84. 165 N. Y. S. 481, 16 N. C. C. A. 640; Kass v. Hlrschberg. Schultz ft Co . 191 N. Y. App. Div. 300, (1920). 181 N. Y. S. 35, 5 W. C. L J. 879. t 757 305 WORKMEN'S COMPENSATION LAW In the same kind of case the New York Court said: "The act provides (section 3, subd. 7), that 'injury' and 'personal injury' mean only accidental injuries arising out of and in the course of employment, and surely the accident here under consideration did not arise out of the. employment. The accident arose out of the negligence, not of the master, but of a third party. It wa's not a whit different than an accident of the same character which might have happened at the decedent's own home after his days work was done. While the statute as amended by chapter 622 of the laws of 1916, has enlarged the liability of the employers, it has not had the effect of insuring their employees generally against those accidents which are common to mankind ; It is only as to accidents 'arising out of and in the course of employment.' Matter of Dose, Moehle Lithographic Co., 221 N. Y. 401, 405, 117 N. E. 616. "The act does not afford compensation for injuries or misfor- tunes which merely are comtemporaneous or coincident with the employment, or collateral to it. Not every diseased person, suffer- ing a misfortune while at work for an employer, is entitled to compensation. The personal injury must be the result of an em- ployment and flow from it as the inducing proximate cause. The direct connection between the personal injury as a result and the employment as its proximite cause must be proved by the facts before the right to compensation springs into being. Madden 's Case, 222 Mass. 487, 111 N. E. 379, L. R. A. 1916D, 1000 ; Matter of Alpert v. Powers, 223 N. Y. 97, 101, 102, 119 N. E. 229. The ac- cident here under consideration had no relation to the employ- ment, the decedent was not doing anything for the employer at the time of the accident, and there is no ground for this award." 69 305. Assisting A Fellow Employee, Employee of Another Em- ployer or A Stranger. Where a janitress in a hotel undertook to clean a light well, which was part of the duties of another janitor, and was injured by a fall which resulted in her death, the 69. Kass v. Hirschberg, Schultz & Co., 191 App. Div. 300, (1920), 181 N. Y. Supp. 35, 5 W. C. L. J. 79. 758 ACCIDENT ARISING OUT OP COURSE OF EMPLOYMENT. 305 court held that in attempting to clean the light well, which was an undertaking merely to assist another employee, who was ill, and a very dangerous task for a woman to perform, deceased placed herself outside the scope of her employment, and was not injured by an accident arising out of her employment, even though the work attempted would have been in the interest of tl*e employer. 70 An employee lived in a house rented from his employer. His wife conducted a restaurant for the defendant in its office build- ing. She requested her husband to carry a basket of linen from the house to the restaurant, and while going from his residence to the street he came in contact with a live wire and was killed. Plaintiff received a judgment in an action at law. On appeal it was contended that deceased was employed to assist his wife and, therefore, in carrying the linen he was doing his master's work. Deceased's duties were those of a janitor in the building. The evidence was conflicting as to whether deceased's contract of em- ployment included the assisting of his wife in her work. The court found that deceased was not in the course of his employ- ment, and therefore the controversy did not come under the com- pensation act. 71 A load of coal became mired, and the team hitched thereto was unable to remove it. The driver requested plaintiff, a passerby, to assist in removing it and while so doing he was injured. It was held that the driver had implied authority to employ some- one for this temporary purpose, and the plaintiff became the em- ployee of the coal company for the purpose of rendering this as- sistance and was entitled to the protection of the Minnesota Work- men's Compensation Act. 72 70. Williamson v. Indus. Ace. Comm. of Cal., 177 Cal. 715, 171 Pac. 797, 16 N. C. C. A. 884. 71. Murphy v. Ludlum Steel Co., 182, App. Div. 139, 169 N .Y. S. 781, 16 N. C. C. A. 901, 1 W. C. L. J. 1122. 72. State v. Ramsey County, 138 Minn. 416. 165 N. W. 268, 1 W. C. L. J. 642; In re Lev! Chance, 3rd A. R. If. S. C. C. 166; In re Geo. Boiler, 3rd A. R. U S. C. C. 167. 759 305 WORKMEN'S COMPENSATION LAW An employee was injured, after receiving his wages, while as- sisting in placing a threshing machine on the road after the com- pletion of a job. The evidence tended to show that it was custom- ary for the employees who followed the machine from job to job to assist in placing the machine cut on the highway after finish- ing a job. The court held that applicant's contract of service an- ticipated a compliance with this established custom, and therefore the accident arose out of his employment. 73 "Where a carpenter employee in a laundry was killed while per- forming work for one of the individual stockholders, according to a usual custom of the laundry, and at the time of his death he was acting under the express directions of the officers of the cor- poration, it was held that the accident arose out of and in the course of the employment. 74 Where an employee of a corporation, who was loaned to a di- rector to do some work for the director on his own premise and at his direction and supervision, was injured while performing this work, it was held that the injury did not arise out of and in the course of the employment. 76 Where an employee was injured while making deliveries of cigars for the accommodation of his employer after work hours, it was held that the injury arose out of the employment. The court said: "The employee's act was not mere friendship, it was the relation of employer and employee, that led one to request the service and the other to render it. If such service is not incidental to the employment within the meaning of the statute, loyalty and helpfulness have earned a poor reward." 78 Two butcher boys were employed on a wagon, and one fell off and was injured. A bystander volunteered to ride home on the wagon in order to assist in caring for the injured boy. On the way home the volunteer bystander fell off and was injured, and 73. Newson v. Burstall, (1915), W. C. & Ins. Rep. 16, 15 N. C. C. A. 218. 74. English v. Cain, 2 Cal. I. A. C. 399, 11 N. C. C. A. 376. 75. In re Jones, 1 Bull. Ohio Ind. Comm. 57; Carnahan v. Mailometer Co., 201 Mich. 173, 167 N. W. 9, 1 W. C. L. J. 1045. 76. Grieb v. Hammerle, 181 N. Y. App. Div. 911, 118 N. E. 805, 222 N. Y. 382, 1 W. C. L. J. 846. 760 ACCIDENT ARISING OUT OP COURSE OF EMPLOYMENT. 305 sought to hold the master liable on the ground of implied authori- ty of the driver to hire a person in the case of an emergency. The court held that there was no such implied authority, and dismiss- ed the case. 77 Where an employee was injured while posting a letter for his employer, although the regular duties of the employee did not in- clude such services, it was held that the accident arose out of the employment. 78 Deceased, a chief clerk in the freight auditing department of a railroad office, was injured while enroute to another office to as- sist in straightening out the books of the latter office. On the way an intending passenger was injured and deceased alighted to ren- der assistance. "When the injured party was cared for deceased attempted to board the moving train and fell, sustaining injuries resulting in his death. In reversing an award for compensation, and holding that the accident did not arise out of deceased's em- ployment, the court said: "The transcript of evidence will be searched in vain to discover one word arising to the dignity of evidence, to establish the statement that the deceased alighted from the train 'to be available in case his services should be use- ful,' or that if he did that it was any part of his express or im- plied duties as an employee of the defendant to do so. The testi- mony of the president and general manager of the road was taken at great length. That testimony is positive and uncontradicted, that there was no rule, written or unwritten, and no custom, whereby employees riding upon a train other than and outside of the train crew were called upon or expected to enter into an in- vestigation in case of an accident, to secure the names of witness- es, or to perform any like service." 79 An employee, whose duties were to shovel gravel, exchanged work with a teamster who was out in the rain and had become 77. Houghton v. Pilkington, 107 L. T. R. 235. 78. Wooley v. Geneva Cutlery Co., 181 N. Y. App. Div. 909, 167 N. Y. S. 1134; Swanick v. Saratoga Milling & Grain Co., 181 N. Y. App. Div. 911, 167 N. Y. S. 1129 (N. Y. Bull, for June, 1918). 79 Northwestern Pac. R. Co. v. Indus. Ace. Comm., 174 Cal. 297, 153 PUG. 1000, 15 N. C. C. A. 219. 761 305 WORKMEN'S COMPENSATION LAW wet. While driving the gravel wagon the team ran away, threw applicant from the wagon and injured him. The board found that there was a custom among the employees to exchange work and awarded compensation. The court on appeal held that in ex- changing work applicant clearly placed himself outside the scope of his employment, unless such custom was known and assented to by the employer. The court further found that there was no evidence to justify a finding that the custom existed to the know- ledge of the employer, and therefore applicant's injury did not arise out of the employment. 80 A company employed a night watchman to look after an en- gine, to keep it alive, and have it ready for the workmen in the morning. The superintendant took the engine on a certain night and relieved the watchman. Another watchman was employed to care for a steam shovel, and on this night he requested deceased to relieve him while he visited his folks. Deceased complied with the request and was murdered while on watch. The evidence ten- ded to snow that deceased was acting without permission on this occasion, but that such permission would have been granted if applied for. The court, in annulling an award, said that deceas- ed was acting without even the implied authority of his employ- er, assuming new duties when there was no emergency for doing so, and going to a place where he had no right to be. Therefore "our conclusion is that the injury which caused the death of de- ceased did not arise out of nor in the course of his employment. Indeed, the case presented is precisely the same as though de- ceased had at the close of his night's labor repaired to his home and while awaiting a return of the time to assume his duties he had been murdered." 81 A general laborer about a canning plant sustained injuries which resulted in his death, when he responded to an elevator operator's call for assistance. Deceased's duties necessitated that he operate the elevator himself at times, but at the time of 80. Modoc County v Indus. Ace. Comm. of Cal., 32 Cal. App. 548, 163 Pac. C85, 15 N. C. C. A. 280. 81. Robert Sherer and Co. v. Indus. Ace. Comm., 175 Cai. 615, 166 Pac. 318 ,15 N. C. C. A. 281. 762 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 306 the accident another person was in charge of the elevator. In affirming an award, the court said: "It is doubtless true that the facts would not support a judgment under the common law, nor under the Employers' Liability Act. * * * (Labor Law (Consol. L. c. 31; L. 1909, c. 36) art. 14, as amended by L. 1910, c. 352.) ; but the workmen's compensation act contemplates charging the industrial life of the state with the burden of accidents to such industry, within the limits fixed by the act, and we are not pre- pared to hold that a common laborer is not in 'the course of his employment' when he steps aside from his immediate employ- ment to give an incidental aid to a fellow employee in the opera- tion of a freight elevator, which is operated in common by all of the employees. It does not appear that the elevator had been broken or damaged ; merely that it had ceased to respond to the operating cables, and to say that a man who is at work near the point may not lend a hand in starting this elevator without sacri- ficing his rights under the law is too narrow a construction to apply in the construction of the statute. If the decedent had himself been using the elevator as Kelley was doing and this was among his duties there would have been no doubt of his being protected while trying to start the elevator, even though Hills Bros. Company (defendant) had employed an engineer to make repairs, and no good reason suggests itself why he might not have left his boiling pots for a few moments to aid a fellow laborer in an effort to start this same elevator." 82 Where an employee was caught in a cave-in and killed when he sought to rescue an employee of another contractor from danger, it was held that the accident arose out of the employment. 8 * "VVhere an employee attempted to rescue fellow employee's from an accident where many were killed, and became insane as a result of the mental and emotional shock, the commission found 82. Martucd v. Hills Bros. Co., 171 N. Y. App. Dlv. 370. 156 N. Y. 8. 833. 15 N. C. C. A. 282. 83. Mihaica v .Mlagenovich & Gillespie. 1 Cal. Ind. Ace. Com in. Dec.. (1914), 174, 10 N. C. C. A 47,'. 763 305 WORKMEN'S COMPENSATION LAW that the insanity was due to an accident arising out of the em- ployment. 84 A laborer in a brick supply company responded to a fellow em- ployee's request for assistance in placing a derailed car back on the track, and was injured while so doing. No one in authority commanded applicant to assist in the undertaking, and there was no one present to supervise the work. It was held that the acci- dent arose out of and in the course of the employment. 85 Deceased, a bobbin stripper, left his machine to remove waste that had accumulated on another's machine, and in doing so sustained the injuries that resulted in his death. The board award- ed compensation, stated that it disbelived all the testimony as to the circumstances surrounding the accident, and found that de- ceased was caught in a belt while on his way to the toilet. On. appeal this finding was reversed, the court holding that the board could not, in the absence of evidence, infer that the belt suddenly left the pulley and lashed against deceased as he passed on his way to the toilet, and therefore there was no evidence to sustain the board's finding that the accident arose out of the employment. 88 A number of employees of different employers were all deliver- ing bags of glucose at one warehouse. A custom existed that where a number of wagons arrived at one time, all the employees would join in assisting to unload and store away the bags, although the employer's only agreed to deliver the bags to the consignee's tackle. The carters received compensation from the warehouse men for helping to store the bags. Claimant was injured while helping to unload the cart of another. It was held that the acci- dent did not arise out of the employment. 87 An employee, while on an errand for his employer, stopped to render assistance to a horse which had been overcome by the heat. While doing so the horse fell upon and broke the leg of the em- 84. Reich v. City of Imperial, 1 Cal. I. A. C. D., (1914), 337, 10 N. C. C A. 479; Waters v. Wm. J. Taylor & Co., 218 N. Y. 248, 112 N. B. 727. 85. Ferguson v. Brick & Supplies, (1914), 7 B. W. C. C. 1054. 86. In re Dube, 226 Mass. 591, 116 N. E. 234, 15 N. C. C. A. 283. 87. Wm. Sinclair v. Carlton, (1914), Sc. Ct. of Sess. 7 B. W. C. C. 937. 764 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 307 ployee. Tt was held that the injury was not sustained in the course of the employment. 88 Where a laborer was injured while assisting another employee to replace a belt on a pulley, it being none of the special duties for which applicant was engaged, but under the facts found such work was not truly outside the scope of his employment, the court held that the act of the workman was a natural and helpful intervention in the conduct of his master's business, and accord- ingly the accident arose out of and in the course of the employ- ment. 89 An employee offered to assist his superior in the performance of duties which were clearly the duties of the superiors, and his offer was accepted. He was injured while so doing. The court said that the voluntary offer of a servant to make himself useful in a matter not covered by an express command, where such offer is accepted by the superior, although not by an approval express- ed in words, it cannot be said that, as a matter of law, the servant placed himself outside the scope of his employment. 90 Where a carpenter became involved in a fight over the pro- tection of his property, and his brother, who was employed by him, went to his assistance and while he was keeping others off was injured, it was held that the injury did not arise out of the em- ployment, no matter how commendable his actions in the protec- tion of his brother might have been." 1 Where an assistant cutter in a shirt waist factory was fatally \\numled by strikers while trying to save his employer and other employees from injury, his injury arose out of and in the course of the employment. 92 88. In re Verkamp, 1 Bull. Ohio Ind. Comm. 123, 12 N. C. C. A. 907. 89. Menzies v. McQuibban, 37 Sc. L. R. 526, (1900), 10 N. C. C. A. 480. 90. Miner v. Franklin County Tel. Co., 83 Vt. 31 J. 75 Atl. 653, 26 L. R. A. (N. S.) 1195. 91. Clark v. Clark, 189 Mich. 652, 155 N. W. 507,11 N. C. C. A. 240; Collins v. Collins, (1907), 2 Ir. Rep. 104, 6 N. C. C. A. 1025; In re G. M. Armstead, Op. Sol. Dep. C. & L. pg. 240. 92. Baum v. Indus. Comm., 288 X I11. 616, 123 N. E. 625, 4 W. C. L. f. 357, IS N ('. C. A. 1053. 765 305 WORKMEN'S COMPENSATION LAW A master mechanic who was informed that one of his employees was attempting to p'ull a truck out of a ditch, went to help the employee, and while on the way was struck by a train and killed. It was held that the death arose out of the employment. 93 A truck driver was putting wood into a building of a customer by means of a hand elevator. Something went wrong with the elevator and an employee of the customer endeavored to fix it, requesting claimant's assistance. While assisting in the fixing of the elevator a splinter flew and struck him in the eye. It was held that the accident arose out of the employment. 94 A driver of a milk wagon went to the assistance of another driver working for a different employer, when a horse of the latter had fallen. While assisting in getting the horse on his feet, the fallen horse kicked and injured him. There was a well established custom, known to the employers, that the milk drivers would go to the assistance of one another. It was held that the accident arose out of and in the course of the employment 95 Applicant, a steel dresser, was instructed by his superior to assist another employee, should she have any trouble with her machine. She called upon applicant to do some work upon her machine and while adjusting a nut he fell into the saw. The court held that the accident arose out of applicant's employment, for he was doing the very thing lie was supposed to do, and al- though he may have been negligent or reckless, his conduct was not such as to disentitle him to compensation for the injury sus- tained. 00 A forest ranger, shot and killed while assisting a sheriff, upon request, to arrest a deserter from the United State Army, was awarded compensation. 97 93. Iu re Pennington, Ohio Ind. Coirnn., (1915), 12 N. C. C. A. 249. 94. Kaspar v. Clark & Wilkins Co., (1916), 7, N. Y. St. Dep. Rep. 454. 95. Niles v. Walnut Grove Creamery Co., (1916), 3 Cal. I. A. C. 305. 96. Cars v. Vickers, Ltd., 120 L. T. R. 465, (1919), 18 N. C. C. A. 1031; 97. In re Rudolph E. Mellenthin, 3rd A. R. U. S. C. C. 107. Note: For further cases on this subject see "Volunteers.' Emergencies," and "Accidents to employees whose conduct while performing duties for the master places them outside the scope of employment." 766 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 306 The court in holding that an accident did not arise out of the employment -said : "Defendant was an employer and was under the Compensation Act and was engaged in the conduct of his business. Plaintiff and his employer were likewise under the Compensation Act. Plaintiff was driving an automobile belonging to his employer. The automobile had been assigned to another employee of the same employer, but one doing business in other territory, and was being taken by plaintiff from a railroad station at the request of this fellow employee and solely as an accommo- dation to him. The evidence sustains a finding that the accident did not arise in the course of plaintiff's employment and that the case is not within the third party provision of the Minnesota Compensation Act. 08 Whore one of two brothers who were working together was di- rected to fill a tank with wax from an oil room, the death of the other while assisting without having been expressly ordered to do so, was held to have arisen out of the employment. 00 306. Bite of Animals. An employee was bitten by a factory watch dog while performing his duties, and brought an action at law. A judgment in plaintiff's favor was reversed, because it did not appear clearly that the compensation act was not applicable. After remarking that because of the lapse of time it would be presumed that the dog remained on the premises with the permission of the defendant, the court said: "There is no doubt that the plaintiff was engaged in performing the duties of his employment at the time he was bitten. The presence of the dog, with defend- ant's implied knowledge and consent, was one of the physical conditions of the plant under which the defendant required the plaintiff to perform his duties The mere fact that the direct cause of the injury was animate, rather than inanimate, does not alter the result ; nor in this view can I see any force in the suggestion that the dog was not especially kept as a watchdog, or for some similar purpose (though I think the proof showed that it was so employed.) The right of the plaintiff to a recovery does not, 98. Gibbs v. Almstrom, Minn. , (1920), 176 N. W. 173, 5 W. C. L. J. 541. 99. Milne v. Sanders, Tenn. , (1921) 228 8. W. 702. 767 307 WORKMEN'S COMPENSATION LAW. on any theory of which I am made aware, depend upon the comparative usefulness to the employer's business of the immed- iate cause of the injury." 1 A workman, while eating lunch, was bitten by a cat, which was kept about the stables. The bite resulted in blood poisoning. It was held that the accident arose out of the employment. 2 Where a workman while attending to his duties was bitten by a mad dog, it was held that the injury occurred during the course of the employment, and compensation was awarded. 3 Claimant, while returning to work from dinner, was bitten by a mad dog. It was held that the accident did not arise out of the employment. 4 Where a brewery employee, whose duties included delivering beer to customer's homes, was bitten by a bulldog while making a delivery, it was held that he had sustained an injury arising out of the employment. 5 Injury by dog bite, while one employed to deliver packages is making a delayed delivery in the morning, while on his way be- tween his home and the place where the vehicle utilized by him in his work is stored, to procure it for his day's work, is held to arise out of the employment within the meaning of the. Utah Work- men's Compensation Act. 6 307. Bites and Stings From Insects and Reptiles. An em- ployee suffered from infection following insect bites. About two years later he died from heart trouble and septicaemia. Applicant contended that the death was due to the infection following the insect bites. Medical testimony was to the effect that death was not caused by such infection, as the effect of the insect stings had passed off very rapidly, since the infection penetrated no deeper 1. Brone v. Brambach Piano Co., 101 N. Y. Misc. 669, 167 N. Y. S. 933, 15 N. C. C. A. 229; Hapelman v. Poole, (1908), 25 T. L. R. 155, 2 B. W. C. C. 48. 2. Rowland v. Wright, (1908), 1 B. W. C. C. 192. 3. Re E. E. Bailey, Op. Sol. Dep. C. & L. p. 232. 4. Re Alexander Green, Op. Sol. Dep. C. & E. p. 223. 5. Re Wm. Miller, 1 Bull. Ohio Ind. Com. 789. 6. Chandler v. Indus. Comm., Utah , 184 Pac. 1020. 768 ACCIDENT ARISING .OUT OP COURSE OP EMPOYMENT. 308 than the surface of the body. The board found that the death was not due to an accident arising out of the employment. 7 Bites by poisonous insects, reptiles, and animals are industrial accidents only where the injury arises out of and in the course of the employment, and the nature of the employment exposes the employee to a greater hazard of being bitten because of the nature of the employment. So, where a woman employed in a cannery was bitten by a spider during the noon hour while she was eating lunch, it could not be held that she sustained an injury arising out of the employment, in the absence of evidence that her employment exposed her to a risk, of being bitten, greater than the risk common to the public at large. 8 An injury to a workman, who was stung by a wasp while driving a threshing machine, and as a result thereof died from blood poisoning, did not arise out of the employment, but was a risk to which the employee, as well as all others, were exposed at all times. 8 A lady's maid was sewing in a room when a cockshafer flew into the room. In trying to drive it away, she injured her eye. It was held that the accident did not arise out of the employment. 10 A "Spieler" for an amusement show was bitten by a gila monster that he was exhibiting to induce a crowd to patronize the show. It was held that the accident arose out of and in the course of the employment. 11 308. Bone Felon. An employee developed a bone felon while putting strips in metal frames by the use of pliers. The felon 7. Campbell v. Aetna Life Ins. Co., 2 Mass. Wkinn. Comp. Cas. 701, 11 N. C. C. A. 607. 8. Goodwin v. Libby McNeill & Libby, 2 Cal. I. A. C. D.. (1915). 211, 10 N. C. C. A. 275; Sterling v. J. B. Inderredian Co., 2 Cal. I. A. C. D., (1915), 172, 10 N. C. C. A. 276. 9. Amys v. Barton, (1912), 1 K. B. 40, 3 N. C. C. A. 281. |1912), W. C & Ins. Rep. 22, 5 B. W. C. C. 117. 10. Craske v. Wigan, 2 B. W. C. C. 35, (1909). 11. Merritt v. Clark & Snow, 2 Cal. Ind. Ace. Com. 910, 12 N. C. C. A. 474. 769 W. C. 19 309 WORKMEN'S COMPENSATION LAW was a gradual development from the continuous us of the pliers. In denying that the claimant's injury was due to an accident arising out of the employment, the court said: "In the instant case the workman was doing the work he was employed to do, had done for nearly six years, in the way he was employed to do it, and in the way it had been done by him for a long time. That the work done by a laborer one day is harder than on other days is not an accident within the meaning of the act. There is no evidence in the record of the intervention of any untoward or accidental happening producing the injury. There was no blow or sudden strain. The felon was developed by the continuous use of the pliers." 12 309. Brights Disease. . An employee was injured, and later developed diabetes. There was no evidence that claimant was suffering from the disease prior to the accident, but on the con- trary the evidence showed that he was a strong healthy man. The board found that the disease was due to the accidental injury and awarded compensation. On appeal the court held that the finding of the board was not based on mere conjecture, in view of the evidence that prior to the accident claimant was a strong healthy man. 13 An employee was injured, and five days later developed acute Brights disease, but there was no blood in the urine or any other indication of physical injury. It was held that there was no evi- dence that the injury was the cause of the Bright 's disease, and further the medical testimony was to the effect that acute Bright 's disease is probably never due to traumatic origin. Therefore the disease was not due to an accidental injury arising out of the em- ployment. 14 An employee suffered an accidental strain while pulling burlap, and later developed Bright 's disease. The evidence showd that 12. Perkins v. Jackson Cushion Spring Co., 206 Mich. 98, (1919), 172 N. W. 374. 13. Balzer v. Saginaw Beef Co., 199 Mich. 374, 165 N. W. 758, 15 N. C. C. A. 645. 14. Husvick v. Simms, 1 Cal. I. A. C. D. 266. 770 ACCIDENT ARISING OUT OP COURSE OF EMPOYMENT. 310 claimant was suffering from all the symptoms of Bright 's disease, including a diseased condition of the heart, lungs, and kidneys which had no causal connection with the injury. It was held that the evidence was insufficient to show that the disease was caused by an injury arising out of the employment. 15 A ship's cook, who was suffering from Bright 's disease necessi- tating frequent micturition, was last seen in the ships galleys, and would have to step outside to reach a urinal upon a deck guarded by a railing. The seas were rough. It was held that there was no evidence sufficient to prove that his disappearance was due to an accident arising out of the employment. 10 An employee was furnished with boots by his employer, and the boots produced an abrasion upon his heel. Germs entered through this abrasion and infection followed, causing Bright 's disease. It was held that the infection was due to the accidental injury arising out of the employment. 17 UO. Bums. An employee suffered an injury to his hand in the course of his employment, and had it bandaged by an agent of the employer, who poured turpentine over the bandage. Later, when the employee endeavored to light a cigarette, the saturated bandage became ignited and his hand was severely burned. The court held that such acts as are necessary to life, comfort, and convenience of the workman while at work, though personal to him- self, are incidental to the service and an injury sustained while performing any of them arises out of the employment. 18 Where a guard was severely burned in a wreck, which occurred uhile he was riding on his employer's train for his own purposes during his off hours, it was held that the accident did not ariv out of and in the course of the employment. 10 An employee in a hospital sustained severe burns when he was unable to escape from a room after a fire had broken out, because 15. Lima v. Aetna Life Insurance Co., 2 Mass. W. C. Cas. 800. 16. Burwash v. Leyland & Co., Ltd., (1912), 5 B. W. a C. 663, C. A. 17. Wheadon v. Red River Lbr. Co., 1 Cal. I. A. C. (Part II) 640. 18. Whiting Mead Commercial Co. v. Indus. Ace. Comm., 178 Cal. 505, 173 Pac. 1105, 2 W. C. L. J. 746. 19. Pierson v. Interborough Rapid Transit Co.. 102 N. Y. Misc. 130, 168 N. Y. S. 425, 16 N. C. C. A. 885. 771 311 WORKMEN'S COMPENSATION LAW of the alleged serious and wilful misconduct of the superintendant in charge, and claimed double compensation. The claim for double compensation was not allowed because of the failure to sustain the allegation of wilful misconduct. Compensation for the actual disability was awarded. 20 Where a stenographer was burned to death, when her means of escape was cut off by a fire on the lower floor, it was held that her death was caused by an accident arising out of and in the course of the employment. 21 An employee fainted after a quarrel with her employer. Other employees threw ammonia in her face, in the mistaken belief that it was water, and it resulted in burns and ulcers. It was held that the accident arose out of the employment. 22 Where a carpenter, who was subject to dizzy spells, suffered from an attack of dizziness while cooking lunch, and as a result, laid his hand upon a hot stove, it cannot be said that the injury was due to an accident arising out of the employment. 23 An employee burned as the result of carrying matches where there was no express provision against such practice, although smoking was prohibited, cannot, as a matter of law, be said to be without the protection of the act. 24 311. Cancer. A workman sustained an injury to his hand and blood poison followed. Two years later he sought compensation for a cancer on his penis which, he contended was caused by his impaired physical condition following the injury to the hand. The medical testimony failed to show any causal connection between the injury to the hand and the cancer which developed two years later. Therefore the injury did not arise out of the employment. 25 ^20. Keane v. Employers Liab. Assur. Corp., Ltd., 1 Mass. W. C. C. 193, (1913), 11 N. C. C. A. 558. 21. Newark Hair, etc. Co. v. Feldman, 89 N. J. L. 504, 99 AU.-602. 22. Saenger v. Locke, (1916), 9 N. Y. St. Dep. Rep. 330. 23. Neuberger v. Third Ave. Ry. Co., 183 N. Y. S. 348, (1920), 6 W. C. L. J. 485. 24. Steel Sales Corp. v. Indus. Comm., 111. , (1920), 127 N. E. 698, 6 W. C. L. J. 303. 25. Ortner v. Zenith Carburetor Co., (Mich.), (1919), 175 N. W. 122, 5 W. C. L. J. 273. 772 ACCIDENT ARISING OUT OF COURSE OF EMPOYMENT. 311 Claimant fell in the course of his employment and broke his thigh. The board found that the breaking of the bone and the subsequent fall was due to a cancerous infection and therefore did not arise out of the employment. On appeal the court said : "The evidence is wholly undisputed that the claimant had a ' pathological lYai-ture.' This is his own admission. Upon his being taken to the Roosevelt Hospital it was found that he had a osteosarcoma, popularly known as cancer of the bone, at the point of the fracture, and there is no dispute in the evidence that the amputation was made, not because of the fracture, but because of the diease. Dr. Gillespie testified, and there was no condradiction, that there was no visible injury to the outside of the leg that he could find, and that 'the leg was amputated because the growth was malignant/ that if the accident had occurred, as described, and there had been no sar- coma at that point, no amputation would liave been necessary. The diagnosis was made immediately after the accident, and the oper- ration took place within the eight days of the diagnosis, and the undisputed evidence is to the effect that the operation was for the purpose of curing the diseased condition of the leg, not because of the fracture. Indeed, the fair inference from the evidence is that the fracture was the result of the disease rather than of the accident, though it was inferentially admitted that the false step hastened the break. But the lass of the leg was clearly due to the diseased condi- tion, that disease was the only justification for the amputation, and the disease concedely existed before the accident and was, doubt less, the underlying cause of the fracture, for it is hardly conceiv- able that such a fall as the claimant describes could have result fl in a breaking of a thigh bone at its lower extremity. It is not shown that the claimant was bruised in any way ; he apparently fell forward down an incline of about 30 degrees and rolled to the bottom, with no other injury than the breaking of the diseased bone, and to charge this disease to the industry, simply because it became manifest by reason of this inconsequential fall, is an abuse of the purpose of the Workmen's Compensation Law, which 77:1 311 WORKMEN'S COMPENSATION LAW sought to insure against the inherent risks of certain classes of in- dustry." 26 An employee sustained a fall in the course of his employment, and a sarcoma or cancer appeared on his left clavicle a few hours later. The medical testimony was conflicting as to the possibility of a cancer being caused by the injury and making its appearance the same day of the injury. The board found that the cancer was due to the fall, and on appeal the court held that, in view of the conflicting testimony, the finding would not be distrubed. 27 Where an employee suffered a blow on the head, which drove a tooth through his tongue, and the wound later developed into a cancer, causing his death, the court denied compensation because of a failure to give notice of the injury. 28 Where a driver was thrown from a wagon, and accelerated an unknown cancer of the stomach causing his death, it was held that the death was due to an accident arising out of the employment. 29 Where an employee fell astride of a hot pipe, and the burns he sustained developed into a cancer necessitating an operation, com- pensation was awarded. 30 A falling chunk of coal struck a fireman on the leg just over a sarcoma of the bone, and made an amputation of the leg necessary. The commission allowed compensation on the ground that the blow aggravated a cancerous condition. The appellate court reversed the award on the ground that notice of the accident was not given. 31 An employee worked in a browning room where fumes of obnox- ious, poisonous gases were given off. He developed cancer of the 26. Brady v. Holbrook, Cabot & Rollins Corp., 178 N. Y. S. 504, (1919), 5 W. C. L. J. 91, 189 App. Div. 405. 27. Santa Ana Sugar Co. of Santa Ana v. Indus. Ace. Comm., 35 Cal. App. 652, 170 Pac. 630, 17 N. C. C. A. 877, 1 W. C. L. J. 745. 28. Potter v. John Welsh & Sons, Ltd., (1914), 3 K. B. 1020, W. C. & Ins. Rep. 607, 7 B. W. C. C. 738, 9 N. C. C. A. 1033. 29. Blatt v. Schonberger & Noble, 176 N. Y. App. Div. 924, 162 N. Y. S. 1111. 30. Richardson v. Builders' Exchange Assn., 179 N. Y. App. Div. 949, 165 N. Y. S. 1109. 31. Prokopiak v. Buffalo Gas Co., 176 App. Div. 128, 162 N. Y. S. 288. 774 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 311 liver and died. It was contended that the cancerous condition was brought about by the poisonous fumes. The medical experts denied that this was the cause of the cancer, and that the conditions necessary for the bringing on of cancer were not present. It was held that the burden of showing a causal connection between the conditions of employment and the cancerous condition had not been discharged. 32 Deceased was engaged in furrowing certain posts, pushing them against the knives by pressing his abdomen forcibly against them. After working in this manner for some time he sat down, and was evidently in great pain. He died three days later from hemor- rhages, which defendant claimed were produced by a rupture of an internal cancer. The court held that, though deceased was suffer- ing from a cancer, still the cause of the rupture was due to the unusual pressure, and hence the death was due to an accident aris- ing out of the employment. 38 A dock laborer was incapacitated for three months by a blow on the back. He underwent two operations for cancers of the kidney, and died in the second operation. The testimony regarding the origin of the cancer was conflicting. The court held that there was sufficient testimony to support a finding that the cancer was due to an injury arising out of the employment. 84 A butcher's canvasser was injured when the bicycle he was rid- ing skidded, and he fell. Two months later he was found to be suffering from a cancer, and the medical testimony was to the effect that the disease was brought on by the accident. It was held that the cancer arose out of the employment." An employee punctured his tongue with some tacks he was hold- ing in his mouth while putting up shade's. A cancer ' developed on his tongue, necessitating an operation, and he died under the 32. Alton v. Hopkins & Allen Arms Co., 1 Conn. C. C. D. 378; Marcon- tonio v. The Charles Francis Press, N. Y. Bull. Vol. 1, No. 12, pg. 16. 33. Voorh ses v. Smith Schoonmaker Co., 86 N. J. L. 600, 92 Atl. 280, Hose, v. City of Los Angeles, 2 Cal. I. A. C. D. 551. 34. Lewis v. Port of London Authority, (1914), 7 B. W. C. C. 577 C. A. 35. Howard v. Rowsell A Mathews, (1914), 7 B. W. C. C. 552. 775 312 WORKMEN 'S COMPENSATION LAW anaesthetic. It Avas held that his death was due to an injury arising out of the employment. 36 312. Carbuncle. Where an employee who was suffering from a carbuncle, received an injury to the carbuncle before it had ripened, and thereby caused septicaemia and disability, it was held that the disability was due to an accident arising' out of the em- ployment. 37 It was claimed that a carbuncle which affected the spine came from a blow on the back. Medical testimony was to the effect that carbuncles are not associated with germs introduced from without, but generally, if not always, come from internal poison- ing accompaning a run down condition, as was the case of this man. It was held that the claimant had not discharged the onus of proving that the carbuncle was caused by an accidental injury arising out of the employment. 38 313. Charity Workers and Persons Seeking Relief From Charity Injured. A blind pauper suffered a crushed hand, neces- sitating amputation of the three middle fingers, while working in the industrial department of a charitable institution. The institution depended upon charitable aid for its upkeep. The workmen were divided into three classes and paid for their labor. The arbitrator held that since the applicant was in receipt of charitable aid, he could not be said to be a workman. Upon appeal the court of sessions held that he was a workman within the meaning of the act, and suffered an injury arising out of his employment. 39 36. Cramer v. Littell, 38 N. J. L. J. 82. 37. Caine v. Greenhut & Co., 181 N. Y. App. Div. 907, 167 N. Y. S. 1091; Cutter v. Snavalin, S. D. R. Vol. 14, p. 547, Bull. Vol. 2, pg. 152; Whalen v. N. Y. & Cuban Mail S. S. Co., Bull, of Gen. Contractors Associa- tion, vol. 8, pg. 64. 38. Redmond v. Winchester Repeating Arms Co., 2 Conn. C. D., Part 1, pg. 118; Throm v. Estate of Mally, 2 Conn. C. D., Part 1, pg. 121. 39. MacGillivray v. The Northern Counties Institute for the Blind, 1911 Ct. of Sess. Cas. 897, 4 B. W. C. C. 429, 48 Sc. L. R. 811, 11 N. C. C. A. 77; . Porton v. Central (unemployed) Body of London, (1909), 1 K. B. 173, 2 B. W. C. C. 296, 11 N. C. C. A. 78. 776 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 313 A charitable institution, undertook to provide unemployed per- sons with board and lodging, and occasionally gave small sums of money to persons working in the yard. A person so engaged was injured and sought compensation. The county court judge fouml that the institution was not carrying on a "trade or business" within tho meaning of the act, and second that there was no "contract of service" between the parties within the meaning of the act. On appeal, the court without deciding the question of carrying on a "trade or business," held that claimant did not succeed in establishing a contract of service. 40 A person, who sought board and lodging from the salvation army while he was seeking other employment, sustained injuries while pel-forming work which such persons were required to render while ivmaining at the institution. The court holding that the business respondent was engaged in did not come within the Workmen's Comepnsation Act, said: "The stipulation filed on June 14, 1915, lii-ing the one concerning the facts in the case, does not allege facts even as much as raising a presumption that the business in which the respondent is engaged comes within any of the provisions of the law designating hazardous or extrahazardous employments. The name of the respondent, as given in the title of the case Salvation Army Industrial Home' barely suggests that it possibly may be engaged in some extrahazardous business that would bring it under the terms and provisions of the compensation act by operation of law; and inasmuch as there is no showing here that the business in which the respondent is engaged is extrahazardous, or that the respondent has elected to operate under the terms of the workmen's compensation act, this board has no jurisdiction. If there is any liability at all, it is in some other forum than the Industrial Board." 41 Where an employee was injured by a fall down steps in a chari- table hospital, ami lat-r died from the effects of the fall, it was held that under the statutes of the state and ordinances of the city 40. Burns v. Manchester & S. Wesleyan Mission, 1 B. W. C. C. S05, (1908), 11 N. C. C. A 77. 41. Dery v. Salvation Army Industrial Home. 111. Ind. Bd.. (1915) 11 N. C. C. A. 79. Y77 314 WORKMEN'S COMPENSATION LAW the operation of the hospital came within the term ' ' extrahazardous employments," and therefore the dependants of deceased were en- titled to compensation for the death resulting from an accident arising out -of the employment. 42 Where a charity worker fell and sustained injuries when leaving a doctor's office, where she had gone for information, it was held that the accident arose out of the employment. 43 314. Chauffeur. Where a chauffeur, engaged in moving bricks, quarreled with another chauffeur as to who should load first, and was injured in a fight that ensued, which he himself provoked, it was held that in engaging in a fight the employee placed himself within the exception of the act which denies com- pensation to any employee when by wilful intention he seeks to bring about the injury or death of himself or another. 44 Where a chauffeur, who was employed to drive a passenger to a station, arrived before train time and proceeded to drive about the town for his own and the passenger's personal pleasure, and was killed by the passenger while so doing, it was held that the death did not arise out of the employment, for in driving about town the employee had ceased to be acting within the course of his employment. 45 An employee was killed in a collision with an electric car, while driving an automobile of a fellow employee with which he was not familiar. There were no instructions from- the employer as to which one of the two employees should drive. The court held that, while the employee might have been guilty of negligence, still he was acting within the course of his employment and his injury arose out of the employment. 40 42. Hahnemann Hospital v. Indus. Bd. of 111., 282 111. 316, 118 N. E. 767, 1 W. C. L. J. 754. 43. Gerard v. Associated Charities of San Francisco, 2 Cal. Ind. Ace. Comm. 705. 44. Stillwagon v. Gallon Bros., 183 App. Div. 141, 170 N. Y. Supp. 677, 2 W. C. L. J. 379, 16 N. C. C. A. 932 45. Central Garage of LaSalle v. Indus. Comm., 286 111. 291, (1919), 121 N. E. 587, 3 W. C. L. J. 428, 18 N. C. C. A. 1052; Hatter v. Payne, 1 Cal. I. A. C. 647, 12 N. C. C. A. 179. 46. Maryland Casualty Co. v. Indus. Aoc. Comm., 3 9Cal. App. 229, 178 Pac. 542, 3 W. C. L. J. 577. 778 ACCIDENT ARISING OUT OP COURSE OP EMPOTMENT. 314 Two chauffeurs were cleaning a garage and cars according to directions of their employer. One found a dynamite cap, and in attempting to remove a wire from it, it exploded and injured the other employee. In holding that the injury arose out of the em- ployment the court said: "It was the duty of the employee to acquaint his employer of the finding of the cap. The attempt to remove the wire might have been careless but it was not either a sportive or a wilful act. The claimant suffered injury from a fellow employee's act while claimant was performing his duties, lie was injured through the carelessness and neglect of a fellow workman, which was an accidental risk of his employment." 47 Where a chauffeur got some foreign substance into his eye while driving, which destroyed the sight of his eye, the board found that the loss of the eye was due to an accident arising out of the em- ployment. 48 Where a demonstrating chauffeur was injured while driving one of the demonstrating machines of his employer, it was held that the injury arose out of the employment. 49 Where claimant lent his machine to an automobile club for use in an outing for orphan children, and was injured while driving his own car to the orphanage, it was held that he was not injured in the course of his employment." A chauffeur, employed to drive two passengers, was seen to de- part and a couple of days later his dead body was found by the roadside, the circumstances tending to show that he had for some unknown reason, not that of robbery, been murdered by the pas- sengers. It was held -that such evidence was insufficient to establish that his murder was due to any risk arising out of the employment. It was also held that there is no presumption in law to the effect 47. Laurino v. Donovan, 186 App. Div. 387, 173 N. Y. S. 619, 1919, 17 N. C. C. A. 944; Rogers v. Rogers (Ind. App.), 122 N. E. 778, (1919), 18 N. C. C. A. 1039. 48. Grant v. Narlian.l Cal. I A. C. 482, (1914), 12 N. C. C. A. 179. 49. Todd v. Drouet ft Page Co., 3 N. Y. St. Dep. Rep. 351, 12 N. C. C. A. 178. 50. In re Derby, Ohio Ind. Com., (1915), 12 N. C. C. A. 178. 779 315 WORKMEN'S COMPENSATION LAW that a chauffeur is, by reason of his employment, subject to any special risk of being murdered. 51 Where a chauffeur was killed while driving at the rate of seventy miles an hour, it was held that his act in so doing amounted to foolhardiness and would be classed as wilful misconduct. 52 Where a chauffeur fractured his arm while cranking an automo- bile, and later abscesses developed, it was held that the extended disability was due to the accidental injury arising out of the em- ployment. 53 Where a chauffeur was waiting for his employer's automobile to be repaired in a garage and volunteered to crank the machine and sustained a broken arm in so doing, it was held that he was serving no interest of his employer, and therefore his injury did not arise out of the employment. 54 ; :; Where a truck driver, whose duties required that he take a truck back to the garage after work, allowed another to drive the truck on the way home and, while that other was driving, fell from the truck and was killed, the court held that the employee was not at the time of the injury engaged in the performance of the duties of his employment, and therefore it could not be said that the accident arose out of the employment. 55 315. Concussion of Brain. An employee fell while at work, and the evidence tended to show that there were no obstacles about over which the employee might have tripped. He was first seen lying on the ground frothing from the mouth. A post mortem examination revealed a hemorrhage of the brain of long standing. The medical testimony was to the effect that decedent came to his death as the result of a blood clot on the brain. The board awarded compensation, holding that death was due to the fall. On appeal 51. Gibson v. Aves, 2 Cal. I. A. C. D., (1915), 185, 10 N. C. C. A. 645. 52. Head v. Fidelity & Deposit Co., 1 Cal. I. A. C. D. (1914), 32, 8 N. C. C. A. 904. 53. Newcomb v. Albertson, 85 N. J. L. 435, 89 Atl. 928, 4 N. C. C. A. 783. 54. Belong v. Krebs, 1 Cal. I. A. C. D. 592. 55. Morris v. Indus. Comm., 111. , (1920), 128 N. E. 727, 7 W. C. L. J. 41. 780 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 316 the decision of the board was reversed, the court holding that such finding could only be based on mere conjecture or guess. 50 A workman was found unconscious at the foot of a ladder over which he had to climb every few minutes. He was suffering from concussion of the brain. The court held that the evidence NVM-. sufficient to justify the conclusion that the concussion of the brain was brought about by an accidental fall from the ladder while the employee was performing his duties." An employee suffered a concussion of the brain from an acci- dental injury. He recovered sufficiently to return to work, and later was seen to fall, and he died almost immediately. The mrdical testimony was to the effect that the first injury was the cause of the death. It was held that the death was due to an injury arising out of the employment. r>s A traveling salesman, crossing on a ferry from San Francisco to Oakland on business, became diz/.y, and after landing fell be- cause of the dizziness, causing concussion of the brain. There was no evidence that the bay was rough or the weather bad at the time of 'crossing. It was held that there was no evidence to show a causal connection between the cause of the fall and any risk incidental to or arising out of the work to be performed. Th- claimant did not discharge the burden of proving that the fall was due to an accident arising out of the employment. 59 316. Contagious Skin Disease. Applicant, a porter in an infectious dist-asc hospital, was employed in tin- wards and also to clean out the mortuary. He contracted scarlet fever and Claimed compensation under the workmen's compensation act. It was held that it was very likely that he contracted the disease in or about the hospital, and the contracting of a disease could not, under th<> 56. Hansen v. Turners Const. Co., 224 N. Y. 331. 120 N. E. 693. 3 W. C. L. J. 168, 17 N. C. C. A. 786. 57. Fagan v. Jack Bros., 31 Sheriff Ct. R. (Sc.), 332, (1915), 10 N. C. C. A. 620; Meyers v. Michigan Cent. R. Co., 199 Mich. 134, 165 N. W. 703, 15 N. C C. A. 277. 54. Deem v. Kalamazoo Paper Co., 189 Mich. 655, 155 N. W. 684. 59. Van Winkle v. Johnson Co.. 2 Cal. I A . . Iec. 212; Horn Engwick. 2 Cal. I. A. C. D. 875. 781 317 WORKMEN'S COMPENSATION LAW circumstances, be called an accident within the meaning of the act. 60 Where an employee contracted eczema as a result of being ex- posed to fumes and splashes of carbon bisulphide, it was held to be an injury by accident arising out of the employment 61 A bookkeeper in an ice and storage plant contracted impetigo contagiosa, which might have been contracted outside of his em- ployment. He was very susceptible to this disease. There was nothing in or about the employment that would be likely to cause the disease. The employees all used a roller towel and the disease might have been communicated in this manner from a fellow em- ployee who had been affected by the disease. It was held that the evidence was insufficient to show that the disease was due to an injury arising out of the employment. 62 317. Delirium Tremens. An employee was injured by a keg rolling off a brewery wagon and striking him on the leg. He was taken to a hospital where he died nine days later from delirium tremens and alcholic meningitis. It was found that the condition of alcoholism was aggravated by the accidental injury arising out the employment. 63 "Where an ice wagon driver claimed to have sustained injuries when ice tongs slipped, causing a cake of ice to strike him in the abdomen, and died later from delirium tremens, the commission found that the predominating cause of the death was the accidental injury during the course of the employment, and that the delerium tremens was only a contributory cause. 64 Where a printer slipped and fell upon a floor, striking his head, and later developed delirium tremens and died, the board found 60. Martin v. Manchester Corp., (1912), W. C. & Ins. Rep. 289, 5 B. W. C. C. 259, 106 Law T. R. 741, 28 Times Law Rep., 344, 3 N. C. C. A. 238, 61. Evans v/Dodd, 5 B. W. C. C. 305. 62. Allen v. Los Angeles & Storage Co., 3 Cal. I. A. C 104. 63. Dunn v. West End. Brg. Co., N. Y. S. D. R. Vol. 5, pg. 380; Affirmed by the Appellate Div., (1916) ; Sullivan v. Industrial Engineering Co., 173 App. Div 65, 158 N. Y. S. 970. 64. Carroll v. Knickerbocker Ice Co., 169 N. Y. App. Div. 450, 155 N. Y. S. 1; McCahill v. N. Y. Transportation Co., 201 N. Y. 221, 94 N. EL 616. 48 L. R. A. N. S. 131, Ann. Gas. 1912A 961. 782 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 317 that the death was due to the injury arising out of the employment, and the appellate division unanimously and without opinion af- firmed the finding. 65 Where an employee was struck by a falling timber and later developed lobar pneumonia and delirium tremens, the court held that there was a sufficient showing of connection between the acci- dental injury during the course of employment and the cause of the death to justify an award for, "As a matter of fact delirium frequently follows an injury. A man need not be a hard drinker to become delirious after an injury. Men who are very moderate drinkers become delirious shortly following an injury. We have cases like this day after day. We have had doctors here and they agree that a man who is a moderate drinker may become delirious following not a very severe injury, and where the man dies in de- lirium and the immediate cause of his death was delirium tremens, and yet the cause of his delirium was the accident, the cause of his death was the accident." 66 An employee complained of hernia, and the claim agent advised an operation. The operation was performed, but prior to the operation delirium tremens and lobar pneumonia resulted, causing the death of the employee. A claim for compensation was dismiss- ed, because of a failure on the part of the employee to give notice of the strain which he claimed caused the hernia. 67 Where it appeared that delirium tremens would not have devel- oped had it not been for the injury and shock resulting from an accident arising out of the employment, the court, holding that the death was due to the injury, said: "The fact that his system had been so weakened by his intemperate habit that it was unable to withstand the effects of the injury does not thereby shift the 65. Winters v. N. Y. Herald Co., 171 N. Y. App. Div. 960, 155 N. Y. S. 1149, 66. Sullivan v. Indus. Engineering Co., 173 N. Y. App. Div. 65. 158 N. Y. S. 970; Rzepeznskl v. Manhattan Brass Co., 181 N. Y App. Div. 952; Beckwith v. Bastian Bros. Co., 181 N. Y. App. Div. 909, 1C7 N. Y. S. 1087. 67. Herbert v. Lake Shore & M. S. R. Co., 200 Mich 566, 166 N. W. 923, 1 W. C. L. J. 1069. 783 318 WORKMEN'S COMPENSATION LAW proximate cause of death from his injury to his intemperate habit" 68 318. Dislocation. An employee of a corporation was injured while delivering books to one of the stockholders, when he slipped and fell down stairs, causing the box to tip and fall, dislocating two joints of his spine. Reversing an award of compensation in favor of claimant, the court said: "It appears conclusively that such temporary service was of a casual nature, a mere accommo- dation undertaken by the corporation for one of its stockholders without charge, and in no sense a part of its special machine shop business in which both Shelby (the corporation's general manager from whom the order to deliver the books emanated) and plaintiff was employed. 'Uncompensated favors extended occasion- ally to its stockholders surely do not constitute "business" of a corporation, "usual" or otherwise.' The court held farther that the accident did not arise out of and in the course of applicant's employment. 69 An employee in a laundry suffered a dislocation of the womb, as the result of a strain caused by carrying a bucket of starch. The medical evidence showed that the straining and heavy lifting was the direct cause of the injury, but that the injury was made possible by a laceration of the womb at the time of child birth thirty years before. Compensation was awarded. 70 A dislocation of the semilunar cartilege of the knee, caused by quickly arising from a stooping position, is an injury arising out of the employment, when the very nature of the employment re- quires such exertions. 71 Where an employee slipped and fell, dislocating his clavicle, and was operated upon three days later and died from hypostatie 68. Ramlow v. Moon Lake Ice Co., 192 Mich. 505, 158 N. W. 1027, L. R. A. 1916F, 955; 14 N. C. C. A. 295; In re Cross, (Mass.), 1 Nat. Comp. Jour., (1914), 21, 9 N. C. C. A. 261; Minnis v. Young, 9 N. Y. St. Dep. 31*. 69. Carnahan v. Mailometer Co., 201 Mich. 173, 167 N. W. 9, 1 W. C. L. J. 1045. 70. Loustalet v. Metropolitan Laundry Co., 1 Cal. I. Ace. Comm. D., (1914), 318, 10 N. C. C. A. 771, 71. Giampolini-Lombardi Co. v, Raggio, 2 Cal. Ind. A. C. 936. 784 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 319 pneumonia, caused by the weakening >t' liis system by the operation, it was held that the death was due to an injury arising out of the employment. 72 Where an employee, through accidental injury, suffered a dis location of the coecum, general adhesions in the abdomen, and constipation, resulting in traumatic peritonitis, which condition necessitated the removal of the appendix, all this was held to be caused by the accident arising out of the employment 71 Where an elevator operator, in raising heavy gates above his head, sustained a dislocation of the collar bone, it was held that the injury arose out of the employment. 74 319. Drivers Injured. Where a teamster was kicked by a horse, and applied salve and continued to work without consulting a doctor, though advised to do so, it could not be said that he was guilty of such unreasonable conduct as would preclude a recovery, whore the employer merely suggested that he see a named doctor and the employee was not informed that the employer was furnish- ing the doctor. 78 "The relator's husband, Charles Jacobson, was employed by the City of Minneapolis. He was driving a sprinkling wagon. He furnished his team and the running gears of the wagon. The city furnished the tank. He kept the sprinkler in the rear of his house and stabled his horses in his barn on his premises, and fed and cared for them at his own expense. He worked eight hours a day, commencing at 8 and quitting at 5, with an hour off at noon, and received for his services and the use of his team and wagon $6 per day. On the day of his injury he had finished his day's work, had gone home and stabled and fed his horses, and had eaten lii> supper. After supper he went to the stable to doctor one of his horses which had a sore neck. While he was so engaged the horse killed him. The facts stated give no right to compensation. The 72. Cantwell v. Travelers Ins. Co., 2 Mass. W. C. C. 246. 73. Gregg v. Frankfort Gen. Ins. Co., 2 Mass. Wk. Comp. Cases 581. 74. Bonin v. California Hawaiian Sugar Refinery, 3 Cal. I. A. C. 334. 75. Banner Coffee Co. v. Billig. 170 Wis. 157, (1919), 174 \. W. 544, 6 W. C. L. J. 118. 785 W. C.-50 319 WOEKMEN'S COMPENSATION LAW plaintiff's work for the day was done. He was not to do service for the city until the next morning. The horses were his and he fed and cared for them, and furnished them and his wagon ready for work at a definite time. The accident did not arise out of his employment any more than would an accident which came while he was repairing his wagon or while doing other work in preparation for his next day's work for the city. The relator cites cases where a teamster, injured while caring for his horses after their work for the day was done, was allowed compensation. Smith v. Price, 168 App. Div. 421, 153 N. Y. Supp. 221 ; Costello v. Taylor, 217 111. 179. 111. N. E. 755; Duburban Ice Co. v. Industrial Board, 274 111. 630, 113 N. E. 979. They involve situations where a teamster was doing work for his employer in the care of his employer's team and as a part of the work for his employer." 76 Claimant, a garbage collector, was injured as a result of his horses becoming frightened while he was taking his horses and equipment back to the barn of his immediate employer. Claimant 's immediate employer Boadi was not subject to the provisions of the compensation act. In holding that he was entitled to compensation for an injury arising out of and in the course of the employment, the court said: "Boadi was not subject to the provisions of the Compensation Act, and that act provides (Stats, sec. 2394 3) that an employer subject to the provisions of the act shall be liable for compensation to an employee of a contractor or subcontractor under him who is not subject to the act in any case where such employer would have been liable for compensation if such employee had been working directly for such employer. The city of Milwaukee is sub- ject to the provisions of the act, and this provision plainly made the claimant here the employee of the city while carrying out Boadi 's contract with the city to the same extent that he was an employee of Boadi so far as the purposes of the Compensation Act are con- cerned. So there can be no doubt of the existence of the relation of employer and employee within the meaning of the Compen- sation Act at the time of the accident. That the claimant was then performing services growing out of and incidental to his em- 76. State ex rel. Jacobson v. District Court of Hennepin County, 144 Minn. 259, 175 N. W. 110, 5 W. C. L. J. 288. 786 ACCIDENT ARISING OUT OP COURSE OP EMPOYMENT. 319 ployraent seems equally beyond doubt. He was taking the garbage collection equipment, part of which belonged to the city, to its usual place of storage and care so that it should be ready for the work of the following day. We can hardly conceive of a service which grows out of and is incidental to his employment as a garbage collection if this is not such a service." 77 A teamster's duties required him to go among customers to pick up business. He slipped and fell on a runway at the door of a customer, sustaining injuries causing his death. It was con- tended that the injury did not arise out of and in the course of the employment. The court said: "This contention is without merit. It clearly appears that a part of the business of deceased was to go to customers of his employers and pick up business; that Randall & Co., were such customers and that he was com- pelled to go through Randall & Co.'s, building to reach Spahus, another of his customers. The wagon and team that he had been using had been left in the alley, and the reasonable inference to be drawn from the facts proven is in complete accord with the testimony of a witness who testified, 'I suppose he went back there to see if he could get a load.' The rule has been announced and frequently applied that if the employee is injured while in the performance of any of his duties such injury arises out of the employment. The evidence in this case fairly tends to show that the injury arose out of the employment." 78 Where a teamster indulged in horseplay with a fellow em- ployee, who threw a stick at him, striking him in the eye, it was held that as the injury resulted from horseplay or fooling, plain- tiff was not entitled to compensation. 78 77. City of Milwaukee v. Fera, 170 Wis. 348. 174 N. W. 926, 5 W. C. L. J. 336. 78. Helnze v. Indus. Comm., (1919), 288 111. 342. 123 N. E. 598, 4 W. C. L. J. 361, 18 N. C. C. A. 1020; E. E. Walsh Teaming Co. v. Indus. Comm., (Dec., 1919), 290 111. 536, 125 N. E. 331, 5 W. C. L. J. 377. 79. Pierce v. Boyer-Van Kuran L/br. & Coal Co., 99 Neb. 321 156 N. W. 609, 16 N. C. C. A. 287. 787 319 WORKMEN'S COMPENSATION LAW Where a teamster was bitten by a cat, which was usually kept about the stable, it was held that the accident arose out of the employment. 80 Four years before his death, decedent, a teamster, received a fall in the course of his employment, which resulted in impair- ment of his memory. One afternoon he was ordered to return to the stable with his horse and was found in a swamp. He died later from pneumonia. It was contended that the death was due to the previous fall and therefore was due to an accident arising out of the employment. In reversing an award, the court said: "If the horse driven by Milliken had run away and Milliken had been thereby thrown out and killed the personal injury in fact suffered in that case would have been one which from the nature of his employment would be likely to arise and so would be one 'arising out of his employment.' But as we have said, there is nothing in the employment of driving a wagon which makes it likely that the employee will alight from his wagon, wander to and fall into a swamp, and lie there all night. It seems plain that if Milliken 's death was caused by a personal injury, it was the one which happened some four or five years before the occur- rence here complained of and before the Workmen's Compensa- tion Act \vas passed. At that time he fell from his wagon and striking on his head suffered as a result an impairment of his memory." 81 Where a driver was kicked, when he was leading his employ- er's horse past other horses in a blacksmith shop, for the purpose of having shoes put on the horse, it was held that the accident arose out of the employment. 82 Where a teamster was killed while watering extra teams be- longing to his employer, it was held that the accident arose out of the employment 83 80. Rowland v. Wright, 77 L. J. K. B. 1071, 99 L. T. R. 758, 24 T. L. R. 852, 3 N. C. C. A. 278, 1 B. W. a C. 192 (1908). 81. Milliken v. A. Towle & Co., 216 Mass. 293, 103 N. E. 898, 4 N. C. C. A. 512. 82. Kenefick v. Laurer Brewing Co., 4 N. Y. St. Dep. Rep. 350. 83. Suburban Ice Co. v. Indus. Bd., 274 111. 630, 113 N. E. 979; Gylfe v. Suburban Ice Co., 1 Bull. 111. Ind. Bd. 167, 11 N. C. C. A. 325; In re Puterbaugh, 1 Bull. Ohio. Ind. Com. 143. 788 ACCIDENT ARISING OUT OP COURSE OP EMPOYMENT. 319 Where a teamster lost his eyesight as the result of infection from disinfecting a stable, it was held that he had suffered an injury that arose out of the employment. 84 A teamster left his team, while waiting for his wagon to be loaded, and crawled on top of a car. The team became frighten- ed and ran away. In an attempt to stop them the driver was in- jured so that he died. It was held that the accident did not arise out of the employment. 85 It has been held that an injury sustained by a driver in at- tempting to stop a runaway horse, when such runaway is not due to the negligence of the driver, is an accidental injury aris- ing out of the employment. 88 Where a driver was injured while driving his wagon back to the place of his employment, after making a delivery for his em- ployer, it was held that he was injured by an accident arising out of and in the course of his employment. 87 Where a teamster for a brewery was overcome by heat while returning to the brewery after making a delivery, it was held that the employment of deceased exposed him to no extra hazard from the danger of becoming overheated, and that while the accident arose in the course of the employment, it did not arise out of it. 88 Whore a teamster was injured when a shot gun, which was taken along by a fellow employee for his own pleasure, was acci- dentally discharged, the court, in holding that the accident did not arise out of the employment, said: "The case is clearly one where an employee in the performance of his duty meets with an accident bearing no relation whatsoever to the nature of the em- ployment. The only argument in support of the award would be, it seems to us, that the employer in permitting the fellow em- 84. Walker v. M. .Mosson Co., 3 N. Y. S. Dep. 362. 85. Oliver v. Smith. 38 N. J. L. J. 148. 86. Kossoff v. R. H. Macy & Co., (1916), 7 N. Y. St. Dep. 430; Dale v. Hual Const. Co., (1916), 9 N. Y. St. Dep. 282, 87. White v. East St. Louis Ry. Co., 211 111. App. 14. 17 N. C. C. A. 938; Smith v. Price, 153 N. Y.S. 221, 9 N. C. C. A. 712. 168 App. Dlv. 421 88. Campbell v. Clausen-Flanagan Brewery, 183 N. Y. App. Div. 490. 171 N. Y. S. 522, 2 W. C. L. J. 676, 17 N. C. C. A. 1002. 789 319 WORKMEN'S COMPENSATION LAW ployee to take with him the shotgun subjected the injured man to an extra hazard. But as against this it is clear that the em- ployer, though he knew that the shotgun was to be taken along, neither ordered it nor in any other way than by his silence as- sented to it. It is not even contended that the employer knew that the gun was loaded, and unloaded it was as harmless as any of the tools which they were carrying. It was quite open to the injured man to object to the presence of the gun, if in fact he did object to it, and it was but a part of common prudence for him to have seen that the gun was unloaded when he assented to his nephew placing it in this obviously dangerous position. * * * This accident was no more reasonably incident to the employ- ment than it would have been had a pistol been carried in the nephew's pocket and by the same jolt of the wagon had been ac- cidentally discharged to the injury of the uncle." 89 A driver was crushed under a load of lumber and suffered several broken ribs. He died later, and it was contended that the death was due to disease, and not to the accident arising out of the employment. In holding that the death was due to an acci- dent arising out of the employment, the court said : ' ' An autopsy disclosed that he (deceased) had pulmonary tuberculosis in such an advanced stage that one lung had been entirely destroyed and the other to a considerable extent; also that he was suffering from other diseases. The relators called three physicians who tes- tified that, in their opinion, his death was caused by pulmonary tuberculosis, and that the injuries which he had sustained were not sufficient either to cause or hasten his death. The claimant called no physicians, but other witnesses testified that the deceas- ed had worked continuously at hard labor until the accident, had apparently been in good health at all times theretofore, and had never been able to leave his bed thereafter. In view of all the cir- cumstances, we are unable to say that it conclusively appears that the injuries sustained had no part in causing his death, nor 89. Ward v. Indus. Ace. Comm. of the State of Gal. 175 Cal. 42, 161 Pac. 1123, 15 N v C. C. A. 223. 790 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 319 that the trial court was concluded by the testimony of the ex- perts." 90 A teamster was found bruised and crushed between the wheels of his wagon in a washout, as it appeared, when he was on his way to return the team to the barn. There was evidence that de- ceased was a sober, healthy man, although on account of the cold he and another driver had taken whiskey while on the way home. The board found that his death was due to injuries sustained when his wagon struck the washout, throwing him beneath the wheels of the wagon, and that the injury or accident causing the death arose out of the employment. 91 A teamster left his wagon to collect receipts which had been scattered by the wind, and was struck by a passing automobile and fatally injured. The court, in holding that the injury arose out of and in the course of his employment, said: "In the case at bar the employment of Kearney to drive a team through the public streets and deliver goods required of him every reasonable and lawful effort to accomplish his task. His work did not re- quire him to stay on his wagon. He was bound in the perform- ance of his duty to use the street to deliver goods, to regain pack- ages or papers fallen from the wagon, as also to care for his horses, adjust the harness and repair the wagon, if necessary. It is manifest he might be injured while in the street in the per- formance of duty, and it is plain his employment therein exposed him to the particular injury he received." 92 Where a teamster, upon discovering that no chute with which to unload coal had been placed upon his wagon, went to a near- by saloon to telephone for one, in accordance with his instruc- tions covering such cases, and was struck by a passing automo- bile and seriously injured, the court held that the evidence justi- fied the board in finding that at the time of deceased's death he 90. State ex rel. Jefferson v. District Court of Ramsey Co., 138 Minn. 334, 164 N. W. 1012, 15 N. C. C. A. 645. 01. Leary v. Mcllvain, (1919), 106 All. 785, 263 Pa. 499, 4 W. C. L. J. 453; Brisco v. Englert, 4 N. Y. St. Dep. 345. 92. Keaney's Case, (1919), 232 Mass. 532, 122 N. E. 739, 4 W. C. L. J. J. 103, 18 N. C. C. A. 1039. 791 320 WORKMEN'S COMPENSATION LAW was doing the very thing that he was supposed to do, and that his injury was due to an accident arising out of and in the course of the employment. 93 A driver of a delivery wagon for a florist, who was supposed to assist in delivering when his services were needed for this pur- pose, was injured when he fell from a ladder, while adjusting a window box in a house where he had delivered flowers. The court held that in rendering these services to a customer, decedent had departed from his employment and therefore the injury did not arise out of the employment. 94 Where a driver of a truck and deceased, employees of a team- ster, sent to haul goods to a station after loading boxes which were on a platform, used an elevator to move goods from a top floor, they did not depart from the scope of their employment, and riding on the elevator with the boxes did not amount to a deliberate and reckless indifference to danger which would bar a recovery. 95 320. Drowning. A repair man about furnaces was found drowned in a river bordering on the premises of the plant. It ap- peared from the evidence that at times the heat from the furn- aces became intense, and that gas was likely to and did escape, and when inhaled by the workmen that they went outside for air, and that the usual place to go was to the river bank. The evi- dence further showed that on the night in question there was no gas about the furnace and no repairs were made. In the absence of any direct evidence as to the manner in which deceased met his death, it was contended that the reasonable inference to be drawn was that he had gone to the river in the performance of his duties, accidentally fell in and was drowned. The court held that the burden of proving that the accident arose out of the em- ployment, while deceased was performing his duties, rested upon applicant, and he failed to discharge this burden. A showing of 93. Consumer's Co. v. Ceislik, (1919), Ind. App. , 121 N. E. 832, 3 W. C. L. J. 620, 18 N. C. C. A. 1040. 94. Glatzl v. Sturapp, 220 N. Y. 71, 114 N. E. 1053. 95. Colbourn v. Nichols, 109 Atl. 882, Del. Sup. Ct. , (1920), 6 W. C. L. J. 140. 792 ACCIDENT ARISING OUT OP COURSE OP EMPOYMENT. 320 facts which are equally compatible with two views will not sus- tain applicant's claim, but would simply amount to the basing of an award upon imagination, speculation, or conjecture." A cook, who was employed aboard a tugboat, went ashore to purchase provisions, which was part of his duties, and upon re- turning with a portion of the provisions, fell overboard from a wharf, to which his boat was moored, and was drowned. The court held that at the time of the accident deceased was perform- ing a part of his duties. The risk was one occasioned by the na- ture of his employment. The injury was traceable to the nature of his work and to the risks which his employer's work exposed him. Therefore the accident arose out of the employment. 07 A captain of a tugboat was discharged for intoxication, and paid off about 11 :30 a. m. He stayed around the boat for some- time, and finally, after dinner at about 1:30 p. m., he started for the shore and was never seen alive again. His body was found in the river in the vicinity of the pier several months later. The court on appeal said: "If it be considered that, after the dis- charge of the deceased, his employment continued a reasonable length of time, to enable him to remove his belongings from the boat, it must nevertheless have ceased immediately upon his leav- ing it. It cannot be inferred that he fell into the water while in the act of leaving the boat, or prior thereto, rather than after leaving it he fell from the dock, while proceeding along its edge in an intoxicated condition. Indeed, it would seem that, if he fell w r hile in the act of leaving, the engineer who sa\v him start for shore would have heard a splash of water when he struck it, or heard him cry for help. Only a mere guess leads to the con- clusion that the deceased fell into the water prior to attaining a secure foothold upon the pier. There was no proof, therefore, 96. Wisconsin Steel Co. v. Indus. Commission, 288 111. 206, (1919), 123 N. E. 295, 4 W. C. L. J. 168. 97. Westman's Case, 118 Maine 133, (1919), 106 Atl. 532. 4 W. C. L. J. 213; State ex rel. McCarthy Bros. Co. v. District Court of Hennepin Co., 141 Minn. 61, 169 N W. 274, 17 N. C. C. A. 959; Proctor v. Serbino (Owners of), (1915), 3 K. B. 344, (1915). W. C. & Ins. Rep. 425, 10 N. C. C. A. 618; In re Martin H. Ash., 2nd A. R. U. S. C. C. 241. 793 320 WORKMEN'S COMPENSATION LAW that the deceased came to his death through an accident arising in the course of his employment." 98 A nightwatchman left his usual place of employment and went to visit the owner of a boat, which was lying along side the place of his employment. Upon returning he attempted to jump from the boat back to the dock, and fell into the water, dying from the exposure. The court held that, in abandoning his duties, de- ceased left the scope of his employment, and his injury was not a natural incident of his work. It was neither a risk connected with his employment, nor a risk arising out of his employment. The accident resulted from the act of the claimant's intestate, disconnected wholly from the sphere of his employment. 80 An employee of an amusement park, whose duties included operating a boat carrying passengers for hire, was drowned. It appeared that after discharging his load of passengers he pro- ceeded to another landing, having in the boat a young woman who was not a passenger for hire. When he stepped from the boat, the boat slipped away. He attempted to get back into the boat by leaping, but fell in the water. He caught hold of the bow of the boat. The young lady offered to assist him but he declined her assistance, dropped from the boat, and began to swim on his back to the stern of the boat. When about 20 feet from the stern of the boat he sank and was drowned. Earlier in the day he had boasted of his abilities as a swimmer. In affirming a judgment for compensation, the court said: "It is insisted that the evi- dence does not justify the finding and ruling of the commission that, after Boyler had fallen into the water and began to swim upon his back toward the stern of the boat, such act was not a departure from the course of his employment. An examination of the evidence shows that it was just as reasonable to infer that Boyler was attempting to get into the boat as that he was making 98. In re Whalen, 173 N. Y. Supp. 856, (1919), 18 N. C. C. A. 1037, 3 W. C. L. J. 510, 186 App. Div. 190. 99. King v. Standard Oil Co. of New York, 184 N. Y. App. Div. 453, 171 N. Y. S. 1032, 17 N. C. C. A. 938. 794 ACCIDENT ARISING OUT OF COURSE OF EMPLOYMENT. 320 an exhibition of his skill as a swimmer, of which he had just previously been boasting." 1 Where an employee on a boat, while in an intoxicated condi- tion, attempted to go ashore in a small boat in search of more whiskey, and was drowned, it was held that the accident was due to the employee's intoxication, the court saying: "If Collins was in an intoxicated condition, that is, a condition in which he would be unable to look out for his own safety with that degree of care which a person would otherwise naturally exercise, and that, while so influenced, he did something which a person in a normal condition would not be likely to attempt and which brought about the accident, the trial court would be warranted in finding that the accident resulted from the condition into which he had voluntarily brought himself. We do not think that the statute requires that every possibility should be excluded be- fore the evidence becomes sufficient to support the finding that the result was due to intoxication. We think that the intoxica- ted condition of the decedent is fully substantiated by the evi- dence, and that his reckless and unnecessary act in going into and standing up in a small boat, easily capsizable, was a danger- ous act which would be apparent to any sober person. The very fact that he elected to make use of this small boat, instead of the larger yawl, which was lying close to it and was equally avail- able, is further evidence of his condition and of his inability therefrom to properly care for himself."* An assistant engineer on a dredge was drowned while attempt- ing to save the dredge from destruction during a storm. The trial court found that the sinking of the dredge was due to the violence of the storm, and that the death of the engineer was due to an accident arising out of the employment. In affirming the decision, the court said: "The nature of the employment, the conditions under which it was to be and was pursued, the exposure to prob- 1. Boyle v. Mahoney & Tiernay, 92 Conn. 404, 103 All. 127, 16 N. C. C. A. 893, 1 W. C. L. J. 938. 2. Collins v. Cole, 40 R. I. 66, 99 Atl. 830, 14 N. C. C. A. 290; In re Pope, 177 N. Y. App. Dlv. 69, 163 N. Y. S. 655, 14 N. C. C. A. 293; Mclntyre v. Stewart, (1915), Sc. L. T. 288, (1915), W. C ft Ins. Rep. 550, 14 N. C. C. A. 294. 795 P>20 WOIJIOII N'F> COMPENSATION LAW able injury from reasonably to be expected storms of similar character were all matters incident to such a risk as was here underwritten, and therefore an injury maturing such a risk, we think, could well be said to have been incidental to and to have arisen out of that employment." 3 Where a cook on a steamship gave orders to his helper to put certain articles on the stove to cook, and then left the galleys and disappeared, it was held that there was no evidence whatever to justify a finding that deceased met with an accident arising out of the employment. 4 A floatman, whose duties were to check up and secure cars being transported upon a float, was, upon arrival of his float at its slip, ordered by his superior to take his belongings and go upon another float and await the arrival of a tug. A few minutes later his lantern and gears were found upon the float, and his body was found a few days later floating in the slip. It was held that there was sufficient evidence to justify an inference that deceased met his death as the result of an accident, which arose out of the em- ployment. The case was, however, sent back on questions of de- pendency. 5 An employee was drowned as a result of ice breaking upon a pond over which he was crossing. There was a more circuitous route around the pond leading to deceased's home. The pond was on the premises and under the control of the employer. In affirming a finding that the accident arose out of and in the course of the employment, the court said: "While the- employee's work for the day had been finished and he was on his way home at the time of the fatal accident, still it is settled that an injury to a workman may arise out of and in the course of his employment 3. Southern Surety Co. v. Stubbs, (Tex. App. Div.), 199 S. W. 343, 15 N. C. C. A. 276; Milwaukee Western Fuel Co. v. Indus. Comm., 159 Wis. 635, 150 N. W. 998, 12 N. C. C. A. 76; Cino v. Morton & Gormon, Contracting Co., 5 N. Y. St. Dep. Rep. 387, 12 N. C. C. A. 79. 4. Lynch v. Crown Steamship Co., Ltd. 32 Sheriff Ct. Rep. 135, 12 N. C. C. A. 68; Burwash v. Frederick Leyland & Co. Ltd., (1912), W. C. & Ins. Rep. 400, 107 L. T. 735, 5 B. W. C. C. 663. 5. Tirre v. Bush Terminal Co., 172 N. Y. App. Div. 386, 158 N. Y. Supp. 883, 12 N. C. C. A. 64. 796 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 320 even if he is not actually working at the time of the injury." The court said that the finding that th< pond was in the control of the employer and that the crossing over it on the ice was "the rea- sonable and customary way" for deceased to reach his home, and that he and other employees who lived in the same direction *' crossed it this way regularly," warranted the further finding that the injury occurred in the course of the employment." A workman, who was employed in building a bridge over a river, was last seen alive at his home, some miles from where he \\.is employed, which was about two hours before he was to re- turn to work. His body was afterwards found in the bay, but there was no evidence as to how he came to his death. It was held that, in the absence of evidence, it might be inferred that deceased came to his death by accident, but it could not be inferred that the accident arose out of the employment. 7 A workman, whose duty it was to remove rubbish from a flume, which supplied water for his employer's mill, was seen standing on an unrailed walk, using a rake, with his back towards the river. A few days later his body was found in the water, together with a rake handle. It was held that the evidence justified a find in-.: that he was killed by an accident arising out of and in the course of the employment. 8 Where a servant was drowned in an attempt to save the life of a fellow servant, it was held that his death was due to an accident arising out of the employment. 9 A deck hand, who helped load and unload a barge at its terminii. was drowned while riding between such terminii. It was held that the death was due to an accident arising out of th employment, even though he had no active duties to perform while enroute.. 10 6. In re Stacy, 225 Mass. 174, 114 N. E. 206, 15 N. C. C. A. 244. 7. Henry Steers Inc. v. Dunnewald, 85 N. J. L. 449, 89 All. 1007, 4 N. C. C. A. 676. 8. Boody v. K. & C. C. Mfg. Co., 77 N. H. 208, 90 Atl. 859, 5 N. C. C. A. 840. L.*R. A. 1916A, 10. 9. Mathews v. Bedworth. 1 W. C. C. 124. 10. Hideout Co. v. Pillsbury, 173 Cal. 132. 159 Pac. 435, 12 N. C. C. A. 1032. 797 321 WORKMEN'S COMPENSATION LAW A traveling salesman was drowned when the steamship Lusi- tania was sunk by a German submarine. The salesman was enroute to London on his master's business and with his master's knowledge. It was held that the accident arose out of the employment, irre- spective of the lawfulness of the attack. 11 321. Electrical Shock and Electrocution. An employee was electrocuted when he took hold of an electric wire for the purpose of attaching it to a bucket, with which to draw gasoline from a tank. There was a goverment order against the using of gasoline for promiscuous purposes, but this order seems to have been dis- obeyed to the knowledge of the employer. The board made an award for deceased's death. Tn affirming the award, the court said that, "an employee, who, in an honest attempt to discharge a duty assigned him, does an act incidental thereto not specifically directed, or departs from the usual methods of performing his work, does not thereby necessarily deprive himself or his dependents, of a right to compensation, if injured while so engaged;" that, "an employee may be said to receive an injury by accident arising in the course of his employment within the meaning of the Work- men's Compensation Act of this state when it occurs within the period of the employment, at a place where the employee may reasonably be, and while he is doing something reasonably connect- ed with the discharge of the duties of his employment." 12 Where a warehouse employee, who went into a wash room to clean up after the day's work, was killed by an electric wire carrying 114 volts of current while he was in the act of washing in a basin provided by the master, the wire having been used in the master's business, it was held that he suffered an accident arising out of and in the course of his employment. The mere fact that the wire -may have been placed on the wash basin in a spirit of horseplay, would not defeat a recovery of compensation if the deceased himself was not engaged in the horseplay, and the fact that the current which was only 114 volts, would not ordinarily 11. Foley v.- Home Rubber Co., 89 N. J. L. 474, 99 Atl. 624. Note: For additional cases on drowning, see section 270. 12. Nordyke & Marman Co. v. Swift, (Ind. App.), 123 N. E. 449, (1919), 18 N. C. C. A. 1021. 798 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 321 kill a strong man is immaterial, if it is shown by the evidence that it produced fatal results in the present case. 13 Where a carpenter, engaged in work upon one of defendant's cars, came in contact with an electric wire carrying 550 volts of current and was electrocuted, it was held, in the absence of any direct evidence as to the circumstance surrounding the accident, that the death was caused by an accident arising out of the em- ployment. 14 A lineman, in the employ of the Mississippi River Power Com- pany, who was not an expert in this particular business but was a helper of one of the experts, came in contact with that portion of the electric field from which the current had not been excluded and was killed. The court, in holding that the accident arose out of the employment, said: "Hayward was employed in repairing the tower, and the prohibition against going near the live wire referred to his conduct in doing that work. There is no evidence that he had undertaken to do anything outside of his employment. While no one testified to the particular act he was doing at the time he was struck, if he was doing anything, it is evident that he was on the tower for the purpose of doing his work in the course of his employment, and his contributory negligence in carelessy failing to observe the direction not to go near the live wire does not relieve his employer from liability to make com- jM-nsation. The theory of the defendant in error is that Hay ward deliberately disobeyed orders and walked across the rack into the field of the live wires. The conclusion may fairly be drawn from the evidence that through his inexperience or carelessness he moved too close to the live wires, and in such case the determination of the commission concludes the court." 18 13. Hollenbach Co. v. Hollenbach, 181 Ky. 262, 204 S. W. 152, 2 W. C. L. J. 492, 16 N. C. C. A. 879; Newport Hydro. Carbon Co. v. Indus. Com. of Wis., 167 Wis. 630, 167 N. W. 749. 2 W. C. L. J. 421, 1C N. C. C. A. 924. 14. Bloomington D. & C. R. Co. v. Indus. Bd. of 111.. 276 111. 454. 114 N. E. 939, 14 N. C. C. A. 140. 15. Mississippi River Power Co. v. Indus. Comm.. 289 111. 353, (1919), 124 N. E. 552. 5 W. C. L. J. 50. 799 322 WORKMEN'S COMPENSATION LAW Where a carpenter in a shop was killed by an electric current when he attempted to turn on the current by means of a switch, for the purpose of putting in motion a grindstone, on which he was going to sharpen a chisel, it was held that in so doing he was acting within the scope of his employment and that his death was due to an accident arising out of the employment 16 An experienced lineman refused to use gloves furnished by the employer. This was in violation of positive rules against handling hot wires without rubber gloves, and was also in violation of an express order from the foreman at the time. The employee came in contact with the wire and received a shock causing his death. It was held that the decedent was guility of such wilful misconduct as to place him without the scope of his employment, and was not injured by an accident arising out of the employment. 17 A janitor in defendant's office building was furnished by the defendant with living quarters. His wife was managing a res- taurant for defendant. Upon request of his wife, he started to carry a basket of laundry to the restaurant, and was killed by a live wire falling on him. It was held that the duties of deceased did not include carrying of laundry or assisting his wife in the care of the restaurant, and therefore the accident did not arise out of and in the course of the employment. 18 322. Emergency. Where an employee in a shirt cutting factory volunteered to save his employer and others from injury during a raid by strikers and, in so doing was fatally injured, it was held that the injury arose out of and in the course of his employment, the court saying: "While there must be some 16. Wendt v. Indus. Ins. Comm of Washington, 80 Wash. Ill, 141 Pac. 311, 5 N. C. C. A. 790; Houghton v. W. G. Root Const. Co., 35 N. J. L. J. 332. 17. Great Western Power Co. v. Pillsbury, 170 Cal. 180, 149 Pac. 35, 9 N. C. C. A. 466. 18. Murphy v. Ludlum Steel Co., 182 App. Div. 139, 169 N. Y. S. 781, 1 W. C. L. J. 1122. Note: For further cases of electric shock and death from electrocution see "Acts Not Constituting Wilful Misconduct." 283, note 15 and 19 see also "Acts Constituting Wilful Misconduct, 284, note 40. See Sportive Acts 285, note 54 and 59. 800 ACCIDENT ARISING OUT OF COURSE OF EMPLOYMENT. 322 causal relation between the employment and the injury, it is not necessary that the injury be one which ought to have been fore- seen or expected. It must, however, be one which, after the event, may be seen to have had its origin in the nature of the employment. Such was our holding in Pekin Cooperage Co. v. Industrial Com., 285 111. 31, 120 N. E. 530. Where a workman voluntarily performs an act during an emergency, which he has reason to believe is in the interest of his employer, and is injured thereby, he is not acting beyond the scope of his employment. An assault arises out of one's employment in a case where the duties of the employee, under the particular situation, are such as are likely to cause him to have to deal with persons who, un- der the circumstances, are liable to attack him. Ohio Building Vault Co. v. Industrial Board, 277 111. 96, 115 N. E. 149. Such was the situation in this case. Deceased was assaulted^ not for anything he had done, but because he was in the employ of the plaintiff in error, who was in bad favor with the union on ac- count of not having complied with its demands. We are there- fore of the opinion that the injury, which occurred in the course of the employment, arose out of the employment. 19 An employee was injured when he attempted to save a child from being run down on the company's premises by an automo- bile, driven by the president of the company, who was there on the company's business. It was held that the injury arose out of the employment, the court saying: "Nelson was injured in the course of his employment. To be sure, he was not employed to rescue children. But certainly it was reasonably within the course of his employment, within the scope of those things which might reasonably be expected of him as an employee, that he should attempt to prevent an accident on his employer's prem- ises, particularly where the employer would not improbably be responsible for the accident. It is not difficult to imagine how summarily the services of an employee would be dispensed with, who, seeing that such an accident was about to happen, held back and did nothing to prevent it on the excuse that it did not come 19. Baum v. Indus. Coram.. (1919), 288 111. 516. 123 N. E. 625. 4 W. C. L. J. 367. 801 W. C. 51 322 WORKMEN'S COMPENSATION LAW within the scope of his employment. If, in this case, Nelson, in- stead of being injured in an attempt to prevent a child being run over on his employer's premises by an officer of his employer .there on his company's business, had been injured in an attempt to put out an incipient fire accidentally started in the barn, it 'is hardly possible that any question would have been made. Yet ^tliere is no real distinction between the two cases. Nelson was 'no more employed to put out fires than he was to rescue children. The point is that the danger which threatened, and, in attempt- ing to remove which, he was hurt, was one which threatened his employment and directly concerned it, and with which Nelson was confronted in the discharge of his customary duties." 20 An employee of a mining company was assisting other em- ployees to replace a derailed car, and was led to believe by the yells of "a fellow employee that the car was about to tip over up- on him. He jumped to avoid injury, and in so doing fell, strik- an open slag spout, thereby seriously injuring his leg. The court held that the injury was occasioned by a condition or conditions of the employment and therefore arose out of the employment. 21 An employee responded to a call for assistance by a fellow employee, who had been overcome by gas fumes in a vinegar vat. While endeavoring to rescue his fellow employee he was overcome by the fumes and died. There were express instruc- tions against any one entering the vat. In affirming an award, and in holding that the accident arose out of the employment, the court said: "The employer has a pecuniary interest in the lives of his employees. He necessarily relies upon their labor for the conduct of his business out of which he expects to reap a profit, and the attempt of Russel Engledove (deceased) to rescue Thomas Nelson, the servant of the vinegar company, and his 20. Ocean Accident & Guar. Corp. Ltd. v. Indus. Ace. Comm., (1919), 180 Gal. 389, 182 Pac. 35, 18 N. C. C. A. 1018; Waters v. Taylor, 218 N, Y. 248, 112 N. E. 727, L. R. A. 1917 A, 347; United States etc. Co. v. Indus. Ace. Comm., 174 Cal. 616, 163 Pac. 1013. 21. Calumet & A. Mining Co. v. Chambers, 20 Ariz. 54, 176 Pac. 839, 18 N. C. C. A. 1043; Geary v. Metropolitan St. Ry. Co., 84 App. Div. 514, 17'Am'Neg. Rep. 271, 82 N. Y. S. 1016, 16 N. C. C. A. 562. '802 ACCIDENT ARISING OUT OK COURSE OF EMPLOYMENT. 322 fellow employer, must l>e regarded ;is having been made in tin- interest and for the benefit of such common employer." 1 An employee went to the assistance of a fellow employee, who w;is working within a few feet of him but for another employer, when he was caught in a cavein. A second cavein occurred, ser- iously injuring the employee who went to the rescue, and he died from the effects of his injuries. In affirming a judgment, which held that the accident arose out of and in the course of the em- ployment the court said: "There is no question that Waters' attempt to rescue his fellow workman immediately led to his own injuries, and therefore the only debatable phase of the inquiry must be whether his general employment included and required or authorized the attempt to rescue from sudden peril which threatened his life a fellow laborer working only a few feet away on the same general undertaking, although for a different employer. It seems to us that this act should be regarded as an incident to and within the fair scope of his employment as the latter should be measured for the purposes of the workmen's compensation act. * * * It occurred while he was at work on the under- taking for which he had been hired, and therefore during the course of his employment. It was his employment which brought him where he was, and in a general sense caused him to be con- fronted with the condition and emergency which he sought to meet. His act was prompted by the relationship existing be- tween himself and a fellow workman, caused by their employ- ment on a common undertaking. It must have been within the reasonable anticipation of his employer that his employ. -ex would do just as Waters did if the occasion arose, for it is quite incon- ceivable that any employer should expect or direct his employ. .^ to stand still while the life of a fellow workman, working a few feet away, was imperiled by such an accident as occurred here, 22. Gen. Accident Fire and Life Assur. Corp. v. Evans. (Tex. Civ. App.), 201 S. W. 705, 16 N. C. C. A. 920, 1 W. C. L. J. 1148; United States Fidelity & Guaranty Co. v. Indus. Ace. Comm. of Oal., 174 Cal. 616, 163 Pac. 1013, 15 N. C. C. A. 271. 803 322 WORKMEN'S COMPENSATION LAW and it seems to us that the accident arose out of his employ- ment." 23 An employee was engaged by a lion tamer for the purpose of tak- ing care of baggage, cleaning out the cages, and to make himself generally useful, but in no event to feed the lions. While in charge of the cages, in the absence of the lion tamer, a lion escaped. In an effort to get the lion back into his cage he threw a chair at him which caused the lion to turn upon and kill the employee. There was no evidence as to how the lion escaped from the cage. On ap- peal it was held that having been left in charge of the lions it was part of his duty to endeavor to get the lion back into his cage, and that the injury arose out of and in the course of his employment. 2 * Where an employee was injured in an attempt to save one from injury who was not engaged in the employment, but was merely bothering the employees, it was held that the injury received did not arise out of the employment, no matter how commendable the act might have been. 25 An accident to a workman while attempting to stop his master's runaway horse, although his work was in no way connected with horses, was held to be an accident arising out of the employment. 29 An employee, who was engaged in different kinds of work about his employer's plant, slipped and fell into an opening, which had been made in the floor, and from which vapor and steam was escaping, making it impossible to see the opening. He fell into hot water, and screamed for help. A fellow employee ran to his assistance, and failed to see the hole for the same reason, and fell into the hot water, sustaining injuries from which he died. The court held that, it being the duty of an employer to save the lives 23. Waters v. Wm. J. Raylor Co., 218 N. Y. 248, L. R. A. 1917A, 347, 112 N. E. 727, 15 N. C. C. A. 270, Affg. 170 N. Y. App. Div. 942, 154 N. Y. S. 1149; Mihiaica v. Mlagenovich & Gillespie, 1 Cal. I. A. C. D., (1914), 174, 10 N. C. C. A. 477. 24. Hapelman v. Poole, 25 T. L R. 155, 2 B. W. C. C. 48, 10 N. C. C. A. 489 25. Mullen v D. Y. Stewart & Co. Ltd., (1908), Ct. of Sess. Gas. 991, 45 Sc. L. R. 729, 1 B. W. C. C 204, 10 N. C. C. A. 490. 26. Kees v. Thomas, (1899), 1 Q. B. 1015, 58 L. J. K. B. 539, 80 Law Times 578, 15 Times Law 301, 1 W. C. C. 9; Harrison v. Whitaker Bros., 2 W. C. C. 12, 16 Times Law Rep. 108. 804 ACCIDENT ARISING OUT OF COURSE OF 1 EMPLOYMENT. 322 of his employees, if possible, when they are in danger, it devolves upon an employee, in his employ, when occasion requires, to do all he can to save a fellow employee, when all are engaged in their employment. The failure of an attempt to rescue a fellow em- ployee will in no way affect the legal relation, and where injury results from such an attempt, the same occurs from an accident arising out of and in the course of the employment, within the meaning of the statute. 27 A street car company employee, in the performance of his duty, was trying to prevent a passenger from alighting from a moving car, when he fell or was pushed into the street, sustaining a frac- ture of the skull which caused his death. It was held that lii< death was due to an accident arising out of and in the course of his employment. 28 The duties of an employee engaged in unloading a vessel necessi- tated his presence on the quay, and not on the vessel. A fellow employee was overcome by gas in a hold of the vessel. Deceased volunteered to go down to the rescue and was lowered on the crane, but he was also overcome, and before help could be give'n they both died. The court, holding that the accident arose out of and in the course of the employment, said: "I cannot doubt that, in a sudden emergency where there is danger, a workman does not go out of his employment if he endeavors to prevent the danger from taking effect. For example, if, in a yard where a man is work- ing, a horse suddenly runs off, and there is danger to others, I would hold that, if the man did his best to stop the horse, and met with an injury, he suffered that injury in the course of his em- ployment. It would be a right thing to do, in the interest of the safety of those in the yard, and, therefore, in the interest of his master. The same would apply to the endeavor to sprag a run- away wagon, which might cause loss of life."** 27. Dragovich v. The Iroquois Iron Co., 269 111. 478, 109 N. B. 999, 10 N. C. C. A. 476; Hully v. Moosbrugger, 87 N. J. L. 103, 93 All. 79, 3 N. a C. A. 283. For digest of this case see "Sportive Act." 28. Miller v. Public Service Ry. Co.. 35 N. J. L. J. 115, 10 N. C. C A 479. 29. London ft E. Shipping Co. v. Brown, 7 P, 488, 42 Sc. L. R. 357, 10 N. C. C. A. 483; Aitken v. Finalyson. Bousfleld ft Co., Ltd., (1914), W. C. 805 323 WORKMEN'S COMPENSATION LAW A load of coal became mired, and the team hitched thereto was unable to move it. The driver requested plaintiff, a passerby, to assist in removing it, and while so doing he was injured. It was held that the driver had implied authority to employ someone for this temporary purpose, and that the plaintiff became the em- ployee of the coal company for the purpose of rendering this assis- tance, and was entitled to the protection of the Workmen's Com- pensation Act. 30 Where a millwright, on leaving the plant long after customary working hours discovered a fire in the plant and returned to the building to put it out, and lost his life in the fire. The court, in holding that the death resulted from an accident arising out of and in the course of the employment, said : ' ' He must have enter- ed the building voluntarily, and knowing the possibility of danger in so doing from its being then on fire. But it is a reasonable inference that he did so for either one or both of these purposes : (1) Under the specific duty devolving upon him to have charge of and look after the valuable patterns essential for the work be- ing done by his employer ; (2) from the sense of obligation to use a reasonable amount of care to save his employer's property at a time of such emergency. As to each of these it needed no specific instructions from any superior to perform such services or volun- tarily assume such responsibility while making an effort within the field of reasonable care to save the property of his employer. While so doing he cannot be considered, as a matter of law, to be a stranger. McPhee's Case, 222 Mass. 1, 4, 109 N. E. 633, 10 N. C. C. A. 257 ; Munn v. Ind. Brd., 274 111. 70, 113 N. E. 110, 12 N. C. C. A. 652. We do not think that either the letter or the spirit of the Workmen's Compensation Act requires that such em- ployee should be penalized for obeying such a natural and com- mendable instinct on his part. ' ' 31 & Ins. Rep. 398, (1914), 2 Sc. L. T. 27, 51 Sc. L. R. 653, 7 B. W. C. C. 918, 10 N. C. C. A. 483. 30. State ex rel. Nienaber v. Dist. Court of Ramsey Co., 138 Minn. 416, 165 N. W. 268, 1 W. C. L. J. 642. 31. Belle City Malleable Iron Co. v. Rowland. 170 Wis. 293, (1919), 174 N. W. 899, 5 W. C. L. J. 333; Munn v. Indus. Bd., 274 111. 70, 113 806 ACCIDENT ARISING OUT OF COURSE OF EMI'UJYMKXT. i A fircuiiin, in the fire department of the civil administration under the Isthmian Canal Commission, was injured while assisting in extinguishing a fire which had broken out in a building in Colon. The place where he sustained his injuries was without the limits of the Canal /one. It was held that the man acted in an emer- gency, and the fact that he was without the limits of the territory under the control of the United States, was not under these cir- cumstances, sufficient, to exclude him from the operation of the act* 1 Two butcher boys were employed on a wajjon, and one fell oil' ami was injured. A bystander volunteered to ride home on the wagon in order to assist in caring for the injured boy. On the way home the volunteer bystander fell off and was injured, and sought to hold the master liable on the gounds of implied authority of the driver to hire a person in the case of an emergency. The court held that there was no such implied authority and dismissed the case/ 3 An employee, who was left in temporary charge of machinery, was injured when he attempted to remove a belt to prevent its burning, when some of the machinery got out of gear. It was held that the injury arose out of the employment. 34 "Where a demonstrator of automobiles, fearing a collision, threw out his arm to protect himself, and his arm was broken, it was held that the injury arose out of the employment. 35 A laborer fell and sustained injuries when attempting to get away from the danger zone where a blast was to be set off. It was held that he sustained injuries arising out of the employment. 38 323. Erysipelas. Where an employee suffered from ery- sipelas, which originated from the infection of a pimple on his face, it was held that, in the absence of any showing that the in- N. E. 110; Alexander v. Indus. Bd., 281 111. 201, 117 N. E. 1040. 1 W. C L. J. 313. 32. Re James Nellis, Op. Sol. Dep. C. ft L. p. 221. 33. Houghton v. Pilkington, 107 L. T. R. 235. 34. Blackford v. Green ft Pieraon, 37 N. J. L. J. 279. 35. Todd v. Drouet ft Page Co., 3 N. Y. St. Dep. 351, 12 N. C. C. A. 178. 36. Catardi v. Bridgeport Contracting Co., 4 N. Y. St. Dep. 410. 807 324 WORKMEN'S COMPENSATION LAW fection came from anything connected with the employment, it could not be said that the injury arose out of the employment. 37 324. Explosions. A station agent was injured by an ex- plosion, as the result of pouring kerosene upon live coals. The rules of the company forbade the use of kerosene in this manner. It was contended that the employee had added risk to his employ- ment, and therefore the accident did not arise out of the employ- ment. On appeal, the court, in > affirming a finding that the acci- dent arose out of the employment, said: "A peril which arises from the negligent or reckless manner in which an employee does the work which he is employed to do may, in many cases, be held to be a risk incidental to the employment; and the same is true where he performs an authorized act in a forbidden manner, a dis- tinction being taken in this regard from cases in which the act is altogether outside of, and unconnected with, the employment Here the agent was rightfully and properly attempting to start a fire, but carelessly used the wrong kind of kindling. This was not a conscious, voluntary choice between a safe and dangerous way to do his duty, but a careless use of a combustible, which care- less use endangered his life and seriously injured him, but just such a careless use as was frequently made of kerosene by the sta- tion agents of the defendant and such a use as might be likely to result from the employment. ' ' 38 A traveling salesman for chemical compounds was killed as the result of an explosion in a creamery, where he had gone to sell soda and alkali. It was contended that, while the accident occurred in the course of the employment, it did not arise out of it. The commission found that the accident arose out of the employment, and the court on appeal unanimously affirmed the award. 39 An electrician was severely injured by the explosion of a dyna- mite cap, when he lighted a match for the purpose of smoking a cigarette upon his arrival in the morning at the place of employ- 37. Miller v. Libby & Blinn, 1 Conn. C. Dec. 377. Note: See. 184 ante. 38. Benson v. Bush, 104 Kan. 198, (1919, 178 Pac. 747, 3 W. C. L. ,T. 629, 18 N. C. C. A. 1026. 39. Cain v. United Breeder's Co., 224 N. Y. 568, 120 N. E. 858, 17 N. C. C. A. 938. 808 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 324 ment. The use of dynamite caps was common in certain branches of the employment, but there was nothing in the evidence to ac- count for the presence of a dynamite cap in that particular place. In holding that the injury arose out of and in the course of the employment, the court said: "It arose in the course of the em- ployment because of the fact that it occurred when the employee was at his place of work ready to begin his duties. A causal con- nection between the employment and the injury * * * is shown by the use of dynamite caps upon the premises and the presence thereof in the room where the plaintiff was regularly employed. It is apparent that plaintiff had no reason to anticipate the pres- ence of dangerous explosives in the building where he was em- ployed. It is true he did not, in the course of his employment, have anything to do with dynamite caps, nor was he ordinarily exposed to any hazard on account of the presence and use thereof by de- fendant upon the premises; but they were used by the defendant. That the legitimate use thereof was confined to parts of the prem- ises remote from the building in which the accident occurred does not necessarily relieve the master from the duty to make compen- sation under the act to a servant, injured by the explosion of a dynamite cap in a part of the premises which ordinarily, and under the rules of the master, is free from danger on account thereof. The commissioner did not find that plaintiff took the ex- plosive into the building where the accident occurred, and cul- pability upon his part causing the injury is not shown by evidence of fellow workmen that some time later they found a dynamite cap in a pocket of his overalls, which they took from a locker in which plaintiff kept them." 40 Where a miner was killed as the result of an explosion ;md the evidence was conflicting on the question as to whether the death was due to an accident or suicide, the 1 court, in holding that the death was due to an accident arising out of the employment, said : "Other facts and circumstances are mentioned in the testimony, most of them unimportant and none or all of them conclusive of either theory. If death is not the result of suicide, the employer 40. Rish v. Iowa Portland Cement Co.. Iowa , 170 N. W. 532, (1919), 3 W. C. L. J. 463, 18 N. C. C. A. 1032. 809 324 WORKMEN'S COMPENSATION LAW must respond. The evidence may be too meager to establish af- firmatevely either accident or suicide, but when violent death ?s shown, the presumption arises that it was not self-inflicted. 'As between accident and suicide the law for logical, and sensible reasons supposes accident,' until the contrary is shown. * * * The evidence is surely not conclusive of suicide. We conclude that the determination of the trial court that death was accidental is sustained." 41 Where a brewery employee was severely burned, as the result of an explosion occurring in the course of his employment, and later died of Miliary tuberculosis, and the medical testimony was to the effect that the disease was due to the accident, the court held that the evidence was sufficient to justify a finding that death was caused by an accident arising out of and in the course of the employment. 42 An employee of an oil company engaged a man temporarily to assist him in placing a flywheel on a gasoline engine. In doing so an explosion occurred, killing both men. The case was reversed on other grounds, but the court said, with reference to the con- tention that deceased was not an employee. "We think there is no merit in the contention of the insurance carrier that Tillbnrg was not in the employ of the owners of the lease. Bacon appears to have had authority to hire such incidental he'lp as might be necessary in the operation of the lease." 43 Where an employee was killed by an explosion which occurred on the premises of his employer, while the employee was off duty and engaged in his own personal duties, it was held that the ac- cident did not arise out of the employment. 44 Where an employee in a bakery was injured by an explosion of natural gas, used for heating ovens, which explosion was due to 41. State ex rel. Oliver Iron Mining Co. v. District Court of St. Louis Co., 138 Minn. 138, 164 N. W. 582, 15 N. C. C. A. 526. 42. Heileman Brewing Co. v. Schultz, 161 Wis. 46, 152 N. W. 446, 15 N. C. C. A. 643. 43. Gillburg v. McCarthy & Townsend, 179 N. Y. App. Div. 593, 166 N Y. S. 878, 15 N. C. C. A. 449. 44. Brienen v. Wisconsin Public Service Co., 166 Wis. 24, 163 N. W. 182, 15 N. C. C. A. 289. 810 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 324 the negligence of the employer's foreman, it was held that he sus- tained an injury arising out of the employment, within the mean- ing of the act. 45 Where an employee was killed by an explosion while carry i MI: powder from a storehouse to a place in the mine where it was to be used, it was held, in the absence of a showing of what caused the explosion, that the accident occurring while deceased was per- forming his duties was sufficient to sustain a finding that the acci- dent arose out of the employment. 46 "Employer and employee were killed by the same accident, which was the explosion of an ammonia tank. For the prosecutor it is claimed that there is nothing in the evidence to support a finding by trial court that the accident arose out of and in the em- ployment. The fact are substantially as follows: Botkin was in the 1 wholesale milk business; Mankowitz was his son-in-law, and described by the witnesses as his right-hand man. The evidence justified the 1 conclusion that he was Botkin 's general utility man. Botkin had a creamery at Whitehouse, N. J., from which he seems to have obtaned most of his milk, and he visited it once a month or Mdnnowitz did for him. to pay off the 1 farmers, and attended to the disbursements generally. Also Botkin had orgainized a corporation called the Interstate Milk & Creamery Company, of which Man- kowitz was to be manager and director; one Ellis, Botin's book- keeper, was also to be a director, and the testimony is that when this concern actually began operations, Botkin was to give 1 up his private business and turn it all over to the Interstate ; Mankowitz was then to cease being Botkin 's manager, and apparently the whole business was to undergo a transformation into the Interstate con- cern. The formal organization seems to have beecame nauseated and dizzy, and sustained a fall due to such dizziness, resulting in concussion of the brain, it was held that, in the absence of a showing that the bay was rough or th>- \\vather bad, applicant had failed to i-stahlish a case of accident arising out of the employment. 70 A buyer and department store manager became faint, fell, and sustained injuries, while in a bathroom of a hotel during a business trip. It was held that the accident did not arise out of the em- ployment. 71 328. Falling Objects. An apartment building janitress, who received free use of an apartment and a small wage, was in- jured by falling plaster as she was about to sit down to breakfast in her own apartment. In holding that the accident did not arise out of the employment,the court said: "The case is no different than it would be if the claimant, although janitress of the building in question, had occupied an apartment in another building and the accident had there occurred. In no proper sense can it be said that she was janitress of her own apartment, merely because it happened to be a part of the building of which she was the jani- tnss. In her own apartment she presided over her household affairs and was serving, not her employers, but herself and her family. If this award can be sustained, so also it should be sustain- ed if the plaster had fallen on her at night while she was sleeping, or while doing any ordinary housework for the requirements or convenience of her family. At the timo of the accident she was doing nothing for her employers, nor anything incidental thereto. lit r duly to them did not require her presence in her apartment. What she was doing was personal to herself. It was entirely dis- associated witli the work of her employers." T1 70. Van Winkle v. O. S. Johnson * Co., 2 Cal. I. A. C. 212. 71. Jacobs v. Davis Schonwasser Co., 2 Cal. I. A. C. 938. Note: See 188 ante. 72. In re Lauterbach. (1919), 189 App. Div. 303, 178 N. Y. S. 480, 5 W. C. L. J. 100. 819 328 WORKMEN'S COMPENSATION LAW Where an employee was carrying a plank to a saw and dropped it upon his toe, thereby injuring the toe, the court held that the evidence was sufficient to justify a finding that the injury arose out of the employment. 73 A restaurant dishwasher was injured when the ceiling fell upon her. The cause of the fall was the overloading of the floor above over which the master had no control. It was held that the injury arose out of the employment. 74 Where a teamster, while driving his employer's team on a street, was killed when a beam fell from a building under construction, it was held that the injury arose out of the employment. 75 Where a domestic servant lost the sight of an eye as the result of plaster falling into it when she was arising in the morning, it was held that the accident arose out of the employment. 76 Where a wagon bed suspended by ropes fell upon an employee while asleep and killed him, the Q0urt in awarding compensation to his dependents said: " Bollman 's employment was not for cer- tain hours of each day, with no obligation to his employer for the remaining hours of the 24, as is usual in employment contracts. By the terms of his agreement, Bollman was required to leave l>is own domicile, and travel from farm to farm with the threshing outfit, to stay of nights on the premises where the machine happen- ed to be, and as watchman guard and protect it from fire and tres- passers. Since he was not only to act as engineer in the oper- ation of the machine, but was to remain overnight and act as watchman, it must be presumed that it was not the intention of the parties that Bollman was to remain awake through e'ach night, but rather that he should sleep on the premises where the machine was left, and be ready for such emergency as might arise. It can- not be said that Bollman could not, and did not, render service to his employer while asleep, though it is not stated that he was asleep at the time of the accident, but that he "had retired in the 73. Mallory's Case, 231 Mass. 225, 120 N. E. 591, 17 N. C. C. A. 941. 74. Kimbol v. Indus. Acci. Comm., 173 Cal. 351, 160 Pac. 150, L. R. A. 1917B, 595, Ann. Gas. 1917E, 312. 75. Mahowald v. Thompson Starrett Co., 134 Minn. 113, 158 N. W. 913 76. Alderidge v. Merry, (1912), Ir. Ct. of Appeal, 6 B. W. C. C. 450. 820 ACCIDENT ARISING OUT OP COURSE OF EMPLOYMENT. 329 driveway of the barn for the night." Under the facta stated; be had, as had long been his custom, placed himself not far from the property, so that the noise made by trespassers might the more easily awaken him should he be asleep, and so that he could the more quickly reach the property should help be needed. The ac- cident which caused Bollman's death was due to a hazard to which he would not have been exposed apart from his employment. The accident was the result of a risk which was reasonably incidental to the employment. We therefore hold that the death of Bollnian was by accident arising out of his employment by Lewellen, aee Chitty v. Nelson L. R. A. 1916A, 58, note; Moyse v. Northern Pacific R. Co., 41 Mont. 272, 108 Pac. 1062 ; Haller v. City of Lan- sing, 195 Mich. 753, 162 N. W. 335, L. R. A. 1917B 324."" 329. Frost Bites and Freezing. A woodsman, misunderstood his orders and worked at the wrong place, and upon discovering his mistake went to the proper place and worked so much harder than usual in preparing for the 1 next day's drive that his feet per- spired and were consequently frozen. On appeal, the court, in holding that the injury was due to an accident arising out of and in the course of the employment, said: "Injury by freezing is certainly not peculiar to the industry in which the defendant Beaulieu was engaged. Did the nature of Beaulieu 's employment expose him to a hazard from freezing which was substantially in- creased by reason of the services which he was required to per- form. * * * On the day in question by reason of the mistake, the defendant Beaulieu worked harder than he ordinarily did, es a result of which his feet became wet from perspiration, a cir- cumstance which made them much more susceptible to cold, and as a consequence thereof his feet were froze. It seems clear that the hazard to which the defendant Beaulieu was exposed was 3ne which was incident to and can be fairly traced to his employment as a contributing cause, and that he would not have been equal'y exposed to such a hazard apart from his employment. If the de- fendant Beaulieu while engaged in his work had wet his feet by stepping into an open spring and the freezing had resulted there- 77. In re Bollman, Ind. App. , (1920), 126 N. E. 639. 5 W. C. L. J. 881. 821 329 WORKMEN'S COMPENSATION LAW from, it could scarely be claime'd that the injury was not proximately caused by accident. In this case, the condition of his feet was due to extra exertion caused by reason of a misunderstanding as to or- ders. Because there would be no logs for hauling in the morning, he was required to put forth an unusual and extra effort, which made him more susceptible to cold than he otherwise would have been. It is clear that the exposure of the defendant Beaulieu to injury by freezing was substantially increased by reason of the nature of the services which he was obliged to render. "We think it must be held that the injury for which compensation was award- ed was proximately caused by accident within the meaning of the act." 78 Applicant, an employee of a railroad construction company, worked in the open air from 7 a: m. until 5 or 6 p. m. when the temperature was about 60 degrees below .zero. He was cutting a roadway and wore two pair of woolen socks, felt boots and rub- bers. The felt boots were in bad condition. "When he started to work in the morning his feet were in good condition and in the evening at the close of work they were frozen. In affirming judgement, the court said: "It seems to me 1 to be a forgetting of the words of the statute ' arising out of his employment ' to say that all persons engaged in similar work were subject to the same risk. Admit that they were * * * To say that applicant was not ex- pose'd to any more special risk than ordinary persons engaged in out-door work simply means that the applicant might be one of a large class of persons exposed to a risk arising out of their em- ployment. You might as well say that a man working in a factory who was struck by a falling board or bar should be disentitled to compensation because all persons working in factories are liaole to have that happen to them. Simply because you can discover or describe a class of workmen who are generally exposed to such a risk and find the applicant to be one of that class seems to me . to be no valid reason for refusing him compensation or for say- ing that his injury did not arise out of his employment. People who are not employed at all do not kick around in the snow when 78. Ellingson Lbr. Co. v. Indus. Comm. of Wis., 168 Wis. 227, 169 N. W. 568, 3 W. C. L. J. 215, 11 N. C. C. A. 1003. 822 ACCIDENT ARISING OUT OP COURSE OF EMPLOYMENT. 329 it is 60 degrees below zero. People who are employed as waiters in a comfortable hotel are not exposed to frostbites. * * * It was because he was so employed that the applicant was exposed to the risk, and I see no reason for excluding his case from the words of the statute because you can discover other people whose em- ployment similarly exposed them. Upon that principle no man could recover if you could show that a group of other people were exposed in the course of their employment to similar risks." 79 "The court of cassation has held several times in France that as a ru'e the Statute of April 9th, 1898, does not cover accidents due to the forces of nature even though they occur in the course of the employment. Nevertheless if the employment has contrib- uted to the bringing into play of these forces, or has provoked or aggravated its effects, then the accident falls .within the statute, according to the court of cassation. Thus, as a general prineip'e. the employer is not responsible for damages caused to his work men by lightning, storms sunstroke freezing, earthquakes, floods, etc. These are considered as 'force majeure,' which human vig- ilance and industry can neither foresee nor prevent. The victim must bear alone such burden, inasmuch as human industry has nothing to do with it and inasmuch as the employee is no more sub- ject thereto than an other person. This is, says Loubat (Lo Risque Professional No. 504), what Mr. Lion Say called 'the great professional risk of humanity.' Every human being is liable to suffer from events in which he has no share of responsibility. There is here between the accident and the employment no relationship of cause and effect. Hence it cannot be said of such an accident that it arises out of or in the course of employment. But where the work, or where the conditions under which it is carried on, expose the employees to the happening of a force majeure event or contribute to bring it into play or to aggravate its effects, then \ve are no longer face to face with the sole forces of nature. This is no longer a risk to which everybody is exposed. This is a danuer which threatens more particularly the employees who work under special conditions. Hence the occurring of a force majeure event 79. Nikkiczuk v. McArthur, 9 Alta. 503, 28 Dom. L. 279, 15 N. C. C. A. 682. 823 331 WORKMEN'S COMPENSATION LAW under such circumstances is an accident arising out of the employ- ment." 80 A seaman at work on his ship sustained a frostbite. The judge found that the workman had not proved that the frostbite was due to any particular circumstance in connection with his employment or that he had been exposed to any unusual risk. It was held that the accident did not arise out of the employment. 81 330. Gangerene Resulting From Injury. Where a gate- keeper, on a road under construction, had his foot crushed while opening a gate to allow a truck to pass, and the foot became gan- grenous, resulting later in the death of the gatekeeper, the court held that the accident arose out of and in the course of the em- ployment. 82 331. Glanders. Where a stableman contracted glanders as the result of caring for a horse infected with that disease, the court, in denying that the death was due to an accident arising out ot the employment, said: "Glanders cannot be differentiated from other diseases by the fact that ordinarily it is a disease which affects a horse rather than a human being, for it cannot matter whence the bacteria have proceeded which set up disease within the human body. Anthrax is a disease which commonly affects sheep and cattle, and is communicable from them to man, yet of the effects of anthrax it was said in Bacon v. U. S. M. A. Ass'n, supra : ' The difference between the cause of this condition and the causes of typhoid fever, tuberculosis, smallpox, scarlet fever, and such like diseases, is that this particular condition is caused by different bacilli from the others and they come in contact with 80. The Canada Cement Co. v. Pazuk, 22 Que. K. B. 432, 12 D. L. R. 303, 7 N.C. C. A. 982; Warner v. Couchman, L. R., (1911), 1 K. B. 351, 1 N. C. C. A. 51. See Savage v. City of Pontiac Mich 183 N. W. 798. 81. Karemaker v. S. S. "Corsican" (owners of) 4 B. W. C. C. 295, (1911), 6 N. C. C. A. 708; Dorrance v. New England Pin Co., Conn. Super. Ct., 1 Nat. Comp. Journ., (1914), 23, 6 N. C. C. A. 709. Note: See 192 ante. 82. Doherty v. Grosse Isle Tp., 205 Mich. 592, 172 N. W. 596, (1919), 18 N. C. C. A. 1030, 4 W. C. L. J. 222. Note: See 194 ante. 824 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 332 the skin or enter into its pores, while in the other cases they are- generally breathed in.' Except that the bacilli differ, glanders does not differ from the diseases named in the quotation. We think that for legal purposes glanders is a disease which, when contracted without previous accidental injury occurring in the- course of employment, cannot be classed under the Workmen's Compensation Law of this state as an accidental injury arising out of and in the course of employment. We therefore conclude that the question should be answered in the negative, the award reversed, and the claim dismissed. " 83 332. Heart Disease. An employee, engaged in bailing scrap copper, was found dead near the baling press, with a completed bale of copper beside him, and there was no evidence of accident, but it was claimed that the heavy work deceased was doing hasten- ed his death by heart and kidney disease. In holding that the death was not due to an accident arising out of the employment, the court said: "In this case there was no evidence tending to prove any accident or accidental injury to the deceased. There was no mark upon his person, and nothing from which it could be inferred that an accident had occurred, and it is not claimed that there was any accident, but only that the heavy work which he was doing in the ordinary course of his employment caused or hastened his death." 84 A laborer slipped and fell against the lever of a machine he was operating, and received a blow over the heart, and in a few days died. A physician testified that a blow over the heart would cause acute disease, and in the case of deceased it brought on a condition known as pericarditis. The court held that, in considera- tion of all the evidence, there was a sufficient showing that the accident arose out of and in the course of the employment, and that such injury proximately caused his death. 85 83. Richardson v. Greenburg, 188 App. Div. 248, (1919), 176 X. Y. S. 651, 4 W. C. L. J. 433. 84. Jakub v. Indus. Comm., (1919), 123 N. E. 263. 288 111. 87, 4 W. C. L. J. 153. 85. Bucyrus v. Townsend, 64 Ind. App. , 117 N. E. 565, 15 N. C. C. A. 646, 1 W. C. L. J. 166; Insana v. Nordenholt Corp., 118 N. Y. S. 83, (1920), 6 W. C. L. J. 478. 825 332 WORKMEN'S COMPENSATION LAW A foreman fell while sweeping pebbles off a paving, and later died. An autopsy revealed that his fall resulted in a fracture of the skull, and that the fall was probably due to heart syncope to which the previous condition of the heart predisposed it. In re- versing an award in claimant 's favor, the court held that there was no evidence to sustain the finding of the commission that deceased's death was accidental or that it arose out of the employment. 86 Where a cook on a lighter, who was suffering from valvular disease of the heart, in attempting to save some of his clothes when the vessel began to sink, so aggravated the disease by his exertions and excitement that he died, it was held that his death arose out of and in the course of his employment. 87 A bus driver fell from his bus and later died. The evidence was conflicting as to the cause of the fall. The court held that it was more probable that death was caused by a sudden fatal heart at- tack than that it was caused by an accidental fall aggravated by the state of the heart. The judge also found that the applicant had failed to prove that the accident arose out of the employment. On appeal this finding was affirmed. 88 A woman, compelled to over exert herself while pulling carpet in a manufacturing establishment, aggravated a previous condi- tion of weak heart, thereby totally incapaciting herself for work. The court held this to be an accidental injury and that it arose out of the employment, as the pulling of the carpet, although not requiring such putting forth of muscular power as would affect a healthy person, still in the case of this woman, might have been sufficient to cause the injury and would be regarded as the proxi- mate cause. 89 A workman, employed in loading heavy bags on trucks, fell and died soon after pushing a truck away which he had just loaded. The medical testimony was to the effect that a condition of fatty degeneration of the heart existed, but not in such a stage as to 86. Collins v. Brooklyn Union Gas. Co., 171 N. Y. App. Div. 381, 156 N. Y. S. 957, 15 N. C. C. A. 647. 87. In re Brightman, 220 Mass. 17, 107 N. E. 527, 8 N. C. C. A. 102; Winter v. Atkinson Frizelle Co , 37 N. J. L. J. 195, 11 N. C. C. A. 180. 88. Thackway v. Connelly & Sons, 3 B. W. C. C. 37, 8 N. C. C. A. 106. 89. In re Madden, 222 Mass. 487, 111 N. E. 379, 14 N. C. C. A. 539. 826 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 333 cause death in the absence of a strain. The court held that the evidence justified a finding that the man died from a strain aris- ing out of and in the course of the employment. 00 An employee, who was suffering from a weak heart, sustained an electric shock and died. The evidence was conflicting as to whether the death was due to an accident or to natural cau-'->. The hoard found that the death was due to an accident arising out of and in the course of the employment. 81 It has been held that an incapitating injury to the heart through influenza contracted by reason of the employee's special xposmr to the disease at the employer's request to aid oilier ID ploy ees, was compensable under the California Act. 92 333. Heat Stroke and Sun Stroke. Where an employee suffered a sunstroke, the board found that the injury arose out of and in the course of his employment. In affirming the award on appeal, the court said: "On all the evidence the board was war- ranted in finding that the employee's injury arose out of his em- ployment. The place where he worked was a pit, with banks winch attracted the extreme heat and shut off the air, except from the south. The nature of his work required him to remain at it steadily. The board well might find as a fact that the location and nature of the work peculiarly exposed the employee to the danger of sunstroke; in other words, that the risk of injury by sunstroke was naturally connected with and reasonably incident to his employment, as distinguished from ordinary risk to whi -u the general public is exposed from climatic conditions per se. Mc- Manaman's Case, 224 Mass. 554, 113 N. E. 287; Mooradijiau 's Case. 229 Mass. 521, 118 N. E. 951 ; Hallett's Case, 121 N. E. 50*, Jan. 13, 1919; Morgan v. Owners of Steamship Zenaida, 2 B. W. C. 90. Doughton v. Alfred Hickman, Ltd., (1913), W. C. & Ins. Rep. 143, 6 B. W. C. C. 77, 8 N. C. C. A. 103; Trodden v. T. M. Lennard & Sons, Ltd.. 4 B. W. C. C. 190, 8 N. C. C. A. 103. 91. Western Electric Co. v. Indus. Comm., 285 111. 279, 120 N. E. 774, 3 W. C. L J. 107. 92. Engels Copper Mng. Co. v Indus. Comm.. Cal. , 192 Pac. 845, 6 W. C. L. J. 624. Note: For further cases on heart failure or disease see 197 ante. 827 333 WORKMEN'S COMPENSATION LAW C. 19 ; Davies v. Gillespie, 5 B. W. C. C. 64 ; Kanscheit v. Garrett Laundry Co., 101 Neb. 702, 164 N. W. 708 ; State ex rel. Rau v. District Court, Ramsey County, 138 Minn. 250, 164 N. W. 916, L. R. A. 1918F, 918; Hernon v. Holahan, 182 App. Div. 126, 169 N. Y. Supp. 705. " 93 Where a coal hauler suffered from sunstroke while unloading coal, the court said : * ' Speaking more specifically upon the sub- ject of exposure as a factor in determining whether a resulting in- jury is to be regarded as arising out of the injured person's em- ployment, we said that the test was to be found in the answer to the inquiry whether or not the employee was injured as a result of a greater exposure to the cause of injury than that to which persons generally in that locality were subjected. 90 Conn. 309, 97 Atl. 322, L. R. A. 1916E, 584. In Ahren v. Spier, 93 Conn , 105 Atl. 340, we reiterated the same principle in substance, when we said that: 'An employment will be the proximate cause of an injury when it is the natural and necessary incident of the em- ployment or when the employment brings with it greater expo- sure to injurious results than those to which persons generally in that locality are exposed, and such injurious result occurs in tfre course of that employment.' The commissioner's finding in the present case is that the deceased's exposure was far greater than that of the community generally, and the risk from heat and the effects of the sun substantially greater than that of the community. Applying the prescribed test to these facts as found, the right of the claimant to receive an award of compensation ig established if the finding is to stand. The reasons why it should not stand are not apparent to us. Conditions indicative of the deceased's special exposure to risk from the effects of the sun and heat are not to be sure, as pronounced as they are in the case of the heat victim in Ahern v. Spier, 93 Conn. , 105 Atl. 340. But the subordinate facts found plainly disclose the existence of such con- ditions. Cunningham, at the time he was overcome, was 93. McCarthy's Case, 232 Mass. 557, 123 N. E. 87, 4 W. C. L. J. 96; Hernon v. Holahan, 182 N. Y. App. Div. 126, 169 N. Y. S. 705, 1 W. C. L. J. 1120, 17 N. C. C. A. 1001; Dougherty's Case, Mass. , (1921), 131 N. E. 167. 828 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 333 engaged in shoveling coal, a task alike strenuous and well calculated to aggravate the normal effects of a superheated atmosphere and the rays of a hot sun. He was shoveling coal from a wagon which presumably from its use, was blackened with coal dust, and therefore especially attractive of the sun's rays. As he was shoveling he necessarily disturbed the coal, thus presum- ably discharging into the air he breathed more or less dust. It is apparent, therefore, that his employment differentiated his expo- sure to physical harm from that to which the members of the com- munity generally were exposed. The peril which he faced was made up, not merely of the conditions produced by the heat and the rays of the sun beating down upon him, but of those condi- tions, plus those other aggravating ones which attended the work which he was doing in the pursuit of his employment." 94 A coal shoveler suffered sunstroke while unloading coal. In hold- ing that the accident arose out of and in the course of the employ- ment the court said : ' ' This untoward event or unexpected condition under which Ahern's work was carried on therefore constituted an accident which directly and contemporaneously caused this lo- calized abnormal condition. We conclude that under authority of our decisions Ahern's death from sunstroke was a compensable in- jury. The second question, 'whether Ah ren was exposed to such risk as to make the results thereof compensable, ' is determined by ascertaining whether the sunstroke arose ' in the 1 course of and out of his employment. ' It clearly appears that he was doing what he was. employed to do when he 1 was stricken ; hence the sunstroke did occur in the course of his employment. 'An injury "arises out of" an employment when it occurs in the course 1 of the employment and as a proximate cause 1 of it.' Larke v. Hancock Mutual Life Ins. Co., 90 Conn. 303, 97 Atl. 320, L. R. A. 1916 E. 584. An employ- ment will be a proximate cause of an injury when it is the natural and necessary incident of the employment, or when the 1 employment brings with it greater exposure to injurious results than those to which persons generally in that locality are exposed, and such in- jurious result occurs in the course of the employment. Larke v. 94. Cunningham v. Donovan. 93 Conn. 313. (1919), 105 Atl. 622, 3 \V C. L. J. 584, 18 N. C. C. A. 1024. 829 333 WORKMEN'S COMPENSATION LAW John Hancock Life Ins. Co., supra. The finding explicitly brings this case within this rule. It does appear that the sunstroke 1 was an incident of Ahern's employment. And that his exposure and risk to sunstroke in this employment was far greater than that of the rest of the community. This is the final test applied by us in the Larke Case. That Ahern was not exposed to sunstroke in greater degree than others in the same employment, and than many other out-of-door workers, we hold to be immarterial, as we did in the Lake Case." 95 Where a brewery driver died as the result of a sunstroke, the commission found that the heat prostration resulting in the death of decedent was an accidental injury arising in the course of his employment but not out of it. Affirming the decision, the court said: "Cases of sunstroke and frostbite, both arising from extreme weather conditions, although of opposite extremes, seem to be analogous. The distinction between those cases and the present case, made by the commission itself, indicates that the commission is under no misapprehension as to the legal question involved, and that its determination herein is based on the belief that the work in which the deceased was engaged did not contribute to his death. * It was a question of fact for the commission to determine whether the deceased was specially affected by th>3 severity of the heat by reason of his employment. Although earlier in the day his duties required him to unload a large number of half barrels of beer, he had completed that work and was returning to the brewery. It does not appear how long an interval of time elapsed between the unloading of the beer and his death. He was accompanied by an assistant, who presumably exerted himself as much as the deceased, and who testified that he did not work harder on hot days than on other days, and that he was not special- ly affected by the heat, except that it caused him to prespire. There was a large umbrella on the wagon as a protection from the rays of the sun: Apparently the deceased was returning from Flushing to New York, and while riding along the highway in the ordinary manner he was overcome by the heat. From all the circumstances, 95. Ahern v. Spier, 93 Conn. 151, 105 Atl. 340, 3 W. C. L. J. 221, 18 N. C. C. A. 1027. 830 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. the commission was justified in drawing the inference that the heat prostration which caused his death did not arise 'out of his employment and that conclusion is not reviewable 1 . "'* Where an employee became overheated and died from the effects of the injury, the court, in affirming an award, said: "There would have been no injury if the business had not existed. The heat and humidity, the corrugated sheet iron in the building, the tarred, roof, the poor ventilation, and the dust and particles of matter in the air, all acting together, caused the sickness that brought about the death of the decedent. A stronger man might have lived, but it is enough that the industry brought about this man's death. An accident is an event which proceeds from an unknown cause, or is an unusual effect of a known cause, and therefore not expected. * * * It is our view that compensa- tion is a charge against the industry because the industry itself is responsible for the injury. As applied to this case it may be fairly assumed that plaintiff's decedent would not have died at the tim. he did but for the fact that he went to the factory on a hot day and worked in a heated building. Held, the death was an acci- dent in the sense that it was unexpected, and it was not such a result as would naturally follow the employment, but grew out of it and the decedent died because of it." 97 A street laborer suffered from sunstroke, and died a few days later. The court held that the accident arose out of the employ- ment, since there was a substantial normally increased risk, due to the character of the street, coupled with its moist condition, which contributed to the cause of the accident. 98 Where a plumber, laying and jointing pipes in a trench in a road, was required to stoop a great deal, and suffered from a heat 96. Campbell v. Clausen-Flanigan Brewery, 183 App. Div. 490, 171 N. Y. Supp. 522, 17 N. C. C. A. 1001, 2 W. C. L. J. 676. 97. Young v. Western Furniture and Mfg. Co., 101 Neb. 696, 164 N. W. 712, 15 N. C. C. A. 676; City of Joliet v. Indus. Comm., -- 111. , (1920), 126 N. E. 618, -5 W. C. L. J. 802. 98. State ex rel. Rau v. District Court of Ramsey County, 138 Minn. 250, 164 N. W. 916, 15 N. C. C. A. 679; Maskery v. Lancashire Shipping Co., Ltd.. (1914), W. C. & Ins. Rep. 290, 6 N. C. C. A. 708. 831 334 WORKMEN'S COMPENSATION LAW stroke caused by the excessive summer heat, it was held that this was not an accident and did not arise out of the employment." Where natural heat is intensified by artificial means, the tend- ency is to place the injury on the same footing as heat prostration from artificial heat, and to treat an injury resulting therefrom as arising out of the employment. Thus, where a seaman suffered from blindness while working on a blackened steel deck for some hours in the blazing sun, with no shade, while in a port in Hayti at a temperature of 108 and 120 fahrenheit, it was held that the employment involved special exposure to the risk of sunstroke and that the accident arose out of the employment. 1 The English decisions hold that heat prostrations are injuries arising out of the employment, when the prostration was due to artificial heat used in connection with the workman's employment. Thus, it was held that one who suffered from heat prostration while drawing ashpits in a furnace room had sustained an injury arising out of the employment. 2 334. Hemorrhage. A steam fitter's helper, who was en- gaged in tending a boiler for his employer, attempted to move heavy steel ''I". beams, which rested about three feet from the floor, by pushing his body against them. He threw his weight into this exertion several times, when he suddenly became weak, and was compelled to sit down and cease work for the remainder of that day, but worked the next day. The following days he grew worse, vomited, blood, and was unable to work thereafter. Defend- ant contended that the removing of the "I" beams was not with- 99. Robson, Eckford & Co., Ltd. v. Blakey, (1912), S. C. 334, 49 Sc. L, R. 254, 5 B. W. C. C., 536, 6 N. C. C. A. 710; Rodger v. Paisley School Board, 49 Sc. L. R. 413, 5 B. W. C. C. 547, 6 N. C. C. A. 710. 1. Davis v. Gillespie, 105 L. T. 494, 28 T. L. R. 6, 56 Sol. J. 11, 5 B. W. C. C. 64; Morgan v. S. S. Zenaida, 2 B. W. C. C. 19, 6 N. C. C. 714, 2. Ismay, Inrie & Co. v. Williamson, 77 L. J. P. C. 107, (1908), A. C. 437; 1 B. W. C. C. 232. 6 N. C. C. A. 714; Johnson v. S. S. "Torrington" (Owners of), 3 B. W. C. C. 68, 6 N. C. C. A. 715; Olson v. S. S. "Dorsett," (Owners of), (1913), W. C. & Ins. Rep. 604, 6 B. W. C. C. 658, 6 N. C. C. A. 715. Note: See Title "Sunstroke and Heatstroke," 249 ante. 832 ACCIDENT ARISING OUT OF COURSE OP EMPLOYMENT. 334 in the course of plaintiff's employment, and that he did not suffer and an "accident." The court held that, there was an accident, and the evidence supported a finding that it arose out of and in the course of plaintiff's employment. 3 "A workman's employment required him to break rock in a quarry with a 16-pound sledge and load the rock into a car, which was hard work. At noon he was in apparent good health and spirits, and ate all of the lunch which his wife brought to the quarry for him. In the afternoon, while at his working place, and shortly after he was seen beating a large rock with his sledge, he suffered a pulmonary hemorrhage, from which he died before medical aid could reach him. He had been working in the quarry for several months, and before that had worked for three years in the sacking department of a cement plant, an exceed- ingly dusty place. The defendant insists that the workman died of disease; that is, the injury did not arise out of the employ- ment. The question was one of fact and should have been sub- mitted to the jury. It is not material that the workman's blood vessels were weakened by disease, or that he was predisposed to hemorrhage because, for example, he had breathed the dust of the sacking department for three years. The statute establishes no standard of health for workmen, entitling them or their de- pendents to compensation, and if the added factor of physical exertion in the employment were required to effect the lesion, and did so, the injury arose out of the employment. That the injury occurred in that way and is referable to a definite time, place, and circumstance, is indicated by the workman's apparent good health and strength, the suddenness and profusion of the hemorrhage, the absence of previous extravasation of blood, and other circumstances." 4 "The court found that on January 25, 1917, John Rush re- ceived an accidental injury 'arising out of and in the course of 3. Manning v. Pomerene, 101 Nebr. 127, 162 N. W. 492, 14 N. C. C. A. 536. 4. Gilllland v. Ash Grove and Portland Cement Co. 104 Kan. 771, (1919). 180 Pac. 798, 4 W. C. L. J. 187; E. Baggot Co. v. Indus. Comjn.. (1919), 290 111. 530, 125 N. E. 254, 5 W. C. L. J. 202. 833 W. C. 63 ' 334 "WORKMEN'S COMPENSATION LAW his employment' which caused his death on March 3, 1917. The relator admits that Kush received the injury and that it arose out of and in the course of his employment, but contends that the evidence is not sufficient to sustain the finding that his death re- sulted from his injury. He fell and struck upon his head and was unconscious for a few moments. Two or three days afterwards he resumed his duties and performed his work as usual for a week or more when he was discharged. During this period he appeared to be in his normal condition except that an impedi- ment in his speech seemed to be more pronounced than thereto- fore. On February 19th he entered a hospital where he died on March 3rd. The doctor who made an autopsy testified that death resulted from a hemorrhage of the brain of traumatic origin, and that a microscopical examination disclosed 'repair cells' which showed that the original injury had been received several weeks previously. "We are satisfied that the evidence justified the find- ing." 5 "Where the evidence offered was as consistent with a finding that the cerebral hemorrhage preceded the fall and caused the fall, as it was with a finding that the fall caused the hemorrhage, the court held that the applicant had failed to discharge the bur- den of proving that the death was the result of an accident aris- ing out of the employment. 6 An employee, 59 years of age, ruptured his spinal cord while pushing a wheelbarrow over a rough street. The court held that deceased's collapse was due to the sudden giving way of a bloodvessel in his back "due to the muscular strain and exertion employed by him in propelling said wheelbarrow," and that de- ceased's death was due to an accident arising out of the employ- ment. 7 A railroad fireman fell out of an engine cab, and was found unconscious on the side of an embankment twelve feet high, and 5. State ex rel. London & L. Indemnity Co. v. District Court of Henne- pin Co., 139 Minn. 409, 166 N. W. 772, 17 N. C. C. A. 790, 1 W. C. L. J. 835. 6. In re Sanderson, 224 Mass. 558, 113 N. E. 355, 14 N. C. C. A. 428. 7. State ex rel. Puhlmann v. District Ct. Brown Co., 137 Minn. 30, 162 N. W. 678, 14 N. C. C. A. 545. 834 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 334 died later from hemorrhage of the brain and fracture of the skull. It was contended that the hemorrhage and death was due to a syph- ilitic condition and consequent softening of the brain, and that the death was not proximately due to the effects of the fall. The court held that the evidence was sufficient to justify a finding that the hemorrhage was due to the accidental fall arising out of the employment. 8 A workman suffered a hemorrhage as a result of exerting pres- sure against his abdomen while furrowing posts. The court held that a finding that his death was due to an accident arising out of and in the course of his employment was warranted, evfii though the parts on which the pressure was exerted were already diseased and weakened by cancer." A workman suffered from an attack of Cerebral hemorrhage, as the result of an injury, and went home. "When the effects of the first hemorrhage were about done he suffered a second hemorrhage. The court held that the burden of proving that the second hemorrhage was not due to the original injury rested upon the party alleging it, for the logical deduction was that the second was a consequence of the first, and that the workman's incapacity arose from the injury. 10 An employee, who engaged in driving a team of horses at- tached to a scraper, was taken sick and died from internal hemor- rhage, and it was claimed that while at work he was called to as- sist in swinging around or lifting the end of one of the dump wagons and suffered a strain which caused the hemorrhage. The court held that there was no sufficient evidence to justify a finding that the death was due to an accident, and reversed a finding awarding compensation. 11 8. Peoria Railway Terminal Co. v. Indus. Bd.. 279 III. 357, 116 N. B. 651, 15 N. C. C. A. 632. 9. Voorhees v. Smith Schoonmaker Co., 86 N. J. L. 500, 92 Atl. 280. 7 N. C. C. A. 646. 10. M'Innes v. Dunsmuir & Jackson Ltd.. (1908), S. C. 1021. 45 Sc. L. R. 804, 1 B. W. C. C. 226, 7 N. C. C. A. 646. 11. Englebretson v. Industrial Ace. Comm., 170 Cal. 793, 151 Pac. 421, 10 N. C. C. A. 545. Note: See topics "Cerebral Hemorrhage" 163 ante and "Hemorrhage" 198 ante. 835 335 WORKMEN'S COMPENSATION LAW 335. Hernia. A carpenter, engaged in fitting doors for cup- boards, suffered a hernia. The court, in holding that the evidence was insufficient to justify a finding that the injury arose out of the employment, said: "A workman in order to be entitled to com- pensation for hernia must clearly prove: (1) That the hernia is of recent origin, (2) that its appearance was accompanied by pain, (3) that it was immediately preceded by some accidental strain suffered in the course of the employment, and (4) that it did not exist prior to the date of the alleged injury. Claimant testifies that in 1909 he had a double 1 hernia; that he could not tell how it occured; that he suffered no pain; that it came upon him while he was engaged in the lightest kind of work; that lie lost no work as a result of it; that he was operated on and there- after wore a truss. W.ith this very unsatisfactory evidence before the commission, it is impossible to say that the 'recent origin' of the hernia was clearly proven. It must be noticed that there is no direct history of any accident, such as lifting or straining. It is probable that in this case the abdominal wall was weakened by more" or less previous coughing. (Claimant was afflicted with tuberculosis.) It is possible that with the above weakness, the hernia came on as a result of planing. The Legislature has seen fit, in our Workmen's Compensation Act, to make hernia the sub- ject of the special provisions and exceptions herein before set out. This court must give some effect to those exceptions. To sustain the findings and award of the commission and the district court in the instant case would be to nullify them entirely and leave claims for injury due to hernia on an identical footing with all others, if not to prefer them. In fact, if the contentions of tb.e defendant in error be upheld, it is only necessary, in case of such a claim, to produce evidence from which a reasonable inference may be drawn that the hernia appeared 'in the course of the em- ployment.' It is impossible for this court to so nullify these ex- ceptions, or read them out of the statute." 12 12. McPhee & McGinnity Co. v. Indus. Comm. of Colo. (1919), Colo. , 185 Pac. 268, 5 W. C. L. J. 160; Matorls v. Estey Piano Co., (1919), 178 N. Y. S. 408, 5 W. C. L. J. 102, 189 App. Div. 297. 836 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 335 Where an employee felt a pain in his right side, and the fol- lowing day a physician discovered a right inguinal hernia, the court held that there was no evidence to justify a finding that the hernia resulted from an accident arising out of the employ- ment, and said: "It does not follow that, because a man had a pain in his side while doing his ordinary work, without slipping, falling, or other mishap, and a physician finds an inguinal hernia the next day, that the hernia resulted from accidental injuries, even though the physician adds to his declaration, in parenthesis the word 'traumatic.' This word, however much abused in mat- ters relating to insurance, contemplates some external violence, some wounding or bruising of the body, and no one pretends that anything of the* kind occurred in this case. The claimant himself merely says that he was doing his usual work, making no suggestion of anything happening, except that he felt a 'severe pain in the right side,' such as all persons experience, no doubt, at some time in their lives, and the next day a 'right inguinal hernia* is discovered, and this simple pain in the side is translat- ed into an accident, within the meaning of a statute designed to protect against the extraordinary risks of certain designated em- ployments. Alpert v. Powers, 181 App. Div. 802, 167 N. Y. Supp. 385. There is not even a suggestion that this hernia had not ex- isted to the knowledge of the claimant prior to this alleged injury. It is not an uncommon thing for men with hernia to work at heavy labor and- to suffer at times from exertion, and there is not a par- ticle of testimony from which it may be legitmately inferred that this was not the case with the claimant. No connection whatever is shown between the performance of the labors of the claimant and the hernia for which this award has been made* no identity of time or of place, and nothing which brings the case within any of the provisions of the statute; and the* capital of a legitimate business ought not to be taken to compensate for an al leged injury which is not shown to have been produced in connec- tion with tbe strvices rendered by the claimant." 18 13. Cavalier v. Chevrolet Motor Co. of N. Y., (1919), 178 N. Y. Supp. 489. 5 W. C. L. J. 93, 189 App. Div. 412. 837 335 WORKMEN'S COMPENSATION LA\V Where an employee claimed to have sustained an injury in the course of his employment resulting in a hernia, and the evidence was conflicting, the medical testimony tending to establish that the hernia was of long standing and that there were no indica- tions of a recent injury, compensation was denie'd. In affirm- ing the decision, the court said: "It is conceded plaintiff was afflicted with scrotal hernia, requiring an operation for its cure. He claimed that it was caused by an accident which he suffered while in the defendant's employ. The burden of proof rested upon him to establish the fact. If there was conflicting evidence upon that affirmance and denial, direct or circumstantial, fairl> raising an issue of fact, it was for the board to decide and its de- cision upon that point disposes of the case." 14 "Where an employee claimed that while lifting a heavy timber he sustained an injury causing a hernia, but it appeared that he neither slipped nor fell while lifting the timber, nor did it strike him in any way, the court, in dismissing the case, said: "It is settled by our decisions that before an employee is entitled to re- cover compensation he must establish the fact that he received an accidental injury which arose out of and in the course of his em- ployment. ' ' 15 Where an employee died as the result of a hernia, and the industrial commission found that the hernia was due to an acci- dent arising out of the employment, and an accident seemed to be the only reasonable explanation, under the circumstances, for the existence of the hernia, the court -held that the finding was conclusive., 16 An employee's duties were to lift, carry and throw cord wood into a furnace. He went from his home to his work on the morn- ing of the injury in good health, and upon his return he was found to be suffering from a hernia. An operation revealed 14. Nagy v. Solvay Process Co., 201 Mich. 158, 166 N. W. 1033, 17 N. C. C. A. 252, 1 W. C. L. J. 1049; Alpert v. J. C. & W. E. Powers, 223 N. Y. 97, 119 N. E. 229, 17 N. C. C. A. 253, 2 W. C. L. J. 106. 15. Takles v. Bryant & Detwiler Co., 200 Mich. 350, 167 N. W. 36, 1 W. C. L. J. 1031. 16. Fleming v. Robert Gair Co., 162 N. Y. S. 298, 14 N. C. C. A. 131, 176 App. Div. 23. 838 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 335 another hernia of previous origin and both were operated upon and infection resulted in both wounds causing death. It was contended that it was not known which wound became infected, but the court said that it was a reasonable conclusion that both wounds were infected during the operation and that the fatal blood poisoning would have taken place even if the injured man had only been operated upon for the 1 injury arising from the accident. The court stated the general rule, namely; "If an accident necessitates an operation and death ensues, even though it is not a natural and probable consequence, the death may, )t the chain of causation is unbroken, be said to have in fact resulted from the injury." 17 A brewery assistant strained himself while lifting a cask, which strain resulted in a rupture in the same place where there had been a rupture some years previous. The county judge found that the injury was caused by an accident, within the meaning of the English Compensation Act, but that it did not arise out of the employment, but was brought about gradually as the result of the absence of support. On appeal, the court, in holding that the injury was due to an accident arising out of the employment, said: "Once you come to the conclusion that there was an acci- dent, and that there wa a rupture occasioned by the accident, I cannot see the importance of considering whether there was any unusual strain, or whether it was a strain which he was subjected to once a week, if you like for many years. At some particular time the disability which the man brings with him leads to an acci- dent, and if you find that on the facts, I do not see how it can be said that the learned judge had any right to deal, with this as he did, apparently thinking it necessary to prove there was some unusual strain." 18 Where an employee suffered from chronic myocarditis prior to an operation for the relief of a hernia, which was caused by an acci- dental injury arising out of the employment, and he died from this disease six weeks after the operation, an award was reversed, 17. Eddies v. School Dis. of Winnipeg No. 1, 22 Manitoba 240, 21 W. L. R. 214. 2 W. W. R. 265. 2 Dom. L. R. 696, (1912), 14 N. C. C. A. 642. 18. Brown v. Kemp, 6 B. W. C. C 725, 14 N. C. C. A. 635. 839 336 WORKMEN'S COMPENSATION LAW. the court saying: "To establish the fact that a death resulted from an injury, it is clearly not sufficient jbo prove that the person received the injury; that an operation was performed on account thereof, and after he had apparently recovered from the effect of the operation and the anaesthesia, he died from a disease that existed before the injury." 19 Deceased had done some heavy lifting early in the morning, and on the afternoon of the same day he was taken violently ill with strangulated hernia. The evidence, including medical testimony, was to the effect that the hernia was of very recent and accidental origin. It was held that such evidence was suf- ficient to sustain a finding that the injury was caused by an accident arising out of the employment. 20 A stoker, who was suffering from a rupture, suffered a stran- gulation of the hernia while engaged in his regular duties of stok- ing. The* duties of a stoker required great abdominal strain. The court held that the subsequent death was due to the original accid- ent arising out of the employment. 21 336. Independent Contractor Doing Extra Work. The owner of a dredge contracted to lease his own dredge to the com- pany and to make repairs thereto, with the services of himseK or a substitute. The person who hired the dredge agreed to furnish the supplies. Upon a failure to furnish supplies the owner of the dredge found it necessary to go ashore for supplies. While cranking the engine in the motor boat, which was used to reach the shore, it backfired and broke his arm. The court held that while claimant was going ashore for supplies he was an employee of the person hiring the dredge, and the injury sustained arose 19. Tucillo v. Ward Baking Co., 167 N. Y. S. 666, 15 N. C. C. A. 637, 180 App. Div. 302. 20. Andreini v. Cudahy Packing Co. & Casualty Co. of America, 1 Cal. Ind. Ace. Com. Dec. 8, 6 N. C. C. A. 390. 21. Scales v. West Norfolk Farmer's Manure and Chemical Co., (1913), W. C. & Ins. Rep. 165, 3 N. C. C. A. 276. Note: For further cases on this subject see 200 ante, also see "Strains" 247 ante. See Rupture 349 post. 840 ACCIDENT ARISING OUT OP COURSE OF EMPLOYMENT. 337 out of the employment, even though as to the operation of the dredge proper he was an independent contractor. 21 Claimant was employed by defendant in his real estate business. He received a salary of $60.00 per month, and was to perform certain services as directed, such as collecting rents and renewing insurance policies. He was also allowed commisssions on new business, provided he did not neglect his regular duties. He was also to receive commissions on sales of real estate All negotiations for sales of real estate were tc be brought to defendant's office to be closed. On the day of the injury claimant started to another city to collect the premium on an insurance policy, and to nego- tiate the exchange of some real estate. Neither errand was included in the duties covered by his monthly salary. While defendant knew of the real estate transaction, he did not know that it was to be closed on the day in question. In affirming the award against the contention that applicant was an "independent contractor or partner" with the defendant, the court said: "The defendant was entitled to all Trobitz's working hours and waa empowered to direct his labor. In either capacity he was an employee. It is not an uncommon thing for retail merchants, for laundrymen, and the like to pay a commission to the drivers of their delivery wagons for all new business which they bring in. It has never been held that this circumstance creates a distinct relationship in law. * * * A certain amount of freedom of action was inher- ent in the nature of the work which the injured man performed, but this, however, did not change the character of his employment, for the employer himself still had a general supervision and con- trol over it." 18 337. Infection From Various Causes. An employee sustained a contused wound on the great toe of his right foot while engaged in the service of the petitioner. He continued to work for a couple of days and then had his toe dressed by a doctor, after which he 22. Powley v. Vivian & Co., 169 App. DIv. 170, 164 N. Y. S. 426, 10 N. C. C. A. 835. 23. Cameron v. PillBbury. 173 Cal. 83. 159 Pac. 149, 14 N. C. C. A. 496. Note: See "Independent Contractors" 37 ante and "Who are Em- ployees" 20 and .21. 841 337 WORKMEN'S COMPENSATION LAW returned to work, but on account of the pain of his toe he attempt- ed to treat it himself. Later a streptococcic infection developed about the toe, and was transferred to the face and resulted in septicaemia, from which he died. The court held that if the em- ployee in treating the toe himself conducted himself as would a reasonably prudent person in his situation, and thereby innocently enhanced the original injury, so that the infection was communicat- ed to his face, and he developed erysipelas and septicaemia, causing death, a finding that the original injury continued to the end and that the death was due to the accident arising out of the employ- ment was, in view of the evidence, justifiable. 24 An employee was kicked by a horse and applied salve and con- tinued to work without consulting a doctor. Infection set in, and death resulted. The court held that it could not be said that de- ceased was guilty of unreasonable refusal to consult a doctor when he was not informed that the employer was furnishing the doctor. The court held further that the death was proximately due to the accident arising out of the employment and not to disease, for while conceding that persons highly appreciative of the dangers result- ing from infection would at once consult a physician, "we cannot say that this is true of the great mass of mankind under the same or similar circumstances. It is a matter of common knowledge that strong, healthy men engaged in manual labor frequently give such trifling injuries, which would arouse the apprehension of others, little 1 thought, and in comparison with the number of such injuries the instances followed by infection are not numerous. If they are treated at all, home remedies are applied, just as was done by the deceased. Carbolic salve was his remedy for cuts, bruises, etc., and this he applied. The injury itself was not suf- ficient to keep him from his work, and he went about the per- formance of his daily duties, attaching little consequence to the injury. "We do not think it is customary for laboring men to rush to a doctor every time they sustain a cut, bruise, or abrasion of the skin, and we cannot say as a matter of law that the conduct 24. Bethlehem Shipbuilding Corporation, Ltd. v. Indus. Ace. Comm. of Gal., Cal. , (1919), 185 Pac. 179. 842 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 337 of the deceased was not that of the great mass of mankind under the same or similar circumstances." 25 An employee scratched his right hand while cleaning gears. Blood poisoning followed, resulting in his death. The court held that there was sufficient evidence to justify a finding that the in- fection was due to the original injury. 28 Decedent, while working in a blacksmith shop connected with defendant's plant, pinched his fingers and infection resulted, neces- sitating four operations. After the fourth operation he developed inflammatory rheumatism. The medical evidence was conflicting as to whether the rheumatism was due to the infection or a pre-existing disease. The court held that there was sufficient evi- dence to justify a finding that the death was due to the injury occurring in the course of the employment. 27 Deceased suffered an injury while setting pins in a bowling alley, and was sent to a hospital, where he was treated until practically cured. Subsequently he entered a hospital, where he died. The evidence tended to show that there was no connection between the injury and the death, and there was evidence to the effect that deceased had tried to get up and fell. The court held that on the whole there was no evidence from which a fair inference could be drawn that deceased's death was caused by the injury oc- curring in the course of the employment. 28 Deceased suffered a scratch to his hand and blood poisoning followed causing death. He had been handling bags while at work and there was evidence that when he left home for work in the morning he had no scratches upon his hand, but upon return- ing in the evening his hand was scratched and the testimony of fellow workers was to the effect that scratches were often received 25. Banner Coffee Co. v. Bellig, 170 Wis. 157, (1919), 174 N. W. 544. 5 W. C. L. J. 118; State Indus. Comm. v. Tolhurst Mach. Works, 184 N. Y. S. 608, 7 W. C. L. J. 136. 26. Hege A Co. v. Tompklns, (1919), 121 N. E. 677, (Ind. App.), 3 W. C. L. J. 451. 27. Perdew v. Nufer Cedar Co., 201 Mich. 620, 167 N. W. 868, 16 N. C. C. A. 921, 2 W. C. L. J. 313. 28. Perry v. Woodward Bowling Alley Co., 196 Mich. 742, 163 N. W. 52, 17 N. C. C. A. 885. 843 337 WORKMEN'S COMPENSATION LAW in that line of work. 'There is in evidence a copy of a letter, dated April 28, 1916, written by the Dickson Company to a rep- resentative of the casualty company in which the company carried insurance, which contains the following : ' In regard to the case of Robert I. Rackman, will advise that our Supt., Mr. Brown, inter- viewed all the workmen here in the plant, and found only one man that knew anthing about R. I. Rackman being injured. We will forward you his signed statement as soon as he returns to work.' The trial court found that the death of deceased resulted from this scratch, and that the injury arose out of and in the course of his employment. The principal question in the case is, whether the evidence sustains this finding. The evidence is quite satis- factory that the blood poisoning and the ensuing death were the result of the scratch. The medical testimony is to that effect and the sequence of events leaves vefty little doubt on that point. That the scratch was received while he was engaged in his employment is not so clear. There was no direct evidence that the scratch was so received. We think, however, the evidence is sufficient. The fact that deceased had no scratch when he left home in the morn- ing and had one when he came home from work at night, that he must have come home immediately, for he was home within half an hour of the time he quit work, that the scratch had blood upon it which had hardened, indicating that the scratch had been received earlier than the time he quit work, that it was such a scratch as he was not likely to receive on a trip from his work to his home, and such a scratch as he might well have received while at work, these facts, in connection with the letter above quoted, which is of some force as an admission, were such that the court might infer that the scratch was received while deceased was in the course of his usual work and that it arose out of it." 29 An embalmer's helper died as the result of an infection alleged to have been caused by germs entering a wound on his hand. De- ceased was engaged in cleaning instruments used in embalming the body of a woman who died from a virulent type of streptococcus 29. State ex rel. Dickinson v. District Court of Hennepin County, 139 Minn. 30, 165 N. W. 478, 15 N. C. C. A. 585. 844 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 337 infection, and it was claimed that it was in this manner that he incurred the infection. In affirming an award, the court said: "We are of the opinion that an inference favorable to the claimant can be arrived at from the evidence in the case, without indulging in any guess or speculation. Germs cannot be traced in their in- dividual wanderings, like persons. No one ever saw a germ go from a source of infection to its victim's body. Means and sources of infection are, as a general rule based on observed conditions." 30 Deceased stepped upon a nail while collecting dirt in a street, and infection resulted, and death followed from tetanus. The court, in holding that the death was due to an accident arising out of the employment and not to a risk of the commonalty, said: "The commission has found that one of the duties of deceased was going about the streets, shoveling dirt into his wagon. One of the necessary incidents of driving about the streets was getting on and off his wagon. While the danger of stepping on the nail may be said to have been common to all persons using the stri-et, an injury therefrom to a mere passer along the street, not engaged in a harzardous employment, or in the performance of an act incidental thereto, would probably not afford a right to compensation under the act. The hazardous employment of the deceased required his continued presence upon the street in the discharge of the duties of his employment. The mere fact that a person not engaged in a hazardous employment was ex- posed to the danger of a similar injury, should he chance to travel that way, furnishes no argument for a denial of the right of compensation to a person whose hazardous employment compelled his constant presence on the street." 81 A domestic servant cut his index finger on the broken edge of a tray, and blood poison resulted, necessitating amputation of the finger. It was held that this was an accidental injury arising out of the employment." 80. Blaess v. Dolph, 195 Mich. 137, 161 N. W. 885, 15 N. C. C. A. 587, 31. Putnam v. Murray, 174 N. Y. App. Div. 720, 160 N. Y. S. 811, 15 N. C. C. A. 256; In re Bean, 227 Mass. 558, 116 N. E. 826. 32. Albi v. Puth, 37 N. J. L. J. 9. Note: The subject of infection has also been treated under the follow- ing heads, "Infection" under the chapter on Accidents, "Friction In- juries." "Abrasions." "Eye Injuries," "Anthrax," "Bloodpoison." 845 339 WORKMEN'S COMPENSATION L.AW 338. Influenza. The California act (st. 1917, Subd. 4, sect. 3) defines " in jury" as used in the act as including any injury or disease arising out of the employment. So where a hospital steward died of influenza contracted in the course of his employ- ment, compensation was awarded even though an influenza epidemic was raging in the city and one out of every ten inhabitants con- tracted it. The medical testimony was to the effect that the danger of contracting the disease was from five to eight times greater among those exposed to it, as was the deceased, than among those not so exposed. This was held to be sufficient to justify the com- mission 's finding that the injury arose out of the employment. 33 339. Insanity. An employee was injured in the course of his employment so that he was no longer able to follow his trade of boiler maker, but was capable of earning laborer's wages. He subsequently became insane. The court held that the employee was entitled to compensation for the partial disability caused by the accident arising out of the employment, saying: "We are of opinion that subsequent insanity does not deprive an employee of compensation due him under the provisions of the workmen's compensation act. Indeed the effect of subsequent insanity and the only effect of it is to make greater the employee 's need to have that compensation which, apart from the subsequent disability, justice required the employer to pay him." 34 An employee became insane subsequent to an injury arising out of the employment, because of a syphlitic condition existing prior to the injury. It was contended that there was no causal connection between the injury and the insanity. The court held that the insanity was proximately due to the accident. See quota- tion from the opinion in this case, "Insanity," 210 ante note 85. 85 33. City etc. of San Francisco v. Indus. A. C. of Cal., Cal. 191 Pac. 26; Engels Copper Mng. Co. v. Ind. Comm. of Calif., Cal. , 192 Pac. 845, 6 W. C. L. J. 624. 34. In re Walsh, 227 Mass. 341, 116 N. E. 496, 15 N. C. C. A. 345. 35. In re Crowley, 223 Mass. 288, 111 N. E. 786, 15 N. C. C. A. 345. 846 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 340 A motorman, as the result of a collision, received a shock, which caused insanity. It was held that the insanity was due to the acci- dent arising out of the employment. 39 340. Intoxication. An ice wagon driver asked to be relieved from his duties because he was too drunk to finish the deliveries. Another employee was sent out, and decedent started for home. Later another employee coining from a small building on the deck said that he saw a pair of feet disappearing over the edge of the dock. Later in the day the body of decedent was taken from the river. The state industrial commission found that death was due solely to intoxication. In affirming the award, the court said: "Section 21 of the "Workmen's Compensation Law (Consol. Laws, c. 67) provides that, in the* absence of substantial evidence to the contrary, it shall be presumed that 'the injury did not result solely from the intoxication of the injured employe while on duty,' but in this case there was such substantial evidence. Indeed, the evi- dence was preponderating that the decedent was staggering drunk at the very time of the accident, and all of the known facts point to this as the proximate cause of the death. " ST A janitor was found at the bottom of a stairs with his skull fractured, from which he died. There was evidence that on the evening in question he was sober. It was sought to show that de- ceased was a habitual drunkard, and that he came to the building drunk on the evening in question. The court held that the finding of fact was within the province of the board and it would not be disturbed. Therefore a finding that the death was due to an accident arising out of the employment, was affirmed." 36. McMahon v. Interborough Rapid Transit Co., 5 N. Y. S. Dep. 371. Note: see 210 ante. 37. Trouton v. Sheehy Ice Co., (1919), 187 App. Div. 818, 176 N. Y. S. 45, 4 W. C. L. J. 292; In re Joseph Culberson, 2nd A. R. U. S. C. C. 224; In re Geo. W. Seegers, 2nd A. R. U. 8. C. C. 224; In re Pope, 163 N. Y. S. 655, B. 1 W. C. L. J. 1389. 38. Lefens v. Indus. Comm., 286 111. 32, 121 N. E. 182, 3 W. C. L. J. 246; Great Lakes Dredge & Dock Co. v. Totzke, Ind. App. , (1919), 121 N. E. 675, 3 W. C. L. J. 448; State v. District Court of Meeker County, 128 Minn. 221, 150 N. W. 623; Pierce v. Bekins Van and Storage Co., la. , 172 N. W. 191, 4 W. C. L. J. 78. 847 340 WORKMEN'S COMPENSATION LAW V A hospital employee, whose duties included overseeing of several jobs, was found at the bottom of a flight of stairs with injuries which resulted in his death. It was contended that the death was not due to an accident, but to intoxication. The court on appeal, in affirming an award, said; "The finding that the deceased was not so intoxicated as to take him out of the course of his employ- ment, and that the injury causing his death did not result directly from his intoxciated condition, must be sustained. If he had been in such a state of intoxication as to totally incapacitate him from performance of his work the injury and death might properly be said to arise out of his condition rather than his employment. Be- fore drunkenness can be said to bar a recovery under the Work- men's Compensation Act the employee must be so intoxicated, as shown by the evidence, that the court can say, as matter of law, that the injury arose out of his drunken condition, and not out of his employment. Frith v. Owners of Steamship Louisiana, 2 K. B. 155; 5 B. W. C. C. 410; 'Brian v. Star Line, 45 Scotch L. T, 935, 1 B. W. C. C. 177. When ever an employee is so drunk and helpless that he can no longer follow his employment, he can- not be said to be engaged in his employment, and when injured while in that condition his injury does not arise out of his em- ployment. But intoxication which does not incapacitate the employe? from following his occupation is not sufficient to defeat the re- covery of compensation, although, the intoxication may be a contri- buting cause of his injury. Our statute was not designed to make contributory negligence of the employee 1 , or a defense of that nature, a bar to his recovery under the Workmen's Compensation Act, where, as in this case, his injury arose* out of and in the course of his employment. Alexander v. Industrial Bd., 281 111. 201, 117 N. E. 1040. " 39 Where a night watchman, when intoxicated, left his work and went to a room with intent to sleep, lighted a gas heater, closed the door and windows, and laid down on a bench, where he was asphyxiated by gas, it was held, on appeal from the award of the 39. Hahnemann Hospital v. Indus. Bd. of 111., 282 111. 316, 118 N. E. 767, 1 W. C. L. J. 754 ; Hartford Indem. Co. v. Durham, Tex. Civ. App. , (1920), 222 S. W. 275, 6 W. C. L. J. 395. 848 ACCIDENT ARISING OUT OP COURSE OF EMPLOYMENT. 340 commission, that the death was not due to any accident incident to the employment or arising out of the employment. The court said: "And we may remark that the uncontradicted evidence in this case indicates, if we are to choose between the conflicting specu- lative deductions, that on the night in question the deceased will- fully stepped aside from the performance of the duties which his employment laid upon him and invited by direct action on his part the occurrence of the detrimental causes which produced his death. In our opinion, the conclusion of the commission is not supported by sufficient evidence." 40 Where the evidence showed a conflict in the testimony as to whether or not deceased was intoxicated at the time of the injury, it was held that it was not error to fail to find that deceased was intoxicated, for such ruling was necessarily included in a finding that the accident arose out of the employment. 41 "Defendants insist that the injury sustained by Nels Parson was due to his willful negligence and to intoxication. The act expressly provides that the burden of proof to establish willful negligence on the part of an injured employee is on the defendant. In the present case defendants introduced no testimony, and there is no proof of such negligence before us. Some testimony was brought out on cross-examination, showing that plaintiff's son was intoxicated to some extent when he was injured ; but it is no- where shown that his intoxication in any way contributed to his injury, and without proof we will not assume that it did." 42 The court, in a Massachusetts case, in passing upon the question of intoxication as a defense, said: ""Where, therefore, the intoxi- cation of the injured employee is relied on as a defense, it must be made to appear that the injury that is to say, the accident which resulted in the injury for which compensation is sought was 40. Roebling Sons & Co. v. Indus. Comm. 36 Cal. App. 10, 171 Pac. 987, 2 W. C. L. J. 38; In re Gilbert, 14 Ohio Law Rep. 164, 13 N. C. C. A. 497. 41. Napoleon v. McCullough, 89 N. J. L. 716, 99 All. 385, 16 N. C. C. A. 754. 42. Parson v. Murphy, 101 Neb. 542, 163 N. W. 847. 16 N. C. C. A. 174; National Council of Knights and Ladies of Security v. Wilson, 147 Ky. 296, 143 S. W. 1000; Hartford Ace. and Indem. Co. v. Durham, Tex. Civ. App. , (1920), 222 S. W. 395, 6 W. C. L. J. 275. 849 W. C. 54 341 WORKMEN'S COMPENSATION LAW caused solely and exclusively by the intoxication of such em- ployee. ' ' 43 Where the employee had no intention of becoming dangerously and helplessly intoxicated, he is not necessarily barred from com- pensation, even though the injury was proximately caused by the intoxication. It did not constitute wilful misconduct within the meaning of the Wisconsin Act. 44 It is serious and wilful misconduct for a man to be drunk at his work, under the English Act, but where death ensues, the fact that decedent was intoxicated may be disregarded when considering whether the accident arose out of the employment. 45 Where habitual intoxication so weakens the system that it is un- able to withstand the effects of an accidental injury arising out of the employment, "this fact does not shift the proximate cause of death from his injury to his intemperate habits. So where an employee developed delerium tremens and died following an in- jury, it was held that the death was due to the accident arising out of the employment. 46 Where an employee was taken to the entrance of a garage and told to go home because he was too intoxicated to work, and was later found fatally injured in an elevator shaft, his injury did not arise out of the employment. 47 341. "Ivy Poisoning". A section hand, who was cutting grass and removing poison ivy and other weeds from along the 43. American Ice Co. v. Fitzhugh, 128 Md. 382, 97 All. 999, 14 N. C. C. A. 291; Collins v. Cole, 40 R. I. 66, 99 Atl. 830, 14 N. C. C. A. 290; In re Pope, 163 N. Y. S. 655, 14 N. C. C. A. 293; Mclntyre v. Stewart, (1915), W. C. & Ins. Rep. 550; Frith v. Louisiana, (1912), 2 K. B. 155, 9 N. C. C. A. 262, (1912), W. C. Ins. Rep. 285, 81 J. K. B. 701; Murphy & Sandwith v. Cooney, (1914), 2 Ir. R. 76, 9 N. C. C. A. 263, (1914), W. C. & Ins. Rep. 44, 48 Ir. L. T. R. 13; In re Von Etta, 223 Mass. 56, 111 N. B. 696. 44. Nekoosa-Edwards Paper Co. v. Indus. Comm., 154 Wis. 105, 141 N. W. 1013, 3 N. C. C. A. 661. 45. Williams v Llandudno Coaching Co. Ltd., (1915), 2 K. B. 101, 9 N. C. C. A. 245. 46. Ramlow v. Moon Lake Ice Co., 192 Mich. 505, 158 N. W. 1027, 14 N. C. C. A. 295; Connell & Co. v. Barr, 116 L. T. 127 (1904). 47. Emery Motor Livery Co. v. Indus. Comm., 111. , (1920), 126 N. E. 143, 5 W. C. L. J. 658. 850 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 343 right of way of an intrastate railroad, contracted ivy poisoning, resulting in blood poisoning and death. It was held that death was due to an accident arising out of the employment. 48 342. Landslides & Snowslides. A conductor was killed by a landslide, when he attempted to pass the slide in an endeavor to report the arrival of his train at the point where the track was blocked. It was held that the accident arose out of the em- ployment. 49 Where an employee of a Colliery Company in a mountainous district was killed by a snowslide, which was caused by very ab- normal weather conditions, it was held under the British Columbia Act that the death was due to an accident which arose out of and in the course of the employment. 50 343. Lightning. Deceased was employed by defendant, in Colt park, in the City of Hartford, in raking leaves. During a thunderstorm of considerable violence he took shelter under a near- by tree. While thus seeking shelter the tree was struck by light- ning and he was killed. There was no protection provided for him in case of storms. The court, in holding that the death was due to an accident arising out of the employment, said: "There is a clear preponderance of scientific authority to the effect that there is a greater danger under a tree or in the open than when protected in a house. This is shown by statistics and by authori- tative scientific dicta Notice is taken of the commonly known fact that nearly all of the persons in a community such as Hart- ford are protected by dwelling houses, business blocks, or factories in time of a violent thunder shower, and that the injured work- man was subject to a greater hazard than that experienced by the community at large. * * * "If the place under the tree were the more dangerous, the fact that the deceased chose it as the place of refuge from the storm 48. Plass v. Central New England R. Co., 169 N. Y. App. Div. 825, 155 N. Y. Supp. 854, 11 N. C. C. A. 498. 49. Clark v. Northwestern Pacific R. R. Co., 1 Cal. I A. C. (part 2) 191, 7 N. C. C. A. 429. 50. Culshaw v. Crow's Nest Pass Coal Co., (1914), British Columbia ourt of Appeal, 7 B. W. C. C. 1050. 851 343 WORKMEN'S COMPENSATION LAW and that he was injured at this place does not prevent recovery. The act of seeking and obtaining shelter arose out of, that is, was within, the scope or sphere of his employment and was a necessary adjunct and an incident to his engaging in and continuing such employment. Obtaining shelter from the vio- lent storm was not only necessary to the preservation of the deceased's health, and perhaps his life, but was incident to the deceased's work, and was an act promoting the business of the master. L. R. A. 1916A, 348. See, also, Richard v. Indi- anapolis Abattoir Co., 92 Conn, 277, 102 Atl. 604, where it is said that The plaintiff 'was injured while on duty, in his working hours, when waiting for an opportunity to continue his service of empolyment. The accident occurred when the plaintiff was at a place where he might reasonably be. There was no turning aside upon his part, no attempt to serve ends of his own. ' "A personal injury to an employee which is sustained while he is doing what he was employed to do, and as a proximate result there- of, 'arises out of and in the course of his employment. An injury which is the natural and necessary incident of one's employment is proximately caused by such employment : as it is also when the employment carries with it a greater exposure to the injury sus- tained than the exposure to which persons generally in that local- ity are subjected." 51 An employee, while operating a metal road grader, was killed by lightning during a storm. The District court, in reversing the action of the board, granted compensation on the theory that de- ceased's employment exposed him to a greater risk than that of the commonalty. On appeal this decision was reversed, the court say- ing: "The most diligent research on our part has failed to dis- close any authority which supports the theory upon which this cause was decided by the court below; on the contrary, so far as they point to any conclusion respecting the subject, the authorities indicate quite clearly that the presence of the metal road grader could not have had any perceptible influence upon the lightning, 51. Chiulla De Luca v. Board of Park Commissioners of the City ot Hartford, 94 Conn. --, (1919), 107 Atl. 611, 4 W. C. L. J. 595; State ex rel. Peoples Coal & Ice Co., v. District Court of Ramsey Co., 129 Minn. 592 153 N. W. 119, 9 N. C. C. A. 129. 852 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 343 and did not tend to increase the natural hazard of the deceased's employment. For this reason it cannot be said from this record that his death resulted from an accident arising out of his em- ployment, as the term is used in our workmen's compensation act." 83 Where a workman on a dam was struck by lightning during a storm, the court, in denying that the nature of deceased's employ- ment exposed him to any unusual hazard not common to the public, said: "The court below in affirming the findings of the Industrial Commission, held that the Workmen's Compensation Act 'limits compensation to those cases in which the accident grows out of the hazards of industrial enterprises and is peculiar to such enter- prises,' and further held that 'an injured employee is entitled to compensation when the industry combines with the elements in producing an injury by a lightning stroke,' and further found that it could not be said that there was not a substantial basis for the finding in the evidence taken before the commission. We are inclined to agree with the learned court below in its conclusions and judgment in the case. There was testimony in this case of an expert nature for the purpose of showing that the employment of deceased at the water's edge was peculiarly dangerous from ex- posure to lightning. The evidence does not convince the Com- mission to a moral certainty that the employment was extrahazard- ous in this regard. It is admitted that the action of lightning is extremely freakish; and, while it is more or less controlled by general law, there are so many different elements entering into its control that we do not think the evidence in this case established that the deceased was in any position of exceptional danger be- cause of the possibilities of lightning stroke." 58 Where a bricklayer was killed by lightning while at work on a scaffold 23 feet above the level of the ground, the court, in allow- 62. Wiggins v. Indus. Ace. Bd., 54 Mont. 335, 170 Pac. 9, 1 W. C. L. J. 643, 15 N. C. C. A. 696; Craske v. Wlgan, (1909), 100 L. T. 8, 2 B. W. C. C. 35. 53. Hoenlg v. Indus. Comm. of Wis., 159 Wis. 646, 150 N. W. 996, 8 N. C. C. A. 192; Kelley v. Kerry County Council, 42 Ir. L. T. 23, 1 B. W. C. C. 194, 8 N. C. C. A. 194; Thier v. Widdifleld. Hich. , (1920). 178 N. W. 16, 6 W. C. L. J. 339. 853 344 WORKMEN'S COMPENSATION LAW ing compensation and holding that death was due to an accident arising out of the employment, said: "If I come to the conclusion that, as a matter of fact, the 1 position in which the man was work- ing was dangerous, and that in consequence of the dangerous posi- tion the accident occurred, I could fairly hold that the accident arose out of the employment, Now, was it a dangerous position? "Was the man exposed to something more than the normal risk which everbody, so to speak, incurs at any time and in any place during a thunderstorm? We 1 know that lightning is erratic, and possibly no position and circumstances can afford absolute safety. But, if there is under particular circumstances in a particular vo- cation something appreciably and substantially beyond the ordinary normal risk, which ordinary people run, and which" is a necessary concomitant of the occupation the man is engaged in, then I am entitled to say that that extra danger to which the man is exposed is something arising out of his employment." 54 Under the Utah Act, which does not require the accident to arise out of the employment, an employee, struck by lightning when he left his employment of roadwork to seek shelter, was entitled to compensation, for the injury occurred in the course of the employment, since the employee did not depart therefrom but was justified in seeking shelter from the fury of the 1 elements. 55 Where a section hand at the direction of his foreman sought shelter in a barn during a storm, and was killed by lightning, the court held that the nature of his employment did not subject him to any greater risks than the risks of the ordinary citizenry, and held that the accident did not arise out of the employment. 56 344. Mental Shock. Where an employee received a personal injury arising out of the employment resulting in total disability, and it was contended that his disablity was due to a mental and 54. Andrew v. Failsworth Indus. Society Ltd., (1904), 2 K. B.32, 73 L. J. K. B. 510, 90 L. T. 611, 20 T. L. R. 429, 68 J. P. 409, 52 W. R. 451, 6 W. C. C. 11, 8 N. C. C. A. 192. 55. State Road Comm. v. Indus. Comm., Utah, . (1920), 190 Pac. 544, 6 W. C. L. J. 404; In re Jimmie Butte, 3rd A. R. U. S. C. C. 169. 56. Klaviniski v. Lake Shore & M. S. Ry. Co., Mich. , 152 N. W. 213, 8 N. C. C. A. 194. 854 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT 345 nervous condition instead of a physical breakdown, the court said : "The fact that appellee was suffering from a mental or nervous condition resulting from a physical injury, rather than from the physical injury itself, cannot have the effect of relieving appellant from liability. The court is committed to the doctrine 1 that a 'per- sonal injury,' as that term is used in the Workmen's Compensation Act, has reference 1 not merely to some break in some part of the body, or some wound thereon or the like, but also to the consequence or disability that results therefrom." 67 Where an employee, while aiding in the rescue of fellow employ- ees, many of whom were killed in an accident, became insane, due to the mental and emotional shock caused by the accident, it was held that the insanity was due to an accident arising out of tho employment. 68 Where an employee fell from a scaffold injuring himself, from which he became subject to nervousness, the court held that the nervousness was due to an accident arising out of the employment." An elevator operator, imagining he saw a fellow workman about to be killed, suffered a stroke of paralysis, which caused his death. It appeared that the paralysis was due to a hemmorrhage of the brain which might have been caused by a diseased condition of tne heart or by the mental shock arising from the exictement. It was held that such evidence was insufficient to prove that the paralysis and death was due to an accident arising out of the? employment. 59 345. Misunderstood Orders. A woodsman misunderstood his instructions and worked at the wrong place. Upon discovering his mistake, he went to the proper place and worked so hard in preparing for the drive, whicli was to occur on the following day, that his feet perspired and were frozen. On appeal the court, in holding that the freezing of his feet was due to an accident arising out of the employment, said: "On the day in question 67. Kingan & Co., Ltd. v. Issam, (Ind. App.), in N. T. 289, 3 W. C. L. J. 276. 58. Indus. Ace. Comm. in Reich v. City of Imperial, 1 Cal. Ind. Ace. Comm. Dec., (1914), 337, 10 N. C. C. A. 479. 58. Keck v. Morehouse, 2 Cal. I. A. C. 311. 59. Coslett v. Shoemaker, 38 N. J. L. J. 116, 10 N. C. C. A. 1046. See 218 ante. 855 345 WORKMEN'S COMPENSATION LAW by reason of the mistake, the defendant Beaulieu worked harder then he ordinarily did, as a result of which his feet became wet from perspiration, a circumstance which made them more sus- ceptible to cold, and as a consequence thereof his feet were frozen. It seems clear that the hazard to which the defendant Beaulieu was exposed was one which was incident to and can be fairly traced to his employment as a contributing cause, and that he would not have been equally exposed to such a hazard apart from his employment. If the defendant Beaulieu while engaged in his work had wet his feet by stepping into an open spring and the freez- ing had resulted therefrom, it could scarely be claimed that the in- jury was not proximately caused by accident. In this case the condition of his feet was due to extra exertion caused by reason of a misunderstanding as to orders. Because there would be 1 no logs for hauling in the morning, he was required to put forth an unusual and extra effort, which made him more susceptible to cold than he otherwise would have been. It is clear that the exposure of the defendant Beaulieu to injury by freezing was substantially increased by reason of the nature of the services which he was obliged to render. We think it must be held that the injury for which compensation was awarded was proximately caused by accident within the meaning of the 1 act. " 61 Claimant sustained a burn in the course of and arising out of the employment. He visited a doctor, and on the day of his last visit, his burned hand showed signs of improvement, and he did not return for further treatment until the finger had nearly rotted off. The physician testified that he told claimant to return for further treatment and claimant testified that he was told not to return. The court held that, in view of the fact that claimant was a foreigner and did not understand the English language to any extent, he was not guilty of such wilful miscon- duct as would preclude a recovery. 62 An oiler was told not to allow oil to drop on a pulley of a particular machine* and not to put so much oil on the machine; 61. Ellingson Lbr. Co. v. Indus. Comm. of Wis., 168 Wis. 227, 169 N. W. 568, 3 W. C. L. J. 215, 17 N. C. C. A. 1003. 62. Oniji v. Studebaker Corporation, 196 Mich. 397, 163 N. W. 23, 15 N. C. C. A. 76; Poniatowski v. Stickley Bros. Co., 194 Mich. 294, 160 N. W. 669, 15 N. C. C. A. 77. 856 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 346 but the oiler through a misunderstanding or otherwise, hung a pail to catch the dripping oil and was injured while removing the pail. It was held that the injury arose out of the employment. 83 Where a deaf employee misunderstood orders as to where his work was to be performed and went to a different place with the approval of his fellow workmen, an injury, sustained there while doing the exact work he had been instructed to do, arose out of his employment. 64 346. Neurosis. That the workman, but for the want >f sufficient will power, could have thrown off the condition of hysterical blindness and neurosis caused by the injury, did not deprive him of his right to compensation. 05 Where a workman receives a blow on the head, causing no apparent serious injury, but inducing him to sincerely believe that he is incurably injured, which belief incapacitates him, the incapacity is an injury for which compensation will be allowed. 66 Where a workman, after the effects of the injury are all gone, still suffers from traumatic neurosis, he is entitled to compensation until the traumatic neurosis ceases to incapacitate him. 67 Where a workman, after his injuries have healed, complains of pain, loses weight and gradually becomes an invalid, due to traumatic neurosis, although there is no physical basis for such con- dition, it is held that he is entitled to compensation. 68 Where disability of a workman was due largely to imagination aud a slight neurotic condition, which would best be cured by claimants return to work, the court made an award of six weeks compensation in addition to the twenty -six weeks that had already been paid by the employer. 68 63. Panacona v. Vulcanite Portland Cement Co., 37 N. J. L. J. 75. 64. In re Greeney, App. Div. , (1920), 180 N. Y. S. 648, 5 W. C. L. J. 723. 65. In re Hunnewell, 220 Mass. 351, 107 N. E. 934. 66. Rollnik v. Lankershim, 1 Cal. I. A. C. 45. 67. Manfred! v. Union Sugar Co., 2 Cal. I. A. C. 20. 68. Hakala v. Jacobsen-Bade Co., 1 Cal. I. A. C. 328; Kelly v. Par. Electric Ry. Co., 1 Cal. I. A. C. 150. 69. Intorigne v. Smith Cooley, 1 Conn. Comp. 228; Pendo v. Mam- moth Copper Mining Co., 1 Cal. I. A. C. 80. 857 347 WORKMEN'S COMPENSATION LAW A cigar maker, by reason of his occupation, received a personal injury due to the unusual degree of strain on certain muscles in his arm, and also to the rapidity with which he used them, which caused a condition of neurosis incapacitating him for labor. The commission held that the incapacity was the result of an accidental injury. 70 Where an injury caused the loss of will power, due to traumatic neurosis, whereby claimant was unable to work, the court found that he was entitled to compensation for such disability 71 347. Paralysis. An employee sustained a blow on the neck from a .shovel. A state of paralysis followed. The Commission arrived at the following conclusion, and their award was affirmed by the higher court, which quoted from their decision as follows : 'In view of the extreme hot weather, age of the applicant, and the obvious susceptibility of applicant to suffer a paralytic stroke at the time of the accident, the fact that no evidence of sickness or distress was apparent immediately before the blow, that a strange feeling, sickness, and a paralytic stroke developed in usual time immediately following the blow, it is reasonable to conclude that the blow from the shovel, received accidentally and arising out of and in the course of his employment by the defendant corpora- tion, was the proximate cause of the disability suffered by ap- plicant, and an award of compensation should be made accord- ingly." 72 It was held that where an employee's duties exposed him to un- usual risk from the sun's heat and he suffered a sunstroke' which caused paralysis of the brain and death, that the paralysis and death was due to an accident arising out of the employment. 7 ' 1 70. Lee v. Employers Liability Assur. Corp., 2 Mass. Work. Comp. Cases, 753. 71. Smith v. Smith (Globe Indemnity Co.), 2 Conn. Workm. Comp. Com. 628. Note: See "Mental Shock," 344, also "Insanity" 339. 72. Murray City v. Indus. Comm. of Utah, (Utah), (1919), 183 Pac. Rep. 331, 4 W. C. L. J. 647. 73. Ahern v. Spier, 93 Conn. 151, 105 Atl. 340, 3 W. C. L. J. 221. 858 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 348 "Where an employee \\a> awarded compensation for paralysis following heavy lifting, but it appeared that the board based its finding on a previous fall received by the employee, the court on appeal reversed the decision on the ground that there was no showing that the fall was received in the course of the employ- ment. 74 A candy packer, whose duties necessitated that she work in a cool room, suffered from facial paralysis, which began while she was at work. It was held that the injury was received in, and arose out of the employee's employment. 75 "Where an employee sought to reach his place of employment by a very dangerous means of ingress, instead of using the safe way provided by the employer, and fell, sustaining injuries to his back and paralysis, the court held that he was not acting within the scope of his employment and that his injury did not arise out of the employment. 76 A fireman, while attempting to move heavy iron beams, became faint and weak, complaining of pains in his stomach, and a few days later suffered a paralytic stroke. It was held that the paraly- tic stroke was due to an accidental injury arising out of the em- ployment. 77 An employee who had previously suffered a stroke of paralysis and recovered therefrom, was later found drowned in a vat on his employer's premises, and all the evidence tended to show that his fall into the vat was due to dizziness. It was held that the acci- dent arose out of the employment. 78 348. Pneumonia. A driver on a lumber sleigh suffered an injury while lifting the end of the sleigh. Later he developed 74. David-Bradley Mfg. Co. v. Ind. Bd. of 111., 2SZ 111. 468, 11C N. E. 615, 2 W. C. L. J. 226, 17 N. C. C. A. 250. 75. Dalton v. Employer's Liab. Assur. Corp. Ltd., 2 Mass. W. C. C. 231, 12 N. C. C. A 327, 76. In re Babcock, Ohio Ind. Comm:, (1919), 12 N. C. C. A. 655. 77. Manning v. Pomerene, 101 Neb. 127, 162 N. W. 492. 78. Harmon v. Gen. Ace. Assur. Corp., 3 Mass. Indus. Ace. Bd. 166. 12 N. C. C. A. 80, Note: See 232 ante. 859 348 WORKMEN'S COMPENSATION LAW lobar pneumonia, and traumatic gangrene of the lungs, from which he died. The evidence was conflicting as to whether the disease was due to the injury. The court held that there was sufficient evi- dence to justify a finding that the injury produced- an impaired physical condition resulting in disease and death, and that the death was attributable to the injury arising out of the employ- ment. 79 A night watchman went to work as usual. The following morning he was discovered in a state of collapse. He developed pneumonia and peritonitis, and after a few days died. It was alleged that the disease was due to an injury arising out of and in the course of the employment. In affirming an award the court said: "The defendants deny that the illness and death of Mailman was due to an injury, accidental or otherwise. They argue that when he began work on the evening of April 18th he was 'coming down' with pneumonia. This is disputed. If true, it is not decisive. Evidence that an existing disorder reaches the point of disablement during employment, of course, does not prove accidental or other injury arising out of such employment. It is sufficient however (assuming other elements proved), if by weak- ening resistance or otherwise an accident so influences the progress of an existing disease as to cause death or disablement Voorhees v. Smith 86 N. J. Law, 500, 92 Atl. 280 ; Trodden v. McLennard, 4 B. W. C. C. 190 ; Doughten v. Hickman, 6 B. W. C. C. 77 ; Puritan v. Wolfe (Ind. App.) 120 N. E. 417. 'There is some evidence that upon the body of the deceased a mark, or marks, were observed which turned black when blood poisoning set in. There is some medical testimony to the effect that the symptoms were more con- sistent with traumatic pneumonia than with illness otherwise caused. The spontaneous exclamation of the suffering man, 'I got hurt,' clearly admissible for this purpose, shows that what he sensed and felt was the shock of a hurt rather than the prostration of illness. In view of these circumstances, it cannot be reasonably said that there was no evidence that the illness of the deceased 79. Foils v. Robertson, (1919), 188 App. Div. 359, 177 N. Y. S. 34, 4 W. C. L. J. 429; Tanner v. Aluminum Castings Co., Mich. , (1920), 178 N. W. 69, 6 W. C. L. J. 337. 860 ACCIDENT ARISING OUT OP COUBSE OP EMPLOYMENT. 348 was traumatic. There being no evidence, suggestion, or presump- tion that any injury sustained by the deceased was occasioned by his willful intention, or that it resulted from his intoxication while on duty, we think it is an almost necessary inference that, if he were injured, the injury was accidental. The accident must have arisen out of and in the course of the employment. In other words, it must have been due to a risk to which the deceased was exposed while employed, and because employed by the defendant. There is evidence that Mailman on the night of the 18th was in good health. He was left performing his duties at the foundry 'laugh- ing and joshing.' The following morning he was found, still at his post of duty, stricken and helpless. The deceased might have left the foundry in the night in pursuit of his own affairs, re- ceived an injury, and found his way back. He might have been injured in the foundry while doing something for his own personal pleasure, entirely independant of his employment. These un- supported hypotheses are so improbable as to be almost negligible. From all the circumstances, the 1 commissioner drew the inference that Mailman's injury was received while at the defendant's found- ry and arose out of such employment. This inference is neither unnatural nor irrational." 80 A sheet metal worker received an injury to his ankle and was operated on in a hospital. After leaving the hospital he went for an automobile ride with a friend. The following day he died from general sepsis one of the main factors* causing the conditions of /lypostatic pneumonia. "It is insisted by plaintiff in error that the injury to the foot had no connection with the death; that the conditions which caused the death were the direct result of the exposure from the automobile ride. Shaw wore no overcoat during the ride. He had on flannel underwear, his limb was wrapped in flannel, and he was wrapped to the armpits in a heavy lap robe. Several physicians testified, most of them as experts. Their testimony is too voluminous and technical to set out in this opinion. They did not all agree, and the opinions expressed by some of them tend to support the contention of plaintiff in error. Others 80. Mailman v. Record Foundry & Machine Co., 118 Maine 172, (1919), 108 All. 606, 4 W. C. L. J. 205. 861 348 WORKMEN'S COMPENSATION LAW expressed the opinion that death resulted from the continued septic process, and that the ride in the automobile had nothing to do with it. We cannot weigh the evidence. If there is any competent testimony fairly tending to support the claim of defendant in error, we cannot consider the weight of the 1 evidence, and reverse the judgment because in our opinion it is contrary to the pre- ponderance of the testimony. Munn v. Industrial Board, 274 111. 70, 113 N. E. 110; Bloomington Decatur & Champaign Railroad Co. v. Industrial Board, 276 111.454, 114 N. E. 939; Schwarm v. Thompson & Sons Co., 281 111. 486, 118 N. E. 95. There was competent testimony to support the claim of defendant in error that the death resulted from an accident arising out of and in the course of the employment." 81 Where a piano mover strained himself while moving a piano, and later died from abscess and pneumonia resulting from the abscess, the court held that the medical testimony was sufficient to justify a finding that the death was due to the accident arising out of the employment, and not due to disease. 82 Where an employer, who was engaged at work in a carpenter shop where there was a circular saw, was struck in the chest by a flying board and later died from pneumonia, which the testimony of physicians showed was directly caused by the acci- dental injury received in the course of the employment, the master was held liable, although it was not positively shown from what source the flying object ca'me. 83 A driver fell from his wagon and injured his head, resulting in loss of memory. Subsequent to the passing of the Workmen's Compensation Act he suffered so much from this malady that lie lost his way in a swamp while driving back to the stables, and remained all night in the swamp. As a result of the exposure he 81. Gergstrom v. Indus. Comm., 286 111. 29, 121 N. E. 195, 3 W. C. L. J. 232; Ft. Wayne Rolling Mill Corp. v. Buanno, (Ind App.), (1919), 122 N. E. 362, 3 W. C. L. J. 626. 82. Wolford v. Geisel Moving & Storage Co., 262 Pa. 454, (1919), 105 Atl. 8J31, 3 W. C. L. J. 798; Bayne v. Riverside Storage Co., 181 Mich. 378, 148 N. W. 412, 5 N. C. C. A. 837. 83. Hanna v. Michigan Steel Castings Co., 204 Mich. 139, 170 N. W. 6, 3 W. C. L. J. 322. 862 ACCIDENT ARISING OUT OP COURSE OF EMPLOYMENT. 349 developed pneumonia and died. It was held that his death was not due to an injury arising out of the employment, the court say- ing: "If the horse driven by Milliken had run away and Milliken had been thereby thrown out and killed the personal injury in fact suffered in that case would have been one which from the nature of his employment would be likely to arise and so would be one 'arising out of his employment.' But as we have said, there is nothing in the employment of driving a wagon which makes it likely that the employee will alight from his wagon, wander to and fall into a swamp, and lie there all night. It seems phiin that if Milliken 's death was caused by a personal injury, it was the one which happened some four or five years before the occurrence here complained of and before the Workmen's Com- pensation Act was passed. At that time he fell from his wagon and striking on his head suffered as a result 'an impairment of his memory.' " 84 Where a city fireman contracted pneumonia as the result of a wetting received while fighting a fire, it was held that he did not die as the result of an "accident" arising out of his employ- ment, as this was one of the natural incidents of his employment. 85 349. Ruptures. Where an employee sustained a rupture as the result of a strain, caused by an attmept to hold castings on a truck when the truck dropped into a hole, it was held that the rupture was due to the accident arising out of and in the course of the employment. 86 Where an employee sustaned a rupture necessitating an operation, and later died from tuberculosis, the testimony as to the origin of the tuberculosis was conflicting, and the court held that the onus of 84. Milliken v. A. Towle & Co., 103 X. E. 898, 216 Mass. 293, 4 N. C. C. A. 512, L. R. A. 1916A, 337. 85. Landers v. Muskegon, 196 Mich. 751, 163 N. W. 43; Linnane v. Aetna Brewing Co., 91 Conn.. 158, 99 Atl. 507. Note: See Hernia 200 ante. 86. Schanning v. Standard Castings Co., 203 Mich. 612. 169 N. W. 879, 3 W. C. L. J. 331. ' 349 WORKMEN'S COMPENSATION LAW proving that there was any causal connection between the accident and -the death had not been discharged. 87 Where an employee claimed that he sustained a rupture as the result of a strain from overexertion in lifting bundles of paper, and the evidence showed that no strain occurred, it will not be presumed that the rupture was due to an accident arising out of .-the employment. 88 The rupturing of a bloodvessel, as the result of a strain in heavy lifting, which caused death, is an injiiry arising out of the employment. 89 Under the Minnesota Workmen's Compensation Act, death caus- ed by the rupture of a bloodvessel resulting from muscular strain and exertion while working, was held to be an accident arising out of and in the course of the employment. 90 "A rupture caused by a strain while at work is an accident or untoward event, arising in the course of employment, and com- pensable under the Workmen's Compensation Act. Proof of ap- parent previous good health, a heavy and unusual lift in the course of work, discovery of rupture on the 1 second day thereafter, death from surgical operation for relief thereof, and opinion of the operating surgeon that the rupture was caused by the lifting, is sufficient to establish accidental injury in the course of employ- ment, within the meaning of said act." 91 Where an employee suffered a rupture in the course of his employment, and the employer's report to the insurance companj 87. Kemp v. Clyde Shipping Co, Ltd., 119 L. T. R. 131, (1918), 1", N. C. C. A. 875. 88. Alpert v. J. C. & W. E. Powers, 223 N. Y. 97, 119 N. E. 229, ~i W. C. L. J. 106, 17 N. C. C. A. 248. 89. Greenburg v. Leather Goods Co., (1916), 3 Cal. I. A. C. 328. 90. State v. District Court, 137 Minn. 30, 162 N. W. 678; LaVeck v Parke Davis Co., 190 Mich. 604, 157 N. W. 72, L. R. A. 1916D, 1277; Southwestern Surety Ins. Co. v. Owens, (Tex. Civ. App.), 198 S W. 662 1 W. C. L. J. 271; Bystrom v. Jacobson, 162 Wis. 180, 355 N. W. 919; Hughes v. Clover Clayton, 3 B. W. C. C. 175; Mathiessen-Hegeler Zinc Co. v. Indus. Bd., 284 111 378, 120 N. E. 249; Peoria Railroad Terminal v. Indus. Bd., 279 111. 352, 116 N. E. 651. 91. Poccardi v. Public Serv. Comm., 75 W. Va. 542, 84 S. E. 242, 8 N. C. C. A. 1065. 864 ACCIDENT ARISING OUT OP COURSE OF EMPLOYMENT. 350 stated that the employee was injured as the result of the elevator operator losing control and the dropping of the cage in conse- quence, is sufficient evidence to make out a priraae facie case, and will sustain a finding that the injury arose out of the employment. 9 * 350. School Teacher Injured or Killed. The duties of the principal of a high school included the selection of a team each year for the purpose of playing basket ball. While so doing he was struck by a basket ball, sustaining injuries from which he died. It was held that his death was due to an injury arising out of the employment. 08 "A school district employed a young woman teacher for a one- room school in a densely wooded and sparsely settled part of the country. On her way to her boarding house, after her day's work at the schoolhouse was done, and when off the school house grounds, she was assaulted by an unkown man for the gratification of his passions, and as a part of the transaction she was shot and the sight of one eye was destroyed. The Workmen's Compensation Act. (Gen. St. Minn. 1913, Section 8195 et seq.) gives compensation for personal injury "caused by accident, arising out of and in the course of employment." It does not cover workmen, except while engaged in or about the premises where their work is done or their service requires their presence; and it excludes "an injury caused by the act of a third person or fellow employee intended to injure the employee because of reasons personal to him, and not directed against him as an employee 1 , or because of his employ- ment." Without determining whether the injuries to the teacher arose in the course of the employment, it is held that they were not caused by accident arising out of the employment and that they are not compensable under the Compensation Act." 94 92. Egger's Veneer Seating Co. v. Indus. Comm. of Wis., (1919), 170 N. W. 280, 168 Wis. 377, 3 W. C. L. J. 396. Note: For further cases on rupture, see "Strains," "Bloodvessel Rup- tured," "Aneurisms" and "Artery Ruptures." 93. City of Milwaukee v. Indus. Comm., 160 Wis. 238, 151 N. W. 247. 94. State ex rel. Common School District No. 1 in Itasca County v. Dist- rict Court of Itasca County, 140 Minn. 470, 168 N. W. 555, 17 N. C. C. A. 937, 2 W. C. L. J. 661. 865 W. C. 55 351 WORKMEN'S COMPENSATION LAW A school teacher, in order to open a bookcase to obtain needed books, attempted to move a row of desks weighing 458 pounds, which had been placed in front of the case on the previous Friday night to make room for a dancing party, and as a result of the attempt she injured her back. It was held that she had sustained an injury arising out of the employment regardless of the fact that the duty of replacing the seats devolved upon the janitor. 95 A school teacher tripped and fell and sustained injuries while going to a telephone on business of her own after school, but while she was still at the schoolhouse finishing her work. It was held that she had suffered an accidental injury arising out of her employment, for the course of employment is not restricted to acts solely for the master's benefit, but includes all acts which an employee may reasonably do while at work. 96 Where the evidence showed that a school teacher's previous health was very poor, and the evidence of the schoolroom being poorly heated was contradicted, it was held that it could not be said that her death from pneumonia had any causal connection with the employment 97 351. Self Inflicted Injuries. An employee of a logging crew was killed by dynamite which was used in blowing out stumps. The accident occurred while everybody, except deceased, was at dinner. It was contended that the applicant had not shown that the accident arose out of the employment and was not a case of self-inflicted injury. The commission found that the death was due to an accident arising out of the employment. On appeal the court said : ' ' The appellant contends that the facts in the record before the commission were not such as to warrant the inference arrived at by the commission that Perry's death occurred while he was in the performance of his duty and in the master's employ- ment, and that such conclusion must have been based upon mere 95. Elk Grove Union High School District v Indus. Ace. Comm. of Cal., 34, Cal. App. 589, 168 Pac. 392, 15 N. C. C. A. 148, 1 W. C. L. J. 143. 96. Reiff v. City of Sacremento, 2 Cal. I. A. C. 251, (1915), 12 N. C. C. A. 901. 97. Arnold v. Town of Brooklyn, 1 Conn. Comp. Dec. 188. 866 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 351 conjecture, and that therefore the claimant had not met the burden of proof imposed upon her under the law. It is also contended that there was no evidence showing that there was any reason for blowing up the tree near which Perry was found dead, or that there was any further work of blasting required for the stump, already partly blasted, which was near where his body was found, and that there was no foundation for the surr'stioii by the commission in their finding that Perry remained at the place after the crew went to dinner in order to clear away the tree or stumps, and that therefore there was a total absence of evidence upon which might be predicated a finding that Perry met his death while within the scope of his employment. It is undoubtedly the rule of law in this state that findings of the Industrial Commission must be supported by evidence and not based upon mere con- jecture. Voelz v. Industrial Com., 161 Wis. 240, 152 N. W. 830. The situation here was one clearly requiring the commission to apply the well-recognized presumption against suicide in such cases of accidental death. Mil. W. F. Co. v. Industrial Com., 159 Wis. 635, 150 N. W. 998. With that presumption, therefore, and the facts disclosed in the testimony of Perry's employment as foreman in charge of the construction of this road, the partially exploded stump left in the road, or even the sapling near which he was found, upon either of which Perry might have been contemplatintr the use of dynamite, even though such use might not have been in accordance with the customary or enconomical way of con- structing such a road, all presented a situation from which the conclusion might have been reasonably and properly drawn that whatever Perry was then doing was within what he then thought \\as his duty rather than the conclusion that it was an intentionally self-inflicted injury. Within the broad field intended to be covered by our Compensation Act we think the conclusion arrived at by the commission was within their discretion."* 8 "There can be no presumption that a man recklessly imperils his own life." So where an officer returned to a vessel from his life boat, after the ship had drifted onto the rocks and had been 98. Bekkedal Lumber Co. v. Indus. Comm. of Wis.. 168 Wis. 230. 169. N. W. 561. 3 W. C. L. J. 212, 17 N. C. C. A. 247. 867 352 WORKMEN'S COMPENSATION LA\V abandoned, thereby losing his life, it was held that there was no presumption that he intended to sacrifice himself." Whefre a boy fifteen years of age was killed as the result of an attempt to play a practical joke upon a fellow employee, the in- jury cannot be said to have been purposely self-inflicted so as to defeat a claim for compensation. 1 352. Suicide. An employee who was engaged in removing ashes from a pit under a large steel burner, died from the effects of ashes which had been taken into his stomach. "There is no evidence tending to show that on the night in question plaintiff's decedent had with him a pail of water into which large quanti- ties of ashes might have fallen in the course of the work. There is no evidence that decedent drank from a pail of water heavily impregnated with ashes. There is evidence of the physician to the effect that the liquid taken from the man's stomach would be 'a little burning;' that 'it would burn and taste nasty;' and that. 'To swallow something that hasn't a pleasant taste involves an effort of the will.' Counsel for claimant assert that the fore- going facts are sufficient to support the inference indulged in by the board to the effect that decedent swallowed the ashes and alkaline liquid accidentally. They point out that, it being undis- puted the lye and ashes were in the stomach and caused the death, the only possible inferences are: (1) That they were taken into the stomach by the decedent accidentally; or (2) that they were so taken willfully and with suicidal intent and they rest upon the presumption against suicide, citing Wishcaless v. Hammond, 201 Mich. 193, 166 N. W., 993. This position is met by counsel for appellant with the argument that the presumption arises only where the facts and the logical deductions therefrom point with equal cogency to suicide or accidental death, and that in the case at bar the accidental theory is negatived by the testi- mony of the doctor that the substance found in the stomach of 99. North Pac. S. S. Co. v. Indus. Comm. of Cal., 174 Cal. 346, 163 Pac. 910, 14 N. C. C. A. 425. 1. Twin Peaks Canning Co. v. Indus. Comm., Utah , (1921), 196 Pac. 853. 868 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 352 the decedent could not have been taken by decedent without a conscious effort because of its unpleasant taste. The rule to be adopted by the board is set out clearly in the case of Ginsburg v. Adding Machine Co., 204 Mich. 130, 170 N. W. 15, in the following language: 'It is the province of the board to draw the legitimate inference from the established facts and to weigh the probabili- ties from such established facts. Wilson v. Phoenix Furniture Co., 201 Mich. 531, 167 N. W. 839. But the inferences drawn must be from established facts ; inference may not be built upon infer- ence, possibilities upon possibilities, or inferences drawn con- trary to the established facts, contrary to the undisputed evi- dence. If an inference favorable to the appellant can only be ar- rived at by conjecture or speculation, -the applicant may not re- cover. So if there are two or more inferences equally consistent with the facts, arising out of the established facts, the applicant must fail' citing many cases. Applying that rule to the facts in the case at bar, and in further consideration of the rule which places the burden of establishing the claim for compensation on those seeking the award, we are constrained to the view that the inference that the liquid and ashes found in decedent's stomach and which caused his death were taken into the system by the decedent with suicidal intent is at least as reasonable as that they found entrance to the stomach accidentally, and where two infer- ences equally consistent with the facts arise out of established facts, one involving liability on the part of the employer under the act, and the other relieving him from liability, the applicant must fail. The award must be vacated." In this case there was a dissenting opinion concurred in by three of the seven judges and based principally upon the authority of the case mentioned in the following paragraph. 2 An elevator operator disappeared, and three days later his body was found in the bottom of an elevator shaft. There was evidence that deceased was intoxicated early in the morning on the day of the accident, that his domestic relations had not been 2. Chaudier v. Stearns & Culver Lbr. Co., 206 Mich. 433, (1919), 4 W. C. U J. 608, 173 N. W. 198; Rourke v. Holt & Co. 0918) W. C. ft Ing. Rep. 7, 51 Ir. L. T. 121. 869 353 WORKMEN'S COMPENSATION LAW happy, and that the mechanical superintendent had reprimanded him for inattentiveness to his duties. The court held that where the death occurred under circumstances which would suggest either suicide or accident the presumption is against suicide and in favor of an accident. 3 A miner was found dead, following an explosion. No one saw the 1 accident, and there was no occasion for the use of explosives at that time. There was evidence tending to show circumstances equally consistent with a finding of suicide as with that of acci- dent. The court said: "Other facts and circumstances are men- tioned in the testimony, most, of them unimportant and none or all of them conclusive of either theory. If death is not the re- sult of suicide, the employer must respond. The evidence may be too meager to establish affirmatively either accident or suicide, but when violent death is shown, the presumption arises that it was not self-inflicted. 'As between accident and suicide the law for logical, and sensible reasons supposes accident,' until the contrary is shown. * * * The evidence is surely not conclusive of suicide. We conclude that the determination of the trial court that death was accidental is sustained." 4 353. Testing Racing Motorcycle. Where an employee of a firm dealing in racing motorcycles sustained serious injuries while testing the speed of a motorcycle at the direction of his employer, it was held that the crashing of the motorcycle through 3. Wishcaless v. Hammond, Standish & Co., 201 Mica. 192, 166 N. V, 993, 1 W. C. L. J. 1055, 17 N. C. C. A. 792; Bekkedal Lbr. Co. v. Indus. Com. of Wis., 168 Wis. 230 169 N. W. 561, 3 W. C. L. J. 212, 17 N. C. C. A. 247. 4. State ex rel. Oliver Iron Mining Co. v. District Court of St. Louis County, 138 Minn. 138, 164 N. W. 582,15 N. C. C. A. 526; .Milwaukee Western Fuel Co. v. Indus. Comm., 159 Wis. 635, 150 N. W. 998; Sorensen v. Menasha Paper Co., 56 Wis. 342, 14 N. W. 446; W. R. Rideout Co. v. Pillsbury, 173 Cal. 132, 159 Pac. 435, 12 N. C. C. A. 1032. Note: See "Suicide" 248 ante, also "Death, Presumption From While at Work," 167 ante. "Insanity" 210 and 339 ante, see also "Self- Inflicted Injuries" 351 ante. 870 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 354 a fence while going at the rate of sixty tw,p miles per hour was an accident arising out of the employment. 5 ~ An employee, whose duties as a solicitor required constant use of a motorcycle, which was furnished by his employer, was injured while trying out a motorcycle at the place of business of a dealer where his employer contemplated purchasing another motorcycle. It was held that, in assuming to act without any au- thority in this regard, the employee was acting outside the scope of his employment, and therefore his injury did not arise out of the employment. 6 354. Tetanus. A driver for a florist undertook to assist in the adjustment of a window box for a customer, and in doing so he fell from a ladder, causing a compound fracture of the thumb which resulted in tetanus and death. The court of appeals, iu reversing a judgment, held that the accident did not arise out of the employment, for there was no causal connection between deceased's employment and the accident, for his duties did not In elude the adjusting of window boxes for customers. 7 A boy, sixteen years of age, was employed by the defendant to take up a floor. The work was finished in the forenoon, and in the afternoon, while decedent and other boys were looking for money in the dirt beneath the floor, he ran a nail into his foot causing teta- nus and death. It was held that the death did not result from an accident arising out of the employment. 8 Where death resulted from a similar injury received while the employee was at work, compensation was awarded. 8 An employee, whose duties included gathering dirt from the street, stepped on a rusty nail as he was getting into his wagon, and the- wound became poisoned and death resulted from tetanus. The court in affirming an award for accidental death arising out of the employment, said: "The commission has found that one of 5. Lawson v. Stockton Motor Cycle and Supply Co., 2 Cal. I. A. C. 628. 6. Phillips v. Pacific Gas ft. Elect. Co., 2 Cal. I. A. C. 788. 7. Glatzl v. Stumpp, 220 N. Y. 71, 114 N. E. 1053, 16 N. C. C. A. 646. rev'g 174 N. Y. App. Div. 901, 159 N. Y. 8. 1115. 8. Davis v. Mais, Indiana Indus. 3d.. (1915), 11 N. C. C. A. 506. 9. Sayder et al. v. Indus. Comm., 111. , ISO N. E. 517, (1921). 871 < 356 WORKMEN'S COMPENSATION LAW the duties of deceased was going about the streets, shoveling dirt into his wagon. One of the necessary incidents of driving about the streets was getting on and off his wagon. While the dangoi of stepping on the nail may be said to have been common to all persons using the street, an injury therefrom to a mere passer along the street, not engaged in a hazardous employment, or in performance of an act incidental thereto, would probably not af- ford a right to compensation under the act. The hazardous em- ployment of the deceased required his continual presence upon the street in the* discharge of the duties of his employment. Tli3 mere fact that a person not engaged in a hazardous employment was exposed to the danger of a similar injury, should he chance to travel that way, furnishes no argument for a denial of the right of compensation to a person whose hazardous employment compelled his constant presence on the street." 10 355. Toxic Amblyopia. A photographer suffered from toxic amblyopia, which was due to some poison taken into the body. He had been slightly burned about the head and face by an explosion in the course of his employment, but his eyes were not injured thereby. It was held that there was no evidence to show that his condition was due to any accidental injury arising out of the employment. 11 356. Tuberculosis. An employee suffered an injury in the course of and arising out of the employment, which was of such a serious nature as to greatly impoverish his system and predispose it to an infection of tuberculosis, of which there was not the slightest indication before the injury. The court, in holding that the death was due to the accident arising out of the employment, said: ""Where a workman receives personal injury from an acci- dent arising out of and in the course of his employment, and dis- ease ensues which incapacitates him for work, the incapacity may 10. Putnam v. Murray, 174 N. Y. App. Div. 720, 160 N. Y, S. 811, 15 N. C. C. A. 256. Note: See 252 ante. 11. Diehels v. Lasky's, (1916), 3 Cal. I. A. C. 351. 872 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 356 be the result of the injury, within the meaning of the (English) Workmen's Compensation Act, even though it is not the natural result of the injury. The question to be determined on a claim for compensation is whether the incapacity is in fact the result of the injury. Ystradowen Colliery Co. v. Griffiths, (1909), 2 K. B. 533. In a case where a petitioner's arm was broken while he was in defendant's employ, and the fracture properly united, but there developed an abscess upon the fleshy part of the thumb, which resulted in ankylosis, making the thumb useless, our Su- preme Court held that, the ankylosis of the thumb was an injury arising by accident out of and in the course of the employment. Newcomb v. Albertson, 85 N. J. Law, 435, 89 Atl. 928. And Mr. Justice Swayze, in writing the opinion in Liondale Blefcch "Works v. Riker, 85 N. J. Law, 426, at page 429, 89 Atl. 929, observed that the question of disease following an accident was consid- ered in Newcomb v. Albertson, supra. The decision there, rested on certain English cases, is to the effect that an injury which fol- lows an accident, and which, but for the accident, would not have happened, justifies the finding that the injury in fact results from the accident." 12 An employee received abrasions on his leg and foot, as the result of an injury arising out of the employment, and alleged that a condition of tuberculosis was accelerated by the injury. The board found that there was no causal connection between the injury and the disease, and that the disease was not due to an injury arising out of the employment. 18 A night watchman, predisposed to tuberculosis of the bones, fell while acting within the course of his employment and injured his knee. He was taken to a hospital and afterwards discharged. He returned to work and later the injury recurred, necessitating amputation of the leg which was affected with tuberculosis. In affirming the award for an injury arising out of the employment, the court said that the evidence clearly discloses that the disabili- 12. Lundy v. George Brown & Co. (1919). 93 N. .T. L. 107, 108 AU. 252, 5 W. C. L.J.294; Glennon's Case, -- Mass. , (1920), 128 N. E. 942. 7 W. C. L. J. 210. 13. McCarthy's Case, 120 N. E. 852, 231 Mass. 259, 3 W. C. L. J. 141. 873 357 WORKMEN'S COMPENSATION LAW ty was due to an injury arising out of and in the course of the employment. The fact that the employee may have been predis- posed to tuberculosis of the bone is immaterial, as the evidence clearly shows that the tuberculosis of the left knee developed as a result of the injury. 14 An employee was working on a crane when one of the timbers broke. He jumped into the river to save himself, and the ex- posure which resulted caused pulmonary tuberculosis. It was held that he suffered an accidental injury that arose out of and in the course of the employment. 15 Where an employee received a blow over the spine which en- cited a preexisting tubercular condition to such virulent activity as to totally incapacitate the employee for work, the court, in affirming an award for accidental injury arising out of the em- ployment, said: "Likewise the courts, consistent with the theory of workmen's compensation acts, hold with practical uniformity that, where an employee afflicted with disease receives a personal injury under such circumstances as that he might have appealed to the act for relief on account of the injury had there been no disease involved, but the disease as it in fact exists is by the in- jury materially aggravated or accelerated, resulting in disability or death earlier than would have otherwise occurred, and, the disability or death does not result from the disease alone pro- gressing naturally as it would have done under ordinary condi- tions, but the injury, aggravating and accelerating its progress, materially contributes to hasten its culmination in disability or death, there may be an award under the compensation acts." 16 357. Typhoid Fever. An employee received an injury in the course of his employment when a belt broke and struck him in the face. Later he was taken down with pneumonia and ty- 14. Wabash R. Co. v. Indus. Comm. 286 111. 194, 121 N. E. 569, 3 W. C. L. J. 435. 15. Rist v. Larkin & Sangster, 156 N. Y. S. 875, 171 App. Div. 71, 15 N. C. C. A. 688. 16. In re Bowers, In re Williams, In re Colan, 64 Ind. App. , 116 N. E. 842, 15 N. C. C. A. 633. Note: For additional cases on this subject see 254 ante. 874 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 358 phoid fever. The medical testimony was to the effect that the traumatic injury was likely to have caused the pneumonia. The court held that there was sufficient evidence to justify a finding that the pneumonia and typhoid fever were caused by the injury arising out of the employment, and that death was the direct re- sult of these diseases. 17 Where an employee contracted typhoid fever as the result of drinking contaminated water furnished by the government, and it later developed into pneumonia and empyema, it was held that this was not an accident arising out of the employment. 18 A nurse in a hospital contracted typhoid fever, but the evidence failed to show how or where she contracted the disease. It was held that the evidence failed to show that the typhoid fever was caused by or arose out of the employment. 19 358. Ulcers. Where an employee splashed lye water in his eye, and a corneal ulcer developed, it was held to be an injury arising out of the employment. 20 Where the evidence showed that ulcerative endocarditis was not caused by the accidental injury, compensation under the Federal Act was denied. 21 359. Unintentional Injury by a Fellow Employee. Where an employee, while seeking instructions from another employee who was leaning over, placed his arm about the fellow employee's neck, and in doing so a pencil in the pocket of the employee seek- ing instructions pierced the eyeball of the fellow employee, the court held that the injury, though received in the course of the employment ; did not arise out of the employment, for it resulted 17. Vogeley v. Detroit Lbr. Co., 196 Mich. 516, 162 N. W. 975, 15 N. C. C. A. 641. 18. Re Claim of Robert K. Potter, Op. Sol. Dep. C. * L. (1915), *.72. 19. Tobin v. City & County of San Francisco, (1916), 3 Cal. I. A. C 314; Collins v. Oakdale Irrigation District, 3 Cal. I. A. C. 344. Note: See same title 256 ante. 20. Grimes v. The Red River Lbr. Co., 3 Cal. Ind A. C. 66. 21. In re Carl A. Carlson. 3rd. A. R. U. S. C. C. 120. Note: See 257 ante. 875 ' 359 WORKMEN'S COMPENSATION LAW from the sportive act of a fellow employee, and was not incidental to the employment. 22 An employee fainted after a dispute with her employer, and fellow employees brought a glass of ammonia and a glass of wa- ter. By mistake the ammonia was thrown in her face, burning her seriously. The court said: "Clearly the injuries so received by her were accidental and arose in the course of her employment, but they did not arise out of such employment. If she had fainted be- cause of fumes present in the work room and so falling had in- jured herself, a different question would have been presented ; but the claimant fainted because of her physical condition, and even if her faintness might have been said to have resulted from her quarrel with her boss with regard to her work, the fainting was in no proper sense connected with the accident. The accident was caused by a co-employee mistaking the two glasses containing ammonia and water, not because the ammonia was exposed and an error arose as to its nature or use. The employee who obtained it knew precisely what it was. The employer had not furnished the ammonia as medicine for his employees nor had he authorized in any way its use by them as a medicine. A fainting such as is shown in this case and help such as was given is not a natural in- cident to the business. It has no more connection with it than if a physician had been called in and having been handed glasses of ammonia and water had made the same mistake." 23 An employee threw a missile at a fellow employee without any intention to injure him, but it struck him in the eye destroying the vision of one eye. The practise of boys throwing these missi- les during working hours was known or could have been known to the employer by the exercise of ordinary diligence. The in- jured employee never participated in this sport. Affirming an award in favor of claimant, the court said: "The rule is well enough settled that where workmen step aside from their em- ployment and engage in horseplay or practical joking, or so en- gage while continuing their work, and accidental injury results, and in general where one in sport or mischief does some act re- 22. Markell v. Green Felt Shoe Co., 221 N. Y. 493, 116 N. E. 1060. 23. Saenger v. Locke, 220 N. Y. 556, 116 N. E. 367. 876 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 360 suiting in injury to a fellow worker, the injury is not one arising out of the employment within the meaning of compensation acts. * * * Here we conceive the situation to be different. Filas was exposed by his employment to the risks of injury from the throw- ing of sash pins in sport and mischief. He did not himself engage in the sport. His employer did not stop it. The risk continued. The accident was the natural result of the missile-throwing pro- clivities of some of Filas 's fellow workers and was a risk of the work as it was conducted." 24 Where a taxicab chauffeur was injured while scuffling with a fellow employee while he was awaiting a call, the court held that he was not engaged in any act incident to his employment, and therefore his injury did not arise out of the employment." Where an employee, while running to punch the time clock when the noon whistle blew, collided with a fellow employee, breaking several ribs, one of which punctured his lung causing death, the court said: "At the time of the accident, Raynor was in the performance of a duty imposed upon him by his employer. The performance of this duty, if not the proximate cause, was a concurring cause of the injury."" 360. Using Elevator Contrary to Instructions. An employee was injured while bringing some goods from another floor at the direction of his foreman. There was a notice in the elevator for- bidding anyone except the regular elevator operator to use the elevator. The evidence tended to show that it had been custom- ary for other employees to use the elevator when the operator was not at his post. In the present case the operator was absent, and in an attempt to use the elevator the foot of the employee 24. State ex rel. Johnson Sash & Door Co. v. District Court of Henni- pen Co., 140 Minn. 75, 167 N. W. 283, 16 N. C. C. A. P21, 2 W. C. L. J. 95, 25. Dunbar v. Horace F. Wood Transfer Co., Indiana Ind. Bd., (1916), 12 N. C. C. A. 250. 26. Raynor v. Sligh Furniture Co., 180 Mich. 168, 116 N. W. 665, 4 N. C. C. A. 851, L. R. A. 1916A 22, Ann. Cas. 1916A 386. Note: For case on injuries suffered as the result of an act of a fellow employee see titles "Sportive Acts'" 285 ante, "Willful Misconduct," 283 and 284 ante. 877 360 WORKMEN'S COMPENSATION LAW was crushed. It was held that under the circumstances the acci- dent arose out of the employment. 27 An employee was in the habit of using an elevator in the ad- joining portion of a building, which he was not supposed to use in bringing materials to the office. While there was evidence tending to show that the use of the elevator was contrary to orders, there was also evidence to the effect that the employer knew of the practise and never considered it of a nature sufficient- ly serious to merit a rebuke. The court affirmed a finding of the commission to the effect that the employer acquiesced in the cus- tom, and even though the "boy, who was 16 years of age and had never worked out before, may have been somewhat at fault, does not deprive the claimant of the right to compensation. N. Y. Cen- tral R. Co. v. White, 243 U. S. 188, 37 Sup. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Gas. 1917D, 629. The presumption is that the case comes within the Workmen's Compensation Law, Sec. 21 " 28 Where a night watchman was found dying at the bottom of the shaft of an elevator which he was forbidden to use, the court held that the evidence was insufficient to justify a conclusion that deceased was at the elevator shaft in the performance of his duties. 29 The regular operator of an elevator was absent, and the ap- plicant secured an engine tender to operate the lift in order to enable him to take coal to the upper floors, and while ascending his heel became caught and was seriously injured. It was held that applicant was doing what he was told to do, and in getting another employee to operate the lift and not touching it himself sufficiently complied with the instructions forbidding him to use the lift, and therefore his injury arose out of the employment. 30 27. Kreutz v> R. Neuman Hardware Co., 37 N. J. L. J. 58. 12 N. C. C. A. 486. 28. Smith v. H. J. Bartle Mfg. Corporation (1919), 189 App. Div. 426, 178 N. Y. S. 589, 5 W. C. L. J. 06. 29. Moyer v. Packard Motor Car Co., (1919), 171 N. W. 403, 205 Mich. 503, 3 W. C. L. J. 756, 18 N. C. C. A. 1028. 30. Marshall v. Joseph Rodgers & Sons Ltd., (1918), W. C. & Ins. Rep. 39, 17 N. C. C. A. 381. 878 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 361 Where an employee, engaged in operating an engine in the basement, goes to an upper floor and volunteers to take fellow employees to a floor above w an elevator, and is killed in so doing, his conduct took him outside the scope of his employment, and an injury so sustained did not arise out of the employment. 31 361. Using Machinery Other than that Employed to Use. A boy employed as a general roustabout in a factory was subject to orders from different foremen. On the day of the accident the boy was set to work making hoops. While so engaged another foreman requested him to make a box, and the boy undertook to operate a circular saw in preparing boards for the box, and while thus engaged his hand came in contact with the saw sustaining in- juries. "Plaintiff contends that defendant was not acting with- in the scope of his employment in undertaking to make the boxes; that he had no right to undertake the operation of the saw ; and that had he followed the instructions of his foreman he would then have been engaged in unloading lumber from the car. De- fendant testifies that on one or two other occasions he had used the saw under instructions from Altmann, and his testimony in this respect is not disputed. The record shows that he was subject to the orders of different foremen. These several foremen may have differed in rank, but defendant had during his employment taken orders from each of them. He was only a boy of immature years. As shown by the testimony quoted of the foreman who em- ployed him, it was his duty to 'do anything in the line of common labor around the shop. ' This being true, he cannot be held to the strict accountability of his acts. Accustomed as he was to take orders first from one foreman and then from another, when the foreman of the oleomargarine department signified his desire that defendant make a box, he might well assume that it was his duty to obey, and that that order countermanded the order given by the . other foreman earlier- in the day to assist in unloading the car of lumber. It is clear that he was engaged about the premises where his services required his presence, during proper hours of service, and that his labor was calculated to promote the master's business. 31. Waters v. Wm. Taylor Co., 218 N. Y. 248, 112 N. E. 727. 879 362 WORKMEN'S COMPENSATION LAW He had theretofore used the saw under the eye, if not under the direction of his immediate foreman, Altman, and at the time the accident occurred he was carrying out the order, implied, if not directly expressed, of one of plaintiff's foremen, who stood watch- ing him as he worked." 32 Where a night watchman was injured while usyag a circular saw to obtain a board to barricade a door, the court, in annulling an award, said: "Assuming that it was within the scope of the applicant's employment to see that the doors of the premises were properly secured by locking, nevertheless we are of the opinion that his resort to the use of a circular saw for the purpose of making a board that would answer the purpose of extending a;-ross the door was entirely beyond the scope of his employment, and not in the contemplation of his employers, and was not a resort to reasonable means for the purpose of securing the end intended by him at that time." 33 Where an employer knows of and acquiesces in a practise among employees of exchanging work, an injury sustained, while' exchang- ing work with a fellow employee, arises out of the employment. 34 362. Volunteers. An associate member of a fire department was killed while assisting the chief engineer of the fire department in extinguishing a fire. An associate member was under no obliga- tion to respond to fire alarms. The city recognized the fact that Cole was performing the duties of an active member and paid the sum required under the general municipal law. The fire had oc- curred on the premises of Cole's employer and his dependents sought compensation from the employer manufacturing company for his death. The court, in reversing an award, said: "The accident to Cole did not arise out of or in the course of his em-, ployment, nor was it incidental thereto. The accident occurred 32. Morris & Co. v. Gushing, (1919), 172 N. W.*691, 103 Neb. 481, 4 W. C. L. J. 268, 18 N. C. C. A. 1029. 33. Brusster v. Indus. Ace. Comm., 35 Gal. App. 81, 169 Pac. 258, 15 N. C. C. A. 278. 34. Sunnyside Coal Co. v. Indus. Comm., 111. , (1920), 126 N. E. 196, 5 W. C. L. J. 697. Note: See "Added Risks to Peril," "Emergency," "Volunteers." 880 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 362 while he was rendering services} as a fireman, and while he was subject to the control and direction of the chief engineer of thf fire department, and not of his employer. The fact that the fire occurred on the premises of hk employer was a coincidence. If it had occurred elsewhere the legal aspect of the case would not be different. Cole may have responded more willingly because the fire was on his employers' premises. It is impossible to de- termine whether he did or not. It is immaterial. No duty required him to act. No request to do so came from his employer. HLs allegiance and duty were to the organization with which he was acting, and to the orders, direction, and control of its chief engineer alone he was subject. We do not hold that if the deceased, pursuant to a request of his employer, had acted as a fireman, with the acquiescence of the chief engineer of the fire department and subject to his orders, liability would not exist on the part of the appellants. But such request by the employer was not ex- pressed, and the circumstances clearly are not such as to justify an inference of an implied request, even assuming that an implied request would create liability against the appellant." 85 Where one employed to operate paint mixers volunteered to re- move a belt, which in no way affected his work, and in so doing sustained injuries, the court, in holding that the injuries did not arise out of the employment, said: "In the instant case deceased was neither required nor expected to assist in adjusting this belt. The foreman had called two men to help, and it is apparent no more were needed. It was merely a question of time- until the belt would have been adjusted. There was no emergency. The condi- tion of that belt did not affect the part of the work which deceased was employed to do. Deceased here volunteered his services, and before his foreman could command him not to perform the service he had placed himself in such a position that he could not save himself from injury. A 'volunteer' is one who introduces himself into matters which do not concern him and does or undertakes to do something which he is not bound to do, which he has not been in the habit of doing, with his employer's knowledge or consent, 35. Cole T. Fleischmann Mfg. Co., 1S9 App. Div. 306, 178 N. Y. S. 451, 5 W. C. L. J. 95. 881 W. C. 56 > 362 WORKMEN'S COMPENSATION LAW or which is not in pursuance of any interest of the master and which is undertaken in the absence of any peril requiring him to act as on an emergency. As it appears from the testimony of the fellow employees of deceased that deceased was volunteering his services and was of his own volition intermeddlingjwith something entirely outside the work for which he was employed, the judgment of the circuit court must be and is affirmed." 36 The third man in attendance on a traction engine was killed when he fell from the moving engine and was run over. Deceased was cleaning the lamps of the engine at the time of the accident. In holding that the accident did not arise out of the employment, the court said: "I think that the county court judge was quite right. There is unchallenged evidence that it was no part of the duty of a third man to attend to the lamps. The driver said in his evidence that if a lamp was burning dimly and the third man noticed it, he might tell the driver, who might stop the engine and then attend ta it himself, or the third man might, if they stopped to do it. If the deceased had been injured while attend- ing to a lamp in such a case, the accident would have arisen out of the employment, but the evidence does not go to that. The evidence is uncontradicted that the deceased had nothing to do with the lamps or machinery. Of course, if it were a case of emerg- ency or if the man had been asked to do it by the driver, different considerations would arise. I think that the appeal must be dis- missed. ' ' 37 A girl, while in search of a foreman to be definitely assigned to some particular work, attempted to pick some loose threads from a machine, a custom existing in the plant and not prohibited, and in doing so her hand became caught and injured, necessitating its amputation. It appeared that the applicant had no duty to cause her to interfere with the machine at which she was injured; that she was not requested by the operators to assist them, and there 36. George S. Mepham & Co. v. Indus. Comm., (1919), 124 N. E. 540, 289 111. 484, 5 W. C. L. J. 36. 37. Payne v. Curtis & Son, (1915), W. C. & Ins. Rep. 501, 15 N. C. C. A. 273; Re Claim of Simpson, Op. Sol. Dep. C. & L. (1915), 316; Belong v. Krebs, 1 Gal. I. A. C. D. 592; Adams and Westlake Co. v. Indus. Comm., - 111. , (1920), 127 N. E. 168, 6 W. C. L. J. 8. 882 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 363 was no necessity for her interference. The court held that the accident arose out of the employment. 88 A mere volunteer in the absence of any emergency, is not with in the protection of the act. 30 In responding to the request of a servant for assistance in doing his work, decedent, not an employee of any of the contractors, was not a mere volunteer or liscensee, since the servant had implied authority to obtain such help as was necessary for the performance of his master's work. 40 Where two railroads maintained parallel tracks over a crossing, and each maintained its own flagman at the point, the death of one of the flagman, while rescuing a child from the tracks of the other railroad, did not arise out of and in the course of the employment. 41 "Where an engineer at a pumping station attempted to repair a cross arm, which was broken allowing the electric wires to sag to the ground, he was not a mere volunteer, as an emergency existed which justified his conduct. 42 363. Watchmen. Blasted stumps constituted the cheapest fuel to be secured and it was cutomary to obtain fuel in such manner. A mine watchman, who had not been forbidden to use explosives, was killed while blasting stumps for fuel. It was held that while deceased may have been negligent he was not guilty of such wilful misconduct as would preclude a recovery. 43 38. Beattie v. Alexander Tough & Sons, (1917), W. C. & Ins. Rep. 93, 1 Sc. L. T. 27, 15 N. C. C. A. 274. 39. United Disposal and Recovery Co. v. Indus. Comm.; also United Engineering Co. v. Same, 111. , (1920), 126 N. E. 183, 5 W. C. L. J. 682. 40. Sandon v. Kendall, Mass. , 123 N. E. 847, 4 W. C. L. J. 601. Note: See "Emergency." 41. Priglise v. Fonda J. & G. R. Co., 183 N. Y. App. Div. 414, 6 W. C. L. J. 487. 42. Young v. Miss. R. Power Co., la. , (1921), 180 N. W. 986. 43. Ocean Ace. & Guar. Corp. Ltd. v. Pallaro, (Colo.), (1919), 180 Pac. 95, 4 W. C. L. J. 15. 883 363 - WORKMEN'S COMPENSATION LAW A watchman at a trench where gas was escaping was found in the trench in the morning asphyxiated. In holding that the death was due to an accident arising out of the employment, the court said: "In such an environment the natural presumption is that the deceased met death while engaged in his occupation. There was no evidence that between 4 and 6 o'clock in the morning he voluntarily entered the trench for any purpose incompatible with his duty, nor was there evidence that he was non compos or abnormal and unable to appreciate and realize the necessary incidents of the danger which surrounded him, and to guard against the mani- fest and inherent perils of which he was enjoined to warn the public. In the absence of proof to that effect, the theory of suicide must be eliminated from the case, for the rule seems to be settled that whete a person is found dead the presumptions are that his death was natural or accidental, unless the evidence shows him to have been insane, that suicide will not be presumed, and that the fact of death in an unknown manner creates no such presump- tion." 44 Where a night watchman's body was found at the bottom of a stairway of one of the buildings which he patroled, the court, reversing a finding that deceased was not engaged in a hazardous employment, said: "An employee is injured while performing an act which is fairly incidental to the prosecution of a business and appropriate in carrying it forward and providing for its needs, he or his dependents are not to be barred from recovery because such act is not a step wholly embraced in the precise and character- istic process or operation which has been made the basis of the group in which the employment is claimed." 45 Where a night watchman disappeared while on duty, and all the circumstances at least inferentially pointed to murder, the court said: "The burden was upon the applicant to establish by com- petent proof the death of Shea. Doubtless such proof may be made by circumstantial evidence, and the actual finding of the body is 44. Manziano v. Pub. Serv. Gas. Co., 92 N. J. L. 322, 105 Atl. 484, 3 W. C. L. J. 488. 45. Fogarity v. National Biscuit Co., 221 N. Y. 20, 116 N. E. 346, 16 N. C. C. A. 639; Rev'g, 175 N. Y. App. Div. 729, 161 N. Y. S. 937; Kabyra v. Aaams, 162 N. Y. S. 269, 14 N. C. C. A. 430, 176 App. Div. 43. 884 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 363 not an indispensable requisite to a conclusion, in a civil case, that one had met his death by violence." 46 Where a nightwatchman died from heart failure, which was accelerated by the excitement caused by the breaking out of a fire in the plant, the court, in holding that the death was due to an accident arising out of the employment, said: "In the instant case the whole circumstances, including the fire, the overexertion and the excitement of the deceased, may be said to have been an accident. It certainly was a fortuitous circumstance. The fact that the man's condition predisposed him to such an accident or stroke must be, under the authorities, held to be immaterial. While the exertion and excitement which accelerated the heart action were not the sole, proximate cause of the death, they were both certainly concurring causes." 47 Where a night watchman obtained permission to leave his work and to take charge of an engine, was struck by the yard engine and killed, the court held that the watchman was away by permis- sion and was not without the scope of his employment, and further, the moment deceased had started in the direction of the engine he would be again within the ambit of his employment, even if he had left it temporarily. 48 Where a watchman, whose duties were to guard an ice pond and prevent anyone from cutting holes therein for the purpose of fishing, was drowned when the ice broke, it was held that the acci- dent arose out of his employment. 49 Where a night watchman was wounded when his pistol fell from its holster and discharged,, the court held that, since deceased was engaged in chasing away tresspassers from a train engaged in interstate commerce, he was at that time engaged in interstate 46. Western Grain & Sugar Co. v. Pillsbury, 173 Cal. 135, 159 Pac. 423, 14 N. C. C. A. 430. 47. Schroetke v. Jackson Church Co., 193 Mich. 616, 160 N. W. 383, 16 N. C. C. A. 636. 48. Conyea v. Canadian Northern R. Co., 5 Western Weekly Rep. 607 (1913), 12 N. C. C. A. 898. 49. Jillson v. Ross, 38 R. I. 145, 94 Atl. 717. 885 364 WORKMEN'S COMPENSATION LAW commerce, and not within the protection of the compensation act. 50 Where proof was offered that an injury to a railroad yard watchman occurred in the place he would be while performing his special duty of watching for thieves on an interstate train, this is not inconsistent with his then being engaged in his general duties of watchman, and the burden of proving that he was en- gaged in interstate commerce rests upon the employer seeking to escape liability under the workmen's compensation act. 51 Where an employer knew that the paymaster kept a pistol, and failed to require that the pistol be kept out of sight of a fifteen year old errand boy, injuries to a watchman, through the acci- dental discharge of the pistol while the boy was playing with it was due to a risk of the employment. 52 364. Window Cleaner Falling From Ledge. A porter in a saloon was injured when he fell from a second story window, which he was cleaning in the apartment of his employer. The regular duties of the porter did not include the cleaning of the apartment windows, and when he did clean such windows he received compensation for it separate from his regular salary. The board held that he was doubly excluded from the pro- tection of the act, for he was a casual employee, and not per- forming duties in connection with the line of business of the em- ployer at the time of the injury. 54 A window cleaner fell while passing from one window to an- other by means of a narrow ledge on the outside, instead of going inside in safety. It was held that the accident arose out of the employment. 55 50. Smith v. Indus. Ace. Comm., 26 Cal. App. 560, 147 Pac. 600, 8 N. C. C. A. 1065. 51. Atchison T. & S. F. Ry. Co. v. Indus. Comm., 290, 111. 590, 125 N. E. 380, (1919), 5 W. C. L. J. 364. 52. Marohiatello v Lynch Realty Co., -- Conn. , 108 Atl. 799, 5 W. C. L. J. 498. 54. Castellotti v. McDonald, 1 Cal. I. A. C. 351, 11 N. C. C. A. 375. 55. Bull worthy v. Glanfield, (1914), 7 B. W. C. C. 191. 886 ACCIDENT ARISING OUT OP COURSE OP EMPLOYMENT. 364 Where a janitor employed by the city of Boston was required to perform duties ranging from window washer to fireman of the boiler, and was injured when he fell from a window ledge while engaged in washing a window, the court held that in determining whether a janitor is a laborer, mechanic, etc., within the Mas- sachusetts Act, the specific duties of the particular janitor in ques- tion must be considered, and a finding that this janitor came with- in the class of laborers entitled to the protection of the act when injured in the course of his employment was, in view of the evi- dence, justifiable. 66 56. White's Case, 226 Mass. 517, 116 N. E. 481, 14 N. C. C. A. 951. S.S7 . - CHAPTER VII. DEATH'S BENEFITS, FUNEBAL EXPENSES AND DEPENDENCY. Sec. 365. Death Benefits. 366. Funeral Expenses. DEPENDENTS. 367. Who Are Dependents and What Constitutes Dependency. 368. Presumption Relating to Dependency. 369. Wife Living Apart From Husband. 370. Dependency and Matters Relative Thereto as Question of Law or Fact. 371. Partial Dependents. 372. Total Dependents. 373. Dependency of Parents, Grandparents, and Other Relatives of De- ceased Workmen. 374. What Children May Be Dependents. 375. Alien Dependents, and Constitutionality of Provisions Pertaining to Aliens. 376. Illegal and Divorced Wives. 377. Desertion and Non-support. 378. Marriage or Remarriage of Dependent. 379. Rights of Dependents Independent of the Rights of Deceased, and Third Parties. 380. Death of Beneficiaries or of an Employee Before the Period For Which an Award Has Been Made Has Elapsed. 381. Absence of Dependents. 382. Inheriting From the Estate of Deceased or Receiving Benefits From Other Sources. 383. Claim for Compensation by the Personal Representative or Adminis- trator. 384. Dependent of More Than One Workman. 385. Submitting to an Operation. 386. Estopped to Dispute Claim of Dependents After Deceased's Death. 387. Necessity of Administrating Upon Estate of Workman. 388. Divisi of Compensation Between Dependents Double Compensa- tion. 389. Deductions. 390. Evidence. 391. Burden of Proof. 392. Guardians. 393. Dependency Under the Federal Act. 394. Adoption Under the Federal Act. 888 DEATH BENEFITS, FUNERAL EXPENSES AND DEPENDENCY. 365 Sec. 395. To Whom Compensation of Children With a Surviving Parent is Paid. 396. Illegitimate Children. 397. Who Is the Widow of an Employee. 365. Death Benefits. The English act provides that the amount payable to dependents, in case of death, must be reason- able and proportionate to their injury, and the exact amount is to be determined for each case by the arbitration committee. This language required English courts, in cases of partial dependency, to inquire whether the deceased was a financial asset and whether his death was a financial injury to the dependents. 1 In the United States the methods provided for determining compensation for death vary considerably, and do not in all cases depend upon the fact that the deceased was an actual financial benefit to his dependents. It is sufficient under some acts that at the time of the injury, there were parties receiving his earnings So it has been held under the Connecticut act that if the depend- ent was legally entitled to the wages of a minor or actually received his wages, it was immarterial that the cost of the minor's support used up all of his contributions. 2 The benefits for death in many cases in the United States are based upon the annual earnings of the deceased, and in most eas- es approximate three or four years of the deceased employee's earnings. Alaska and "Wyoming provide for fixed amounts with- out any reference to wages. 8 Porto Rico provides for $1500.00 plus 75# of wages for 208 weeks. 4 Five states provide for annual earnings for three or four years. 5 The majority of states apply a wage percentage for speci- 1. Hodgson v. Owners of West Stanley Colliery, (1910), 3 1). W C. C. 260. 2. Mahoney v. Gamble-Desmond Co., 90 Conn. 255, 96 All. 1025; Koether v. Union Hdw. Co., 1 Conn. Comp. D. 38; Metal Stampings Corp. v. Indus. Comm., 286 111. 528, 121 N. ti. 258. 3 W. C. L. J. 258; In re Peters, 64 Ind. App. , 116 N. E. 848, 16 N. C. C. A. 183. 3. Alaska and Wyoming. 4. Porto Ktco. 5. California, Kansas, and New Hampshire, for 3 years; Illinois and Wisconsin for 4 years. 889 365 WORKMEN'S COMPENSATION LAW fied periods. Of these, one* pays compensation for 260 weeks, one 7 pays for 270 weeks, ten pay for 300 weeks, 8 four for 312 weeks, 9 one pays for 335, 10 one for 350 weeks, 11 one for 360 weeks, 12 five pay for 400 weeks; 13 three pay for 416 weeks 14 and one pays 500 weeks. 15 Four states provide for benefits until the death or re- marriage of the widow or dependent or invalid widower. 16 The Oklahoma law does not cover fatal accidents. Most states provide for a uniform rate in death cases, but in 18 states the compensation varies with conjugal conditions and the number of children, the percentage, ranging from 10 to 66% percent of the average weekly wages of the deceased em- ployee 1 . 17 Where there are provisions for children as beneficiaries, the payments in their behalf usually terminate on their reaching the age of 16 or 18 years, but many of these provide that the pay- ments will not cease at the 1 ages named if the recipient is phy- sically or mentally incapacitated from earning a livelihood. The remarriage of a widow is made to terminate the benefits in a number of states, 18 though in a few instances a lump sum is payable on such remarriage, 19 If the benificiary is a dependent widower provision is made in two states for a similiar allowance in case of remarriage, 20 in one state if there are children, 21 and 6. Vermont, 7. Delaware. 8. Indiana, Iowa, Louisiana, Maine, Michigan, Minnesota, New Jersey, New Mexico, Pennsylvania, and Rhode Island. 9. Colorado, Connecticut, Hawaii and Utah. 10 Kentucky. 11. Nebraska, 12, Texas, 13, Nevada, Arizona, Tenessee, Idaho & Mon- tana. 14. Maryland, Ohio & South Dakota. 15. Massachusetts. 16. New York, Oregon, Washington, and West Virginia. 17. Alaska, Deleware, Hawaii, Idaho, Illinois, Louisiana, Minne- sota, Montana, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Vermont, Washington. West Virginia, and Wyoming. 18. Kansas, Indiana, Kentucky, Louisiana, Nevada, New Jersy, New Mexico, New York, Oregon, Pennsylvania, Vermont, Washington, West Virginia and United States. Minnesota and Nebraska if there are children, and Maryland unless there are dependent children. 19. New York, Washington, Wyoming. In Colorado and Minnesota a lump sum is allowed if there are no children. 20. New York and Wyoming. 21. Nebraska. 890 DEATH BENEFITS, PLNKKAI. EXPENSES AND DEPENDENCY. 365 in one state payments cease unless there are dependent children One state provides for cessation of payments to a dependent hus- band upon his becoming capable of self support. 28 In the acts <>!' the states mentioned in the foot note hereto pro- vision is made for termination of payments upon the beneficiary's death, or attaining the age of 16 or 18 years. 24 Many states pro- vide that in ease a benificiary becomes disentitled to a continuance of the compensation, his share will go to the remaining depen- dents Six states provide that if death is due to any other cause than the original injury all further liability for compensation ceases. 20 One state provides that the commission has authority to apportion benefit payments according to need and equity regard- less of priority. 27 .Minnesota follows the British Act very closely, in that depend- ants receive a percentage income based upon their pecuniary loss,' 28 and the salary actually received by the employee at the time of his death represents such loss. Under a,n express provision of the New York Act. the probable increase of minor's wages had he lived, may be considered. 29 The death must result from the injury in order that depend- ents may be entitled to compensation, therefore where an employee 22. Maryland. 23. Louisiana. 24. Indiana, Kanasa, Kentucky, Louisiana, Maryland, Minnesota. Montana, Nebraska, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Vermont, Washington, West Virginia and United States. 25. Conecticut, Delaware, Hawaii, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maine, Michigan, Minnesota, Nebraska, Pennsylvania, Ver- mont, Washington and Colorado to personal representative or other dependents. 26. Iowa, Kansas, Michigan, Montana, Pennsylvania and Rhode Island. 27. California. 28. State ex rel. Gaylord Farmer's Co.-Op. Creamery Ass'n. v. Dis- trict Court, 128 Minn. 486, 151 N. W. 182, 9 N. C. C. A. 86. 29. Kilberg v. Vitch, 171 App. Div. 89, 156 N. Y. Supp. 971 ; Western Pac. R. Co. v. Indus Com., Cal. , 181 Pac. 787, 4 W. C. L. J. 348; 891 366 WORKMEN'S COMPENSATION LAW was awarded one hundred weeks compensation but died from oth- er causes before receiving all of the payments, his dependents were not entitled to compensation. 80 Death must occur within one year from the date of the accident to entitle deceased's survivors to a right of action under the Lou- isiana act. 31 Where there is no voluntary payment on the part of the em- ployer, the Industrial Commission in determining the Compensa- tion payable should also determine the persons entitled to compen- sation as a result of the deceased's death. 32 . 366. Funeral Expenses. With one exception the acts of all the states provide a definite maximum amount for funeral expense varying from $75 to $150 and in some states a maximum of $100 or $200 is allowed for the combined expense of last illness and burial. S2a Under the New York Workman's Compensation act, allowing for reasonable funeral expenses not exceeding one hundred dollars, a claim by a relative for services rendered in connection with the Hyman Bros. Box & Label Co., v. Indus Com., Gal. , 181 Pac. 784, 4 W. C. L. J. 343. 30. U. S. F. & G. Co. v. Salser, Tex. Civ. App. , (1920), 224 S. W. 557 6 W. C. L. J. 716; Heiselt Const. Co. v. Indus. Comm.; Utah- , (1921), 197 .Pac. 589. 31. Monvoisin v. Plant, La. , (1920), 85 So. 206, 6 W. C. C. J. 448. Note: For death benefits and dependency see the following sec- tions of the respective acts; 7, 8g, 21, 24 of Illinois Act; Sees. 36, 37 38, 40 of Indiana Act. See's 2477-m 9c, d, e, f, and 2477-m 10 of Iowa Act; Sees 5905 of Kansas Act; See's 12, 13, 15, of Kentucky; Sec. 8, (1) (f) of Louisana Act; Sees. 4f, 51, 57, 58, sec. 4f, 6, 8, of Col- orado Act; Part 2, Sec. 5, 8, 12, of Michigan, Act; (Sec. 8207f, 8208 (4-19) of Minnesota Act; (3693 Sec. 143 b), (3663 Sec. 113) (2664 Sec. 114) and (3665 Sec. 115d) of Nebraska Act. Sec. 23 & 24g of South Dakota Act; Sec. 2394-9 of Wisconsin Act, Sec. 10 & 11 of United States Act, Sec. 25, 28f & 30 of Tennessee Act. 32. Henry Pratt Co. v. Indus. Comm., 111., (1920), 127 N. E. 754, 6 W. C. L. J. 296; Smith-Lohr Coal Mining Co. v. Indus. Comm., 286 111. 34, m N. E. 231; Keller v. Indus. Com, 291 111. 314. 32a. Col., Ky., Md., Mont., N. M., $75; Ala., Gal., Conn., Hawaii, Idaho, Ind., la., N. J., N. Y., N. D., Or., Tenn., $100; Alaska, 111., Kan., Mo., Nebr., Ohio, S. D., Utah, $150. Last illness and burial expense Del., La., Mass., Minn., N. H., Pa., Tex. $100 and Me., Mich., and R. I., $200. Ari- zona reasonable amount. Porto Rico no provision. 892 DEATH liKNKKlTS, FUNERAL EXPENSES AND DEPENDENCY. 366 burial will not be allowed, where claimant had not expended any :: : moneys Under Sec. 22 of the California Workmen's Compensation Act, providing that jurisdiction of the commission is obtained upon fil- ing of an application in writing by a party interested, stating the nature of the controversy, or concerning any liability arising out of or incident thereto, where no application was at any time made by one not related to deceased servant for reimbursement for funer- al expenses paid by him in the burial of deceased, the commission had no jurisdiction to make an allowance therefor on the ground that it appeared that such third person, a stranger to the record, had made such disbursement. 82 In a proceeding under the New Jersey Workmen 's Compensation Act, amended in 1913, to obtain compensation for the death of an employee who left actual dependents, it was held error to make an allowance for funeral expenses. 85 But the New Jersey Act as amended in 1914, provides that ''if death results from the accident, whether there be dependents or not, expenses of last sickness and burial are to be allowed, the cost of burial however not to exceed one hundred dollars. Under the English Workmen's Compensation Act the reasonable expenses incurred in the burial of deceased may be allowed, ex- cept in cases of total dependency, where the amount is arbitrarily determined by the compensation schedule. 88 Where the statute provides for funeral expenses, it does not thereby authorize the employer to contract for and limit the amount to be expended by the family, as these are matters to be determined by the relatives of deceased. 37 33. Tierre v. Bush, etc. Co., 172 App. Dlv. 386, 158 N. Y. Supp. 88 3. 34. Western Indemnity Co. v. Indus. Ace. Comm., 35, 104, 169 Pac. 261, 1 W. C. L. J. 300, 16 N. C. C. A. 816. 35. Taylor et al. v. Seabrook, 87 N. J. L. 407 4 Atl. 3, 11 N. C. C. A. 710. 3B. Bevan v. Drawshay Bros. Ltd., (1902), 1 K. B. 25, 71 L. J. K. B. 45), 85 L. T. 496, 18 T. L,. K. 17, 4 W. C. C. 110. 37. Konkel v. Ford Motor Co., Mien., ind. Ace. Bull (Mo. 3) 2, 11 N. C. C. A. 716. 893 366 WORKMEN'S COMPENSATION LAW. Where funeral expenses exceeding the statutory amount had been paid by parties other than the applicant, the commission held that the claim for the funeral expenses would not be recognized as a lien upon the award. 38 The Oklahoma Act does not apply to an accident resulting in death (Art. 6 Sec. 1). This ommission was necessary to avoid a conflict with the state constitution/" 9 The following, decisions have been rendered by the California Commission in cases involving burial expenses. In cases of partial dependency, where the total award does, not exceed three times the average annual earnings, burial expenses not exceeding $100 should be charged against the employer, and not against the death benefit awarded to the partial dependent under Sec. 15 (c) of the California Act, as amended. 40 The entire burial expense cannot exceed $100, except on con- sent of the person entitled to the death benefit; 41 and when de- pendency is total, the burial expenses are to be paid out of the award, at the time of making such award, either to the person to whom the award is made or to the one entitled to receive the funeral expenses. 42 Since the award includes the burial expenses, an employer who has paid the expenses of burial has a lien upon the award for reimbursement for the sum advanced. 43 Funeral expenses are payable in cases of partial dependency under the California Act. 44 And where there is no one who can claim compensation, the Com- mission has authority to adjust a claim made by an undertaker for expenses incurred in burial. 45 38. Hefferman v. Morse Detective & Patrol Service Co., 2 Gal. 1. A. C. 364 (1915), 11 N. C. C. A. 717. 39. Lahoma Oil Co. v. State Industrial Commission, Ukl. , 17o Pac. 836. 40. Werly v. Pacific Gas. Co., (1916), 3 Cal. Ind. Ace. Com. 254. 41. Sigman v. Columbia Oil Producing Co., 3 Cal. 1. A. C. 2. 42. Fynchon v. Ernest Higgins Co., (1916), 3 Cal. 1. A. C. 286. 43. Cleveland v. Hastings 2 Cal. I. A. C. 18. 44. Newman v. Casper Lbr. Co., 3 Cal. I. A. C. 102. 45. H. F. Suhr & Co. v. State Compensation Insurance Fund., 2 Cal. I. A. C. 717. 894 DEATH BENEFITS, FUNERAL EXPENSES AND DEPENDENCY. 366 Twenty-seven states provide for burial expenses in case the re- ceased leaves dependents, 40 and all of the states, except two, 47 make similar provision in case of no dependents. In the latter event the entire liability of the employer is limited to such burial expenses, except in four states. 48 In Idaho $1000 additional must be paid into the industrial administration fund; in Kentucky $100 addi- tional must be paid to the personal representative of the employee ; in \ew York $100 additional is required for the creation of a special fund, from which are to be paid benefits to the employees who sustain successive major injuries, and in Utah $750 additional must be paid into the state insurance fund if the employer is not insured in the fund. The payment of funeral expenses by an employer with the under- standing that there were no dependents in no way affects his lia- bility. 40 Under the Federal Act funeral expenses, like medical and hospital expenses, are chargeable against the amount recovered and are not to be charged against the employer in addition to the award. 80 The allowing of funeral expenses under the Federal 'Act is discretionary with the commission, therefore, where these ex- penses are paid by friends of the deceased at the place where he worked, there will be no allowance to the relatives of the deceased. 41 Although the statute provides for funeral expenses not to exceed $100, in a case where it was necessary to provide a hermitically sealed coffin the commission allowed $140.25. 25 46. Connecticut, Delaware, Georgia, Hawaii, Idaho, Indiana, Iowa, Ken- tucky, Louisana, Maryland, Minnesota, Montana, Nebraska, Nevada, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Porto Rico, Utah, Vermont, Washington, West Virginia, Wisconsin and Wyoming. 47. Porto Rico and Oklahoma. 48. Idaho, Kentucky, New York and Utah. 49. Northrn Redwood Lbr. Co. v. Indus. Comm. , Cal. App. , 166 Pac. 828, A 1 W. C. L. J. 267. 50. In re Geo. W. Drummond, 3rd A. R. U. 8. C. C. 97. 51. In re Kathryn Mahoney 2nd A. R. U. S. C. C. 63. 52. In re Frederick A. Jordan, 2nd A. R. U. S. C. C. 63. 895 367 WORKMEN'S COMPENSATION LAW DEPENDENTS. 367. Who are Dependents and what Constitutes Dependency. The acts generally set forth the classes of persons entitled to claim compensation as dependents. It is therefore essential that the act, under which rights are claimed, be examined. Those de- cisions of the courts construing the provisions of the statutes re- lative to who are dependents and what constitutes dependency, which differ somewhat lender the different state acts, will be found through out this chapter under their respective classifications. A constitutional provision authorizing the legislature to enact laws "providing compensation to employees," must be construed to authorize laws not only giving compensation to employees them- selves, but also to their dependents. 53 No exact standard for the determination of dependency is pres- cribed by statute and it is difficult, if not impossible, to frame a definition which will include the varying conditions under which dependency may exist. 54 However, the statutes enumerate who shall be presumed to be dependents, also who may be dependent when actually depending upon deceased for support and one claiming dependency must bring himself within one of the classes enumerated by the statute under which he claims, otherwise the fact that the party was re- ceiving support from decedent will not make him a dependent. 55 It has been held in California that in order that dependency of certain persons may be established it is immaterial whether their maintenance has been voluntarily and gratuitously assumed or is legally imposed; and the legislative discretion to determine what dependents shall become distributees of the indemnity is not meas- 53. Western Metal Supply Co. v. Pillsbury, 172 Cal. 407, Am. Cas. 1917E, 390, 156 Pac. 491; In re Nelson, 217 Mass. 467, 105 N. E. 357. 54. Miller v. Riverside Storage Co., 189 Mich. 360, 155 N. W. 462. 55. Berger v. Thomas Oakes & Co., 39 N. J. L. J. 296, 13 N. C. C. A. 468; Drummond v. Isbell-Porter Co., 177 N. Y. S. 525, 188 N. Y. App. Div. 374; 4 W. C. L. J. 535, (1919); Benjamin F. Shaw Co. v. Palmatory, Del. , (1919), 105 Atl. 417, 3 W. C. L. J. 424; Bonnano v. Metz Bros., 188 N. Y. App. Div. 380, 177 N. Y. Supp. 51, (1919), 4 W. C. L. J. 427; Birmingham v. Westinghuos Electric Mfg. Co., 180 App. Div. 48, 168 N. Y. Supp. 520, 16 N. C. C. A. 189; In re Derinza, 229 Mass. 435, 118 N. E. 942, 1 W. C. L. J. 795, 16 N. C. C. A. 87. 896 DEPENDENCY. 367 ured by the analogies of the Common Law, or the limitations of compensation acts in force at the time the constitutional provision was adopted authorizing the Legislature to enact a compensation act. 08 Dependency being a question of fact, at least until the facts are found, and the facts as varied as the number of cases, each caso must be decided upon its own facts. The first question to be de- termined is whether or not the claimant suffered loss in respect to his or her support or maintenance. This being found in the affrma- tive, it is then necessary to determine whether or not the claimant was entitled, legally or morally, to consider the contributions re- ceived from deceased as a part of his or her necessary livelihood ; that is, whether such contributions formed a part of the sort of support to which the claimant, within considerable radius of rea- son was entitled. "While no exact standard of living can be fixed to a certainty for any given class, still some standard is necessarv. If a janitress expended all the contributions received from a son on a wardrobe of silks,no one would likely contend that she was enti- tled to do so, and that such contributions were a necessary part of her support 4 at least, not to the full amount of the contributions. On the other hand, a little more latitude might be allowed a stenog- rapher, or other persons whose employment or station in life re- quire better clothes. However, the fact that some persons in the same class of employment and same degree of refinement live inde- pendently on less than the independent income of the claimant, aside from the contributions received from the deceased, is not de- cisive of the question of the claimant's dependency. Hence, in establishing a standard of living as a test, it is necessary to give it considerable elasticity ; and this was probably the intention of the legislatures of the various states when they placed such questions within the discretion of the boards and commissions for determi- nation. The legal obligation of a husband to support his wife, the claim- ant, the probability that it would have been discharged either voluntarily or under compulsion, the probability that the wife 56. Moore Shipbuilding Corp. v. Indus. Comm., Cal. , (1921), 196 Pac. 257. 897 W. C. 57 367 WORKMEN'S COMPENSATION LAW would have enforced her right if the obligation had not been dis- charged voluntarily are matters of proper consideration in de- termining whether or not the wife, at the time of the husband's injury, looked to his earnings for her support." Dependency under the Utah act, and under most other acts is to be determined upon the facts as they existed at the time of the injury. 58 But despite this provision a woman is entitled to com- pensation even though her marriage occurred subsequently to the date of the injury, which resulted in her husbands death for her right under the act is based, not on her dependency but on her wifehood. 69 The British Act makes dependency a question of fact in all cases. 60 Tinder the New York Act, where dependency was established, an award amounting to more than the contributions of deceased to his dependent mother, brothers and sisters was held to be author- ized. 61 "A dependent, in law, is one who is sustained by another or relies for support upon the aid of another ; who looks to another for support and relies upon another for reasonable necessaries con- sistent with the dependent's position in life. The dependency which justifies an award is personal dependency for support and 57. New Monckton Colleries v. Reeling, (1911), A. C. 648, 105 L. T. 337, '21 T. L. Rep. 551, 80 L. J. K. B 1205, 55 Sol, J. 687, 4 B. W. C. C. 332, 6 N. C. C. A. 240; McDonald v. Great Atlantic & Pacific Tea Co., Conn., (1920). Ill All. 65, 6 W. C. L. J. 525; Atwood v. Conn. Light & Power Co., Conn. , (1921), 112 Atl. 269; Morris v. Yough Coal & Supply Co., Pa. , (1920), 109 Atl. 914, 6 W. C. L. J. 210; Hancock et al. v. Imfcis. Comm., Utah , (1921), 198 Pac. 169. 58. Globe Grain and Milling Co. v. Indus. Comm., Utah, (1920), 193 Pac. 642, 7 W. C. L. J. 245; Johnson Coffee Co. v. McDonald, Tenn. , (1920), 226 S. W. 215;"Kelley v. Hoefler Ice Cream Co., App. Div. , 188 N. Y. S. 584. 59. Crockett v. International Ry. Co., 162 N. Y. S. 357, B 1 TV. C. L. J. 1292. 60. New Monokton Collieries Co. v. Keeling, (1911), A. C. 648, 80 L. J. K. B. 1205, 105 L. T. 337, 4 B. vV. C. C. 332, 6 N. C. C. A. 240; Simmons v. White, (1899), 80 L. T. 344. 1 W. C. C. 89, 68 L. J. Q. B. 507. 61. In re Hess, 191 N. Y. App. Div. 667, 181 N. Y. Supp. 674, 6 W. C. L. J. 75, (1920). 898 1>I 1'ENDENCY. 367 maintenance an actual dt'jM-n.lfiicy for support consistent with the dependent's position in life. It does not im-ludf the maintenance of others whom the dependent is under no legal obligation to main- tain, or contributions which merely enable the donee to accumulate money." 62 In the absence of evidence to show that deceased's brother was actually dependent upon him, an award in favor of the brother was erroneous. The giving of money to the grandmother of de- ceased to assist in paying off a mortgage, and not for support, does not constitute her dependent upon him, for the purpose )f the compensation law is to provide support for dependents, and not to pay their debts. 68 "The test is, not what conditions arise after the accident, but what was the condition at the time of the accident. Here it appears that the grandmother was saving money to pay on the mortgage, and to discharge other obligations, and that she was enabled to do this because 'poor Joe' helped 'out good;' but there is no evi- dence that her own husband was not in a position to meet his law- ful obligations." 64 62. Rock Island Bridge & Iron Works v. Indus. Comm., 287 111. 648, (1919), 122 N. E. 830, 4 W. C. L. J. 33; Dazy v. Apponaug, 36 R. I. 81, 89 Atl. 160, 4 N. C. C. A. 594; Simmons v. White Bros., (1899), 1. Q. B. 1005, 68 L. J. Q. B. 507, 1 W. C. C. 89, 80 L. T. 344; In re Hora, Ohio Ind. Comm., (1914), 6 N. C. C. A. 242; Jackson v. Erie R. Co., 86 N. J. L. 550, 91 Atl. 1035; Tirre v. Bus' Terminal Co.. 172 App. Div. 386, 165 N. Y. S. 883; McCarthy v. Order of Protection, 153 Mass. 314; McDonald v. Great Atlantic & Pacific Tea Co., Conn. , 111 Atl. 65, 6 W. C. L. J. 525; Alden Coal Co., v. Indus. Comm., 111., (1920), 127 N. E. 641, 6 W. C. L. J. 274; Morris v. Yough Coal & Supply Co., Pa., (1920), 109 Atl. 914, 6 W. C. L. J. 210; Rockford Cabinet Co. v. Indus. Comm., 111. , (1920), 129 N. E. 142, 7 W. C. L. J. 280; McDonald v. Employer's Liah.. Assur. Corp. Me. , (-1921), 112 Atl. 719; Richardson Sand Co. v. Indus. Comm., 111. , (1921), 129 N. E. 751; Morgan v. Butte Cent. Mining & Mill Co. Mont. , (1920), 194 Pac. 496. 63. Mulraney v. Brooklyn Rapid Transit Co., 180 N. Y. S. 654, 5 W. C. L. J. 731; 190 App. Div. 774; Wilkes v. Rome Wire Co., 184 App. Div. 626, 172 N. Y. S. 406, 3 W. C. L. J. 174; Dazy v. Apponaug Co., 36 R. I. 81, 4 N. C. C. A. 594, 89 Atl. 160. 64. Mulraney v. Brooklyn Rapid Transit Co., 190 App. Div. 774, 180 N. Y. S. 654, 5 W. C. L. J. 731; Newton v. Rhode Island Co.. R. I. , 899 367 WORKMEN'S COMPENSATION LAW But this does not preclude a consideration of a minor's wagt, increase 1 , as this rule relates only to accertaining who are depen- dents. 6B Under the Illinois Act, illegitimate children are not included within the protection of the "Workmen's compensation act, Section 7 providing for payment of compensation for injury resulting in death, if the 1 employee leaves children or other lineal heirs, whom he is under legal obligation to support. The Supreme 1 Court of Illinois follows the common law rule which is that parents are un- der no legal obligation to support an illegitimate child. 66 A minor employee 's parents and their family are dependent upon him, if contributions from his earnings are reasonably necessary to support the family ; otherwise not. 67 The decisions on the question of illegitimate children are not in accord. The Connecticut Supreme Court holds that illegitimate children living with and dependent upon deceased for their sup- port, are such dependents as are entitled to compensation. 68 Minor children in the custody of a divorced wife, where the de- cree of divorce made no provision for the support of the/ children by the father and he 1 furnished the children no support after a brief space of time, except gifts of money and clothing when he chose to do so, were held not to be total dependents under the Maryland Workmen's Compensation Law, Sec. 35. 69 (1919), 105 Atl. 363, 3 W. C. L. J. 527; Birmingham v. Westinghouse Electric & Mfg. Co., 167 N. Y. S. 520, 180 App. Div. 48, 1 W. C. L. J. 241, 16 N. C. C. A. 179; In re Hess, 191 App. Div. 667, 181 N. Y. S. 674, (1920), 6 W. C. L. J. 75; Mac Donald v. Employers' Liab. Assur. Corp., Me. , (1921), 112 Atl. 719. 65. Kilberg v. Vitch, 171 App. Div. 89, 156 N. Y. Supp. 971. 66. Murrell v. Indus. Comm., 291. 111. 334, 126 N. E. 189; 5 W. C. L. J. 673; Scott v. Indep. Ice Co., 135 Md. 343', (1919), 109 Atl. 117, 5 W. C. L. J. 702. 67. In re Stewart, Ind. App., (1920), 126 N. E. 42, 5 W. C. L. J. 514; Moll v. City Bakery, 199 Mich. 670,165 N. W. 649, 1 W. C. L. J. 391, 16 N. C. C. A. 186. 68. Piccinim v. Conn. Light and Power Co., 93 Conn. 423, (1919), 106 Atl. 330, 4 W. C. L. J. 18. Note: For question of Illegitimate Children see title, "What Children may be Dependents," 374 post. 69. State Industrial Accident Commission v. Downton, 135 Md. App. 412, 109 Atl. 63. 5 W. C. L. J. 709. 900 DEPENDENCY. 367 It has been held that a half brother of a deceased employee, who was living with his mother, but dependent upon and receiving sup- port from the deceased, was an actual dependent within the mean- ing of the Massachusetts Act; and the fact that deceased gave the money to his stepmother for the support of his half brother was immaterial. T0 The Texas Act makes dependent brothers of a deceased employ- ee "beneficiaries" within the 1 meaning of Section 8a of the Act.' 1 It has been held, under the New York Act, that where a father contributed twelve dollars to a family fund of thirty dollars per week, he cannot be said to be dependent upon a son who contrib- uted a like sum, the dependency upon the son being among the other members of the family. 78 "The deceased employee having left a minor daughter, the claimant, his sister, is not the next of kin and can have no claim for compensation unless she was a member of his family partly dependent for support upon his earnings at the time of his death. Kelly's Case, 222 Mass. 538, 111 N. E. 395; St. 1911 c. 751, pt. 5, Sec. 2. While the claimant, her minor son and the employee lived together in the house formerly owned by the mother of the sister and brother and who died intestate, the claimant is shown t^have had the exclusive management of the household affairs. And she and her son undoubtedly constituted a family. Murphy's Case, 224 Mass. 592, 113 N. E. 283. It is uncontroverted that 'nothing was ever said about board.' But even so, it is plain on the record that the weekly payments of the employee contributed for the support of the household whenever he could obtain employ- ment, and the purchase of some incidental household furnishings and supplies as we'll as his cultivation of the garden did not make him head of the family of which his sister and his nephew could 70. O'Flynn's Case (1919), 232 Mass. 582, 122 N. E. 767, 4 W. C. L. J. 105; Walz v. Holbrook, Cabot & Rollins Corp., 170 App. Div. 6, 155 N. Y. Supp. 703. 71. American Indemnity Co. v. Zyloni, Tex. Civ. App., (1919), 212 S. W. 183, 4 W. C. L. J. 315; Vaughan v S. 8. Ins. Co., Tex. , 206 S. W. 920; 3 W. C. L. J. 386. 72. Klein v. Brooklyn Heights R. Co., 188 App. Div. 509, 177 N. Y. 8. 67, (1919), 4 W. C. L. J. 432. 901 367 WORKMEN'S COMPENSATION LAW be deemed members. Cowden's Case, 225 Mass. 66, 113 N. E. 1036. " 7S "A claim of dependency is not to be defeated by mere proof that the claimant can by the exercise of his best endeavors sup- port himself and family by his own unaided efforts. Howells v. Vivian, 85 L. T. R. 529, 530 ; Powers v. Hotel Bond Co., 89 Conn. 143, 152, 93 Atl. 245. But as it is no purpose of the law to give aid and comfort to slackers in respect of their obligations as members of society, so it is that a claim of dependency will meet defeat if it appear that the claimant by the expenditure of such effort as, under all circumstances, ought fairly and reasonably to be expected of him is of ability to be self and family support- ing according to the proper measure of such support." 74 In discussing the question of the beneficiaries and the distribu- tion of compensation under the Texas Act, the Supreme Court of Texas said: "In fixing the compensation to be paid for injury to an employee of a subscribing employer, sustained in the course of his employment and resulting in death, the Workmen's Com- pensation Act of 1913 (Acts 33d Leg. c. 179 (Vernon's Sayles' Ann. Civ. St. 1914, arts. 5246h-5246zzzz) omitted any express designation of the beneficiaries entitled to receive the compen- sation. It merely declared (section 8, art. 5246kk) that it should be paid to 'the legal beneficiary' of the deceased employee, with a proviso in the following language : ' Provided, that the compen- sation herein provided for shall be distributed according to the law providing for the distribution of other property of deceas- ed.' The question here is, how shall the beneficiaries in such cases be determined, by the law of descent and distribution, or the law governing the recovery of damages for negligent or wrong- ful injury resulting in death the death injury statute, article 4698? The act was amended in this particular in 1917, Acts 35th Leg. c. 103, Section 8a (Vernon's Ann. Civ. St. Supp. 1918, art. 5246 15), by expressly naming, the beneficiaries. This case 73. In re Murphy, 230 Mass. 99, 117 N. E. 794, 1 W. C. L. J. 211. 74. Gherardi v. Connecticut Co., 92 Conn. 454, 103 Atl. 668, 2 W. C. L. J. 212; Simmons v. White, 80 L. T. R. 344, 1 W. C. C. 89, 15 T. L. Rep. 263, 68 L. J. Q. B. 507, 47 Wkly. Rep. 513. 902 DEPENDENCY. 367 arises under the original act. The solution of the question is found in the proviso. It says that the compensation shall be dis- tributed 'according to the law providing for the distribution of other property of the deceased.' Interpretation can add nothing to the clearness of this language. It means the law governing the distribution of the decedent's property, not a law authorizing the recovery of damages by certain kindred as their property. The only law we have regulating the distribution of the property of an intestate decedent is that comprised by our statutes of descent and distribution. That is plainly the law referred to. It is, in effect, made a part of the act." 75 Under the rule that dependency is to be determined on the facts as they existed at the time of the accident, a father living with and dependent upon his son for support at the time of the fatal accident to the son is to be deemed his dependent in preference to a wife married after the accident or a posthumous child with which the wife was pregnant from deceased prior to their marri- age. 76 But New York decisions hold to the contrary. 77 Compensation goes to those dependent upon the deceased workman, and not those supported by him, who would not other- wise come within the statutory definition of dependents. 78 "The New York Act does not limit the right to an award to those dependents who had the legal right to compel the deceased to furnish them support, but it applies as well to cases where the 75. Vaughan v. Southern Surety Ins. Co., , Tex. , 20i> S. W. 920, 3 W. C. L. J. 386. 76. Kuetbach v. Indus. Comm., 166 W-is. 378, 165 N. W. 302, 1 W. C. L. J. 461, 15 N. C. C. A. 842. 77. Crockett v. International R. Co., 176 App. Div. 45, 162 N. Y. Supp. 357, 15 N. C. C. A. 843; holding that the dependency of wife and children are not dependent upon the facts as they existed at time of injury and a wife marrying an injured workman is entitled to compensation for his death, not on the ground of her dependency but on the ground of her wifehood. 78. In re Derinza, In re Pucci, 229 Mass. 435, 118 N. E. 942, 1 W. C. L. J. 795, Id N. C. C. A. 87. 903 367 WORKMEN'S COMPENSATION LAW person was dependent for support upon the voluntary contribu- tions of the deceased." 79 "The test of dependency is not whether the petitioner, by re- ducing his expenses below a standard suitable to his condition in life, could secure a subsistence for his family without the contri- butions of the deceased son, but whether such contributions were needed to provide the family with the ordinary necessaries of life suitable for persons in their class and position." 80 Lord Halsbury in criticising the above definition said: "I de- cline to assume that the legislature has contemplated a particular 'standard', * * * dependent upon * * * the ordinary course of expenditure in the neighborhood and in the class to which the man lived * * * what the family was in fact earn- ing, what the family was in fact spending for its maintenance, as a family, seems to be the only thing which a judge could prop- erly regard." 81 This rule seems to put a premium on riotous living. ""What the family was in fact earning, what the family was in fact spend- ing," taken as a criterion, would give more to the family if they were extravagant to the extent of spending all income, whether necessary or not, than it would give if the family lived economi- cally, frugally, and husbanded their resources. "What the family was in fact spending, ' ' may bring persons within the role of dependents who would not be such were it not for their extrav- agance, and may keep others out of that class because of their frugality and industry. It is thought that the better plan is to adopt a standard fixed by the station in life of the persons claim- ing to be dependents at the time of the accident. This way af- fords a uniform guide, which will not work hardship on anyone, which will not be generous with the extravagant, nor miserly with the frugal. 79. Walz v. Holbrook, Cabot & Rollins Corp., 170 App. Div. 6, 13 N. C. C. A. 464, 165 N. Y. S. 703. 80. Dazy v. Apponaug Co., 36 R. I. 81, 4 N. C. C. A. 594, 89 Atl. 160. 81. Maine Colliery Co. v. Davies, (1900), A. C. 358, 80 L. T. 674, 16 T. L. Rep. 460, 1 W. C. C. 92, 6 N. C. C. A. 241; French v. Underwood, 19 T. L. Rep. 416, 5 W. C. C. 119, 6 N. C. C. A. 242. 904 DEPENDENCY. 367 The question of dependency is determined in most jurisdictions upon the law as it existed at the time of the accident, but the Minnesota Supreme Court holds that this questions depends upon the law as it existed at the time of the death." Under the New York Act, a mother living with and supported by her husband is not a dependent upon her minor daughter, be- cause of the fact that the daughter turned over part of her wages to the mother. 88 To sustain an award to parents for the death of a son, there must be a showing made of actual support by the son during the year prior to the accident. 84 Parents are dependents under the Illinois act if the son con- tributed to their support within four years, and they need not have been actually dependent upon him. 89 And contributions by the minor need not exceed the expenses of the parents in behalf of the minor. 86 Under the Illinois Act a wife is a dependent of her deceased husband, if he was under a legal obligation to support her, even though she was not living with him and not dependent upon him." 82. State ex rel. Carlson v. Dist. Court, 131 Minn. 96, 154 N. W. 661; State ex rel. Globe Indemnity Co. v. District Court, 132 Minn. 249, 156 N. W. 120; Hansen v. Flinn O'Rourke Co., Inc., 183 N. Y. S. 213, 6 W. C. L. J. 476. 83. Prey v. McLaughlin Bros. Co., 187 App. Div. 824. 175 N. Y. Supp. 873, (1919), 4 W. C. L. J. 133; Birmingham v. Westinghoucr Electric A Mfg. Co., 180 App. Div. 48, 167 N. Y. Supp. 520, 1 W. C. L. J. 241, 16 N. C. C. A. 179. 84. Prof eta v. Retsof Mining Co., 188 App. Div. 383, 177 N. Y. Supp. 60, (1919), 4 W. C.L. J. 444. 85. Humphrey v. Indus. Comm., 285 111. 372, 120 N. E 816, 3 W. C. L. J. 102. 86. Metal Stamping Corp. v. Indus. Comm., 285 III. 528. 121 N. E. 258, 3. W. C. L. J. 258; In re Peters, 64 Ind. App. -- 116 N. E. 848, 16 N. C. C. A. 183. 87. Smith-Lohr Coal Mining Co. v. Indup. Comm., 286 111. 34. 121 N. E. 231, 3 W. C. L. J. 250; American Milling Co. v. Indus. Bd., 279 111. 660. 117 N. E. 147, 16 N. C. C. A. 86; Ooelitz Co. v. Indus. Bd., 278 111. 164. 115 N. E. 855. 16 N. C. C. A. 80. 905 367 WORKMEN'S COMPENSATION LAW The word "widow," as used in the Washington Act, is to be given its ordinary meaning, which is, a legally married woman whose husband is dead. Therefore an honest but erroneous be- lief that the claimant was married to deceased will not entitle her to compensation as his dependent. 88 But the Supreme Court of California arrived at an opposite conclusion in construing the act of that state. 89 In discussing the question of dependency the Supreme Court of Delaware said: "Persons in the enumerated classes may be wholly or partially dependent on the employee and come within contemplation of the provisions of this section if the dependency existed at the time of the injury. The question arises what may be considered dependency? The term has frequently been de- fined by the courts of this country and of England and we think it not possible to state a complete and exhaustive definition of the word as used in Workmen's Compensation Laws; but the definition stated by the court in the case In re Hora, vol. 1, No. 7, Bui. Ohio Industrial Commission, 173, is as satisfactory as any we have seen. The court in that case defined dependency to be 'dependent for the ordinary necessities of life for a person of that class and position in life, taking into account the financial and social position of the recipient.' It is not sufficient that the con- tributions of the employee were used in paying the living ex- penses of the claimant, but it must be shown that the contribu- tions of the employee were relied upon by the dependent for his or her means of living judging this by . the class and position of life of the dependent. Powers v. Hotel Bond Co., 89 Conn. 143, 93 Atl. 245. The fact that a man is by his best efforts able to pro- vide his family with the bare necessities of life would not pre- vent him from being a dependent under our statute for the words of the statute convey a much broader meaning than this. On the other hand, the mere fact that contributions had been made by 88. Meton v. State Ind. Ins. Dept, 104 Wash. 652, 177 Pac. 696, 3 W. C. L. J. 541. 89. Tennescal Rock Co. v. Ind. Ace. Comm., Cal. , (1919), 182 Pac. 447, 4 W. C. L. J. 469. 906 DEPENDENCY. 367 the deceased workman to a claimant who had the health aud ability to support himself and family by his own reasonable ef- forts but did not do so, would not constitute the claimant a de- pendent, for it was not the intent of the Legislature to maintain in idleness at the expense of the employer those who are able and have the capacity to provide for themselves and have no appeal- ing reason for not doing so. The condition of health, need for medicine and medical attention are subjects proper for considera- tion in determining the question of dependency." 90 A statute which specifies who shall be conclusively presumed to be dependent but makes no provision for sisters or nieces, their dependency must be determined in accordance with the facts at the time of the injury. Therefore a sister who was sup- ported by her brother under an agreement that she keep house for him, although she was a competent stenographer, but was precluded from that position by the condition of her health, was totally dependent upon him, and cannot be deprived of compen- sation on the ground that she could support herself when she was, as a matter of fact, supported by him. 91 Actual contributions to married daughters were, under the Illinois act of 1913, sufficient to entitle them to compensation on the death of the father, even though they were not dependent up- on him for support. This provision has been changed so as to make dependency a condition of compensation. Laws of 1917, p. 490. 9t Also, support of an incapacitated daughter, 22 years of age, within four years prior to an accident, entitles the daughter to compensation. The provision in regard to the four years was eliminated by amendment in 1919. 93 80. Benjamin P. Shaw Co. v. Palmatory, Del . (1919), 105 Atl. 417, 3 W. C L. J. 424; Powers v. Hotel Bond Co., 83 Conn.. 143, 93 Atl. 245; Johansen v. Linde & Griffith Co., 39 N. J. L. J. 143, 13 N. C. C. A. 318. 91. In re Lanman, 64 Ind. App. , 117 N. E. 671, 1 W. C. L. J. 185. 92. Peabody Coal Co. v. Indus. Comm. 281 111. 579, 117 N. E. 983, 1 W. C. L. J. 524, 16 N. C. C. A. 143. 93. Mechanics Furniture Co. v. Indus Bd. of 111. 281 111. 530, 117 N. E. 986, I W. C. L. J. 529, 15 N. C. C. A. 292. 907 367 WORKMEN'S COMPENSATION LAW It has been held by the Supreme Court of Connecticut that a married daughter whose father had made contributions to her, but had not done so for 6 months prior to the date of injury, can- not be said to be dependent on her father when she was amply provided for otherwise. 94 Under the Elnglish Act a grown daughter, capable of earning her own living, may be a dependent, if she was actually depend- ing upon and receiving support from her father, for whom she was keeping house. 95 Under the New York Act, limiting dependents to the widow and next of kin, it has been held that a mother and half brother and sisters of deceased, who were partially dependent upon de- ceased, were entitled to compensation. 96 A niece who stayed with an uncle and was furnished board and clothing while she was going to school, was held not to be a de- pendent, within the meaning of the Indiana Act. 97 Under the Nebraska Act, "dependency is not based solely up- on a present legal obligation to support," and the question is not determined by the fact that a decedent had or had not contrib- uted to the support, of a parent, before the date of the accident. The fact that the mother had $300 or $400 in the bank drawing interest, and her son was not living with or supporting her at the time of his death, does not bar her right to compensation. If the mother needs the support of her son, is legally entitled to it, and there is probability that she will receive it, she is a dependent. 98 Under the Kansas Act, the court will not inquire into the do- mestic arrangements of a family or the necessity of reliance upon the decedent's contributions, but if the family is actually dependent 94. Blanton v. Wheeler & Howes Co., 91 Conn. 226, 99 Atl. 494, 16 N. C. C. A. 145. 95. Simms v. Lilleshall Colliery Co. Ltd., 1917 W. C. & Ins. Rep. 218, 16 N. C. C. A. 147. 96. Bylow v. St. Regis Paper Co., 179 App. Div. 556, 166 N. Y. Supp. 874, 16 N. C. C. A. 152; Mulhall v. Fallen, 176 Mass. 266, 57 N. E. 386, 54 L. R. A. 934, 79 Am. St. Rep. 309. 97. In re Lanman, 64 Ind. App., 117 N. E. 671, 16 N. C. C. A. 156. 98. Parson v. Murphy, 101 Neb. 542, 163 N. W. 847, 16 N. C. C. A. 174. 908 DEPENDENCY. | 36? upon the assistance of decedent it is sufficient to entitle them to the benefits provided.* 9 Dependency does not depend upon the fact that contributions take forms other than that of money, or that the contributions are used for purchasing of articles of furniture and the like, instead of other purposes. 1 Under the Michigan Act, making dependency a question of fact, as under the Minnesota and British Acts which seek to compensate the dependents for the loss suffered, it was held, that where the expenses incurred on behalf of the son were equal to or in excess of his contributions, a case of dependency was not established.* A person need not be reduced to absolute want or be declared a pauper in order to come within the provisions of the compensa- tion act. So the fact that a mother had some small means and other sources of revenue at the time of her son's death did not preclude her from being partially dependent. 8 An unmarried sister may be a dependent of deceased, if she was actually supported by him under conditions necessitating his support. As where an unmarried sister who became pregnant appealed to her brother for assistance, and he contributed to her support during pregnancy and after the birth of the child until the time of his death, it was held, in view of the fact that she would need his assistance longer, and that she was capable of working, that she was entitled to compensation as one partially dependent. 4 "Where a deceased employee had been living with his half brother and turned his wages into the family fund, from which he, his half brother and the latter 's wife and children were supported, the 99. Fennimore v. Pittsburg Scammon Coal Co., 100 Kan. 372, 164 Pac. 265, 16 N. C. C. A. 176. 1. In re McMahon, 229 Mass. 48, 118 N. E. 189, *6 N. C. C. A. 184. 2. Moll v. City Bakery, 199 Mich. 670, 165 N. W. 649, 16 N. C. C. A. 186, 1 W. C. L. J. 391, 3. Rhyner v. Hueber Bldg. Co., 171 App. Div. 56, 156 N. Y. 8. 903, 13 N. C. C. A. 317; Walz v. Holbrook, Cabot and Rollins Corp, 170 N. Y. App. Dlv. 6, 155 N. Y. S. 703. 4. Jackson v. Indus. Comm. of WiB., 164 Wis. 94, 159 N. W. 561, 13 N. C. C. A. 458. 909 9 367 WORKMEN'S COMPENSATION LAW court held that the employee was a member of the family of the claimant or half brother who was partially dependent upon his wages for support, but as the employee's father survived and the statute provides that dependents shall mean members of the em- ployee's family or next of kin who were totally or partially de- pendent upon the employee at the time of the injury, the question arose whether claimant came within this definition. On this point the court, after citing Daly v. New Jersey Steel & Iron Co., 155 Mass. 1, 5, 15 Am. Neg. Gas. 586n (1891) ; Welch v. New York, N. H. & H. R. R., 176 Mass. 393, (1900) ; and In re Herrick's Case, 217 Mass. Ill, 4 N. C. C. A. 554 (1914), continued: "It is plain from not only these decisions but the wording of the statute that, while dependency determines the right to compensa- tion, it is also necessary that the dependent should be in the same degree of kinship as the statutory heir or heirs. It is true that the object of the statute is to provide in place of the wages of the deceased employee the means of sustenance for his widow and other dependents. In re Cripp's Case, 216 Mass. 586, 589 (4. N. C. C. A. 546n) (1914). And if dependents are to be ascertained solely from tbose nearest in blood, it may happen that where a father and mother survive who are not dependent a sister wholly depen- dent must be denied relief. Or, if the employee leaves no widow but only children who are amply provided for by marriage or otherwise are self-supporting, and an indigent mother wholly de- pendent upon him, the mother is not within the statute. But the words 'next of kin' as used in our laws uniformly refer to those who are nearest in degree by consanguinity. Swasey v. Jaques, 114 Mass. 135 (1887). It must be assumed that this term as used in the statute was intended by the legislature to have this well- recognized meaning, and we cannot construe 'next of kin' as being the equivalent of dependent next of kindred which would embrace all dependents without regard to the degree. * * * The claimant cites Caliendo's Case, 219 Mass. 498 (1914), where the mother and sister of the employee shared equally in the award, but the question whether they were in the same degree of kinship was not raised or considered." The decree affirming the award of compensation was reversed and the claim disallowed. 6 6. In re Kelley's Case, 222 Mass. 538, 111 N. E. 395, 13 N. C. C. A. 459. 910 DEPENDENCY. 367 The Michigan Court in defining dependency stated that: "The Massachusetts act (chapter 751. St. 1911) contains the same lan- guage as to dependency as does our act ; it also contains a provision similar to the provision found in our act in section 5443. (.'. L. 1915. In Derinza's Case, 229 Mass. 435, 118 N. E. 942, the Supreme Judicial Court of that state had under consideration the question of dependency of a wife living apart from her husband, and it was there said: "The terms of our act award compensation to those dependent upon the 'earnings' of the deceased employee, and not to those supported by him, differing thus from the statutes of some other jurisdictions. See for example, Crookston Lumber Co. v. District Court, 131 Minn. 27. Therefore in the case at bar the finding- can be supported only if the wife could be found to have been totally dependent upon the earnings of her deceased husband, and not upon investments of his property. This is so, giving to 'earn- ings' the broadest meaning of which it reasonably is susceptible. Jenks v. Dyer, 102 Mass. 235. Chester v. McDonald, 1S5 Mass. 54. The terms of part 2, sections 7 and 12, the latter to the effect that 'no savings or insurance of the injured employee * shall be taken into consideration in determining the compensation to be paid' under the act, do not modify and, are not in any re- spect in conflict with the explict and unequivocal provisions of part 2, section 6, and part 5, section 2, to the effect that depend ency in case of death of an employee shall be ascertained solely with reference to the fact whether the claimants were wholly or partly dependent upon the earnings of the employee for support at the time of the injury. "The language of our act expressly states 'dependent upon his earnings for support.' That the earnings of an employee are distinct and different from rent he receives for a building is patent. The Legislature of this state saw fit to use the precise language of the Massachusetts act and to purposely use the word 'earnings.' We may not eliminate it from our consideration, nor modify it by some other inapplicable portion of the act. The section under consideration deals exclusively with the question of dependency and is quite complete in itself."* 6. Bolozina v. Castile Mining Co., Mich. , (1920), 178 N W. 57, 6 911 368 WORKMEN'S COMPENSATION LAW The right of dependents of a deceased employee to receive com- pensation, is not affected by the fact that the death of the employee was caused by the actionable negligence of a third person, not connected with the employment. 7 368. Presumptions Relating to Dependency. Under the English Act matters of dependency are questions of fact, while under the majority of the American Acts certain classes of per- sons are conclusively presumed to be dependent. Thus, a wife* is conclusively presumed to be dependent upon a husband with whom she was living at the time of the accident. The same pre- sumption applies to children under the statutory age limit, who were living with the 1 deceased. Children, above the age limit who are mentally or physically incapacitated from earning a living are generally presumed to be dependent upon a deceased parent with whom they were living at the time of the accident. A like presumption has been accorded to husbands who were living with their wives at the time of the fatal accident, although not so universally as the presumption in favor of wives. As to the presumption of the existence of dependents who are not claiming compensation, it was held in Illinois that where ?hs alien parents of a deceased employee, respectively 60 and 40 years old, were seen at their residence in Russian Poland in Au- gust, 1915, the presumption of continuance of life is insufficient to establish the existence of beneficiaries 26 months later; that country having in the meantime been overrun by hostile armies and devastated and robbed of the means of sustenance, the 1 fact of the existence of the beneficiary at the time of the hearing must be affirmatively shown by the applicant. 8 The fact that the statute provides that a husband or wife shall be conclusively presumed to be dependent each upon the other, does W. C. L. J. 327; Finn v. Detroit Ry., 190 Mich. 112', 155 N. W. 721, L. R. A. 1916C, 1142. 7. Ferraro v. La Belle Iron Works, Ohio Ind. Comm. Dec. 9 N. C. C. A. 596. 8. National Zinc Co. v. Indus. Comm., 292 111. 598, 127 N. E. 135, 6 W. C. L. J. 21. 912 DEPENDENCY. 368 not prevent either of them from being dependent upon another as matter of fact, and recovering compensation by reason of such dependency." Where a minor son, at the time of an agreement for compen- sation, was conclusively presumed to be dependent in accordance with the statutory provision, later became self supporting, the court said: "Such dependency was created by the statute as of the time of the injury, and the amount payable, within defined limits, was controlled by the statute, St. 1911, c. 751, part 2, Sec. 6, 7, as amended by St. 1914, c. 708, Sec. 2, 3. Where dependency, as in this case, is not to be determined as a question of fact, but ex- ists by virtue of the statute, it is not affected by the wealth or poverty of the dependent. Bott's Case, 230 Mass. 152, 119 N. E 755; Gavaghan's Case, 232 Mass. 212, 122 N. E. 298. In Bott's Case, it was held that the remarriage of the dependent widow to one from whom she received ample support did not terminate hei right to compensation. This is decisive. There is no distinction between a widow conclusively deemed to be dependent, and a son as to whom the same conclusive statutory presumption exists. " J0 Where a husband and wife are living apart, after an interlocu- tory decree of divorce in favor of the wife, with no provision for support, the wife is not entitled to the presumption of total de- pendency created by the California Workman's Compensation Act, Sec. 14, Subd. a (I). 11 But a wife living apart from her hus- band, under a decree awarding her separate maintenance, is with- in the section of the statute, conclusively presuming a wife living with her husband, or for whose support the husband is legally liable, to be dependent upon such husband for support. 12 9. Mahoney v. Gamble-Desmond Co., 90 Conn. 255, 96 Atl. 1025; Me- donald v. Great Atlantic and Pacific Tea Co., Conn. , (1920), 111 AIL 65, 6 W. C. L. J. 525. 10. Cronin's Case, 5>33 Maes. 243, (1919), 124 N. E. 669, 5 W. C. L. J 80. See Ohio Act 1921 Am. 1465-82. 11. London Guarantee & Accident Co. Ltd. v. Indus. Ace. Comm., - Cal., (1919), 184 Pac. 864. 12. Continental Casualty Co. v. Pillabury, Cal. , (1919). 184 Pac. 65C, 5 W. C. L. J. 6. 913 W. C.S8 368 WORKMEN'S COMPENSATION LAW Under the California Act a minor daughter under the age of 18 deserted by her father and living apart from him for a jus- tifiable cause, is not conclusively presumed to be wholly dependent upon him for support, within the meaning of the statute. The court said: "The dependent is not aided by St. 1919, c. 204, passed since the death of her father. As a result of this amend- ment, total dependency as a minor under the age of 18 and above the age of 15, exists only where the minor is living with the par- ent at the time of the parent's death; while as to minors under the age of 16, there is such dependency not only where the minor is so living, but also where the parent was at the time of his death legally bound to support the 1 minor although living apart from him. It follows that the dependency created by the statute was not total, but rightly was determined as a question of fact and the decree of the superior court must be affirmed." 13 It is held under the New York Act that there is no presumption that the alien non resident parents of an employee 32 years of age are dependent upon him. The 1 fact of dependency must be proved. 14 Under the Minnesota Act, children under 16 years or age; are conclusively presumed to be dependents, while those between six- ten and eighteen are prima facie presumed to be dependent. Where the deceased was the mother of several children unler 16 years of age, and the father had for several years prior to her death deserted the family, such children are to be regarded as or- phans coming within subdivision 10, sec. 5c, 209, Laws 1915 (Gen. Stat. Supp. 1917, Sec. 8208) for the purpose of fixing the amount to be paid under the compensation Act. 15 . A daughter, by a former wife of deceased, over 18 years of age 1 , married and living with her blind husband, she being totally blind, and therefore physically incapacitated from earning, claimed her share in the death benefits. The court citing the following statute : 13. Moran's Case, Mass. . (19;, 125 N. E. 157, 5 W. C. L. J. 249. 14. Pifumer v. Rheinstein & Haas, Inc., 187 App. Div. 821, 175 N. Y. Supp. 848, 5 W. C. L. J. 136. 15. State ex rel. Radisson- Hotel v. District Court of Hennepin County, 143 Minn. 144, 172 N. W. 897, 4 W. C. L. J. 418. 914 DEPENDENCY. 368 < * * Provided, that in the event of the death of an em- ployee who has at the time of his death a living child or children by a former wife or husband, under the age of eighteen years (or over said age, but physically or mentally incapacitated from earn- ing), said chijd, or children shall be conclusively presumed to be wholly dependent for support upon such deceased employee, and the death benefit shall be divided between the surviving wife or husband and all the children of the deceased employee in equal shares, the surviving wife or husband taking the same share as a child" then continued: "In the case of a child of a former wife or husband the Legislature considers neither the wealth, poverty, reidence nor legal rights to support of that child, and concerns itself only with the question: Is the child under eighteen years of age, and if over, is he or she 'physically or mentally incapaci- tated from earning. If under eighteen years of age or physically or mentally incapacitated from earning, the child is conclusively presumed by the terms of the act to be wholly dependent for sup- port on the deceased employee. Upon the agreed facts the child is physically incapacitated from earning ; it follows that the daugh- ter Anna F. Mason is entitled to an equal share in the death bene- fit with the surviving widow. St. 1911, c. 751, part 2, Sec. 7 (c), as amended by St. 1914, c. 708, Sec. 3 (c)." ie It is held under the Massachusetts Act, that an alien's widow, residing in a foreign country, is not entitled to the benefit of the conclusive presumption of dependency; the question being one of fact." In a Wisconsin case the court said: "Having properly held that she was living with her husband at the time of his death, then section 2394-10, subd. 3 (a), establishes a conclusive pre- sumption that she was solely and wholly dependent upon him for support. That she had property of her own, even were the 16. Gavaghan's Case, 232 Mass. 212, (1919), 122 N. E. 298. 3 W. C. L. J. 643; Botts Case, 230 Mass. 152, 119 N. E. 765; Holmberg's Case, 231 Mass. 14, 120 N. E. 353; Coakley v. Co^kley, 216 Mass. 71, 102 N. E. S>30. Ann. Cas. 1915A, 867, 4 N. C. C. A. 608. 17. Perotti's Case, 233, Mass, 297, (1919), 123 N. E. 776, 4 W. C. L. J. 391; Kalcic v. Newport Mining Co., Mich. , 163 N. W. 962, A. 1 W. C. C. L. J. 948. 915 368 WORKMEN'S COMPENSATION LAW income therefrom sufficient to, and for a time actually had been alone used for her support, would be entirely immaterial." 18 The Michigan Act 'provides that a wife and husband living to- gether and children under 16, or olde/r if incapacitated, are con- clusively presumed to be totally dependent. This is true even though the wife from time to time lives apart from the hus- band in order to work and support herself. These facts are im- material if they are living together at the time of the fatal acci- dent. 10 Illegitimate children of a decedent are not conclusively pre- sumed to be dependent on him, within Maine Rev. Stat. c. 50, Sec. 1, Subd. 8 (c) under the rule, "Expressio unius est exclusio alterius." 20 Under the Indiana Act, a child 13 years of age not living with her father and to whose support he had not contributed for several years, though ordered to do so under a divorce decree, is not con- clusively presumed to be dependent upon him for support, and since the child was living with an aunt, and the deceased with his second wife, who was not the mother of the child, no com- pensation was allowed the latter. 21 Where a husband and wife are living apart and the husband sends money for her support and maintenance 1 of the home, there is a sufficient compliance with the provision of the statute providing that the wife shall be conclusively presumed to be totally dependent upon her husband, with whom she lives at the time of his death. 22 Where a woman's husband is living and capable of* supporting 18. Bell City Malleable Iron Co. v. Indus. Comm. of Wis., 170 Wis. 293, (1919), 174 N. W. 899, 5 W. C. L. J. 333; Holmberg's Case, 231 Mass. 144, 120 N. E. 353, 2 W. C. L.J. 899. 19. Doherty v. Grosse Isle Twp. 205 Mich. 592, 172 N. W. 596, 4 W. C. L. J. 222; East St. Louis Bd. of Education v. Indus. Comm., 111., (1921), 131 N. E. 123. 20. Scott's Case, 117 Me. 436, 104 Atl. 794, 3 W. C. L. J. 49 . 21. Schwartz v. Gerding & Aumann Bros., Ind. App. , 121 N. E. 89, 3 W. C. L. J. 282; In re Bentley, 217 Mass. 79, 104 N. E. 432, 4 N. C. C. C. A. 559. 22. Muncie Foundry & Machine Co. v. Coffee, 64 Ind. App., 117 N. E. 524, 1 W. C. L. J. 78, 16 N. C. C. A. 82. 916 DEPENDENCY. 368 her, there is no presumption that she is dependent upon her married son, even though he makes contributions to her." Where deceased's wife is an alien, living apart from him and in a foreign country, she is not entitled to the benefit of a pre- sumption that a wife living apart from her husband by agreement, to allow the husband to earn wages for support, is considered living with the husband, for the purpose of obtaining the benefit of the presumption, her dependency being a question of fact. 2 * The Supreme Court of Minnesota, discussing in a recent case the question of conclusive presumption of dependency, said: "The Legislature in declaring that a particular fact shall be conclusively presumed does not establish a presumption in the ordinary sense of the term, but rather a rule of law to the effect that in the case specified the non-existence of the fact presumed in immaterial. 9 Ency. of Ev. 884; 2 Wigmore, Ev. Sec. 1353. The Legislature can make a presumption conclusive unless such presumption would cut off or impair some right given and protected by the Constitution. No provision of the Constitution is cited which takes from the Legislature the power to define and prescribe the duties of the husband to his wife and children and the rights to which the wife shall be entitled in consequence of the existence of the marri- age status: and we are satisfied that the Legislature had power to provide that for the purposes of the compensation law the. wife 'shall be conclusively presumed to be wholly dependent' upon her husband regardless of whether she had or had not been supported by him in his lifetime. The duty to support her rested upon him as a continuing obligation which could have been en- forced at any time. The Legislature could recognise the existence of this obligation, and in the plenitude of its power could make such reasonable provision for the wife under the compensation 23. Birmingham v. Westinghouse Electric & Mfg. Co., 167 N. Y. S. 620, 1 W. C. L. J. 241, 16 N. C. C. A. 179. 24. In re McDonald, 229 Mass. 445, 118 N. E. 949, 1 W. C. L. J. 808, 16 N. C. C. A. 87-214; In re Derinza, 229 Mass. 435, 118 N. E. 942, 1 W. C. L. J. 795, 16 N. C. C. A. 87; In re Mooradjlan, 229 Mass. 521, 118 N. E. 951, 1 W. C. L. J. 812, 16 N. C. C. A. 215, 920; Kalclc r. Newport Mining Co., 197 Mich. 364, 163 N. W. 962, 16 N. C. C. A. 211; In re Gorskl, 227 Mass. 456, 116 N. E. 811, 16 N. C. C. A. 217. 917 368 WORKMEN'S COMPENSATION LAW law as it deemed just and proper. Furthermore even if the constitutional guaranties would be infringed by making the pre- sumption conclusive in other cases, they would not be infringed by making it conclusive under the compensation law for the provisions of that law are obligatory only upon those who elect to become subject to it, and those who voluntarily assume the liabilities imposed by the law in order to secure the benefits confer red by it have been deprived of no constitutional right. Matheson v. Minneapolis Street Ry. Go., 126 Minn. 286, 148 N. W. 71, L. E, A. 1916D, 412; State ex rel. v. District Court, 166 N. W. 185. This same provision was involved in State ex rel. v. District Court, 137 Minn. 283 163 N. W. 509, but its validity was not challenged. Similar provisions are found in the statutes of sev- eral states and their validity seems not to have been questioned. Nelson's Case, 217 Mass. 467, 105 N. E. 357; Finn v. Detroit, Mt. C. & M.C. Ry. Co., 190 Mich. 112, 155 N. W. 721, L. R. A. 19.1.6C. 1142; Northwestern Iron Co. v. Industrial Commission 154, Wis. 97, 142 N. W. 271, L. R. A. 1916A, 366, Ann. Cas. 191 5B, 877. " 25 A father who is totally dependent upon his minor son is en- titled to compensation, though the father's wife is living with him at the time of the accident, since the statutory presumption, that a husband is conclusively presumed to be dependent upon the wife with whom he is living does, not arise until she is in- jured. 26 Under the New Jersey Act, illegitimate children forming a part of deceased's household at the time of his death are presumed to be dependent. An illegimate posthumous child is held to form part of deceased's household and to fall within the statutory pre- sumption. 27 25. State ex rel. London & Lancashire Indemnity Co. v. District Court of Hennepin County, 139 Minn. 409, 166 N. W. 772, 1 -v. C. L. J. 835, 16 N. C. C. A. 78. 26. Mahoney v. Gamble-Desmond Co., 90 Conn. 255, 96 Atl. 1025, 13 N. C C. A. 315. 27. Klimchak v. Ingersoll Rand Co., 39 N. J. L. J. 275, 13 N. C. C. A. 274. 918 DEPENDENCY. 368 A wife living apart from her husband in the belief that in so doing a reconcilation would be effected, but with no definite agreement that they should again resume marital relations, sup- porting herself, though the husband sent money at times, couM not be said to come within the statutory presumption as to total dependency of a wife living with her husband, even though she returned in response to a telegram at the time of his injury and spent the last hour or two with him at the hospital before he died. 28 It is held under the Massachusetts Act that a wife living apart from her husband is not entitled to the conclusive presumption of dependency, but whether or not she is dependent is a question of fact. 2 * tinder the same Act a child under the age of 18 is pre- sumed dependent upon the parent with whom he is living at the time of such parent's death, ''there being no surviving dependent parent," and the presumption is conclusive, conditioned upon the non existence of a surviving dependent parent. 30 The relation of husband and wife, having once existed, is pre- sumed to continue. 81 Where a statute provides compensation to parties conclusively presumed to be dependent, further compensation may be awarded to such presumptive dependents even after the period of pre- sumptive dependency expires, if there remains a condition of ac- tual dependency, such as daughters over the age of 18 actually dependent upon a parent, on account of being physically or mentally incapacitated from earning. 32 28. Finn v. Detroit, Mount Clemens & Marine City Ry., 190 Mich. 112, 155 N. W. 721, 13 N. C. C. A. 187. 29. In re Gallagher, 219 Mass. 140, 106 N. E. 558, 9 N. C. C. A. 586; In re Nelson, 217 Mass. 467, 5 N. C. C. A. 694; In re Bentley, 217 Mass. 79, 104 N. E. 432 4 N. C. C. A. 559. 30. In re McNicol, 215 Mass. 497, 102 N. E. 697, 4 N. C. C. A. 522. 31. State ex rel. Coffey v. Chittendend, 112 Wis. 569, 88 N. W. 587. 32. In re Herrick, 217 Mass. Ill, 104 N. E. 432, 4, N. C. C. A. P54; Peabody Coal Co. v. Ind. Bd., 281 111. 579, 117 N. E. 983, 1 W. C. 1 . J. 524, 16 N. C. C. A. 143; State ex rel. Maryland Cas. Co. v. District Court of Ramsey Co., 134 Minn. 131, 158 N. W. 798, 13 N. C. C. A. 263; In re Carter 221 Mass. 105, 108 N. E. 911. Nebr. 1921 Am. 3665 111. 919 369 WORKMEN'S COMPENSATION LAW Under the Massachusetts Act, when there is a widow and a child under the age of 18 years, the widow is presumed to be entirely dependent and the compensation should be paid exclusively to her, though the act now reads ; ' ' to the wife or husband for her or hh own use and for the benefit of her or his own children . ' ' 33 A child by a former wife is presumed to be equally dependent with a surviving wife, and shares benefits equally with such widow, even though there are several children by the surviving widow. But the Massachusetts Act was later amended to read as follows: "The death benefit shall be divided between the surviv- ing wife or husband and all the children of the deceased employee in equal shares, the surviving wife or husband taking the same share as a child." 34 The conclusive presumption that certain children are dependent upon the father does not prelude proof of actual dependency upon the mother, and upon a finding of dependency upon the mother compensation will be allowed for the death of the mother even though the father is living. 35 There is no presumption that parents are dependent upon their children and the burden of proving the dependency rests upon the claimant. 3 " "Where the mother had been given custody of a minor son in divorce proceedings and upon her death the father voluntarily resumed the responsibility of supporting the child, the boy was dependent upon him even though at the time of the death he was working for a third person for his board. 37 369. Wife Living Apart from Husband. A wife living with her son temporarily according to an agreement between her de- 33. In re Employer's Liab. Assur. Corp, McNicol, and Patterson, 102 N- E. 697, 215 Mass. 497, 4 N. C. C. A. 522. 34. Coakley v. Coakley, 102 N. E. 930, 216 Mass. 71, 4 N. C. C. A. 508. Note: For question of husband and wife living apart, see section 369. 35. Johnson Coffee Co. v. McDonald, Tenn. , (1920), 226 S. W. 215. 36. Milwaukee Basket Co. v. Indus. Comm. , Wis. , (1921), 181 N. W. 308. 37. Pac. Gold Dredging Co. v. Indus. Comm., Cal. , (190), 194 Pac. 1, 7 W. C. L. J. 266. 920 DEPENDENCY. 369 ceased husband and herself, on account of her ill health, was living with her husband at the time of his death within the meaning of the compensation act. 38 When the statute provides that a wife shall be conclusively presumed to be dependent upon her husband "with whom she lives," and contains no provision that such presumption shall obtain when the wife is living apart from her husband, the question ot her dependency upon him is one of fact. The words "with whom she lives" have been held to mean that husband and wife are living together as husband and wife in the ordinary acceptation and significance of these words in common understanding; that they are maintaining a home and living together in the same house- hold, or actually cohabiting under conditions which would be regarded as constituting a family relation. 89 A broader view of the meaning of these words has been taken, however, and one more consistent with reason. This view holds the question to be largely one of intention, like the question of one's domicile. 40 Accordingly it does not turn upon time or distance separating the parties, but upon the nature and character of the absence and the intention of the parties respecting it. Where there is no legal separation and no actual separation in the nature of an estrangement, the husband and wife are "living together," al- though they may not be physically dwelling together, and in such case the wife is entitled to the benefit of the statutory provision creating a conclusive presumption as to her dependency. 41 38. Bell City Malleable Iron Co. v. Rowland, 170 Wis. 293, (1919), 174 N. W. 899, 5 W. C. L. J. 333; N. W. Iron Co v. Indus. Comm., 164 Wis. 97, 142 N. W. 271, L. R. A. 1916A, 366, Ann. Cas. 1915B, 877. 39. Gallagher's Case, 219 Mass. 140, H'6 N. E. 558; Nelson's Case, 217 Mass. 467, 105 N. E. 357; State ex rel. Kile v. District Court, Minn. , (1920), 177 N. W. 934, 6 W. C. L. J. 344. 40. Williams v. Williams, 322 Wis. 27, 98 N. W. 431; Thompson v. Thompson, 53 Wis. 153, 10 N. W. 166; Miller v. Sovereign C. W. of W., 140 Wis. 505, 122 N. W. 1126, 28 L. R. A. (N. S.) 178, 133 Am. St. Rep. 1095. 41. Northwestern Iron Co. v. Industrial Comm.. 154 Wis. 97, 142 N. W. 271. L. R. A. 1916 A. 366, Ann. Cas. 1915, B. 877. 921 369 WORKMEN'S COMPENSATION LAW "This seems to be the reasonable and practical construction of the law, and the one which we think the legislature intended. If the law should receive the construction that there must be physical dwelling together in order to satisfy the statute, it is plain that the purpose of the law would in many cases be defeat- ed, because in many cases the spouse may be absent from home for long intervals, although there be no break in the marriage relation, no estrangement ? and no intent to separate or sever the existing relation or change the relations or obligations created by the marriage contract," 42 The question of whether or not the husband and wife were living together is, of course, one of fact ; but when they are found to have been living together, the presumption of dependency is one of law. To justify a finding that husband and wife are not living together, there must be an intentional or permanent separation or estrangement; and temporary absence, such as is necessitated by employment, visits, or conveniences, do not suffice. 43 A wife living apart from her husband by agreement and not re- ceiving her support from him, is not a dependent within the meaning of the act. 44 The same is true of a wife living apart from her husband, suing for divorce, and seeking no support from him. 45 42. Northwestern Iron Co. v. Industrial Comm. 154 Wis. 97, 102, 142 N. W. 217, L. R. A. 1916 A, 366, Ann. Gas. 1915 B, 877. 43. W. Baird & Co. v. Padolska, 8 F. 438, 43 Sc. L. R. 300, 6 N. C. C. A. 251; State Comp. Ind. Fund v. Breslow, 1 Cal. I. A. C. B. No. 12, 6 N. C. C. A. 251; Queen v. Clark, (1906), 2 I. R. 135, 40 I. R. L. T. 19, 6 N. C. C. A. 251; Coulfchard v. Consett Iron Co., 8 W. C. C. 87; Nevadjic v. Northwestern Iron Co., 154 Wis. 97, 142 N. W. 271, L. R. A. 1916 A, 366, Ann. Cas. 1915 B, 877; Morris v. Yough Coal and Supply Co. Pa. , (1920), 109 Atl. 914, 6 W. C. L. J. 210. 44. Burdick v. Grand Trunk Ry. System, Mich. , (1919), 175 N. W. 132, 5 W. C. L. J. 266; Sweet v. Sherwood Ice Co., 40 R. I. 203, 100 Atl. 316, 16 N. C. C. A. 84; Mclnroy v. M'Glashen & Son, Ltd., (1908), Sc. 762, 1 B. W. C. C. 85, 6 N. C. C. A. 248; Polled v. G. N. R. Co., (1912), W. C. & Ins. Rep. 379, 6 N. C. C. A. 248; Lee v. Bessie, (1912), 1 K. B. 85, 5 W. C. C. 55, 6 N. C. C. % A. 249; Turners Ltd. v. Gillies, 41 Sc. L. R. 631, 6 N. C. C. A. 249. 45. Perry v. Industrial Ace. Comm., 176 Cal. 706, 169 Pac. 353, 1 W. C. L. J. 474, 16, N. C. C. A. 83. 922 DEPENDENCY. 360 On the other hand, where a wife is justified in living apart from her husband, it is held that she is not precluded from the benefits of the presumption of dependency. 48 And such justifica- tion is established when the husband is shown to be living in adultery with another woman. 47 In Massachusetts, however, it has been held that although a wife is justified in living away from her husband, the fact that they are not living together destroys the presumption of her dependency, which is then a question of fact. 48 The Massachusetts Act has been amended, and now there is a conclusive presumption of dependency of the wife who has been deserted by her husband or who is living apart from him for justifiable cause. Evidence of an actual separation in the nature of an estrange- ment for more than a year and a half, is sufficient to support a finding that the parties were not living together as husband and wife, within the meaning of the act. 48 Contrary to the above, it is held in Illinois that a wife living apart from her husband and not actually dependent upon him, is entitled to be considered a dependent, if the husband is under a legal obligation to support her. 50 Where a husband and wife are living apart and he sends money for her support and the maintenance of their family home there is a sufficient compliance with the provision of the act 46. State ex rel. v. District Court of Hennepin County, 139 Minn. 409, 166 N. W. 772, 1 W. C. L. J. 836, 16 N. C. C. A. 80; State ex rel. Grant Const. Co. v. Dist Ct. of Ramsey County, 137 Minn. 283, 163 N. W. 509. 47. H. G. Goelitz Co. v. Industrial Board, 278 111. 164, lib N. E. 855, 16 N. C. C. A. 80. 48. In re Gallagher, 219 Mass. 140, 9 N. C. C. A. 586; In re Nelson. 217 Mass. 467, 5 N. C. C. A. 694; In re Bentley, 217 Mass. 79, 4 N. C. C. A. 559; In re Newman, 222 Mass. 563, 111 N. E. 369, L. R. A. 1916C, 1145; In re Fierro's Case, 222 Mass. 378, 111 N. E. 957. 49. Smith v. Scheiddeger, 170 Wis. 162, (1919), 174 N. W. 462, 5 W. C. L. J. 123. 50. American Milling Co. v. Indus. Bd. of 111. 278, 111. 560, 117 N. E. 147, 16 N. C. C. A. 86; Goelitz Co. v. Indus. Bd., 278 111.. 164, 115 N. E. 855, 16 N. C. C. A. 80; Smith -Lohr Coal Mining Co. v. Indus. Comm.. 286 111. 34, 121 N. E. 231, 3 W. C. L. J. 250; Cunningham v. McGregor, 38 8. L. R. 574; Atlanta R. R. v. Gravitt, 26 L. R. A. 553. 923 369 WORKMEN'S COMPENSATION LAW requiring husband and wife to be living together in order to create a conclusive presumption of dependency. 51 In a case in which the wife denied the allegations of her deceased husband's divorce petition to the effect that she drove him from their home, the court said: "The fact that parties thus situated live separate and apart from each other might, standing alone, give rise to an inference that it was voluntary on the part of each. But any such inference is sufficiently rebutted in this case. "It may be remarked in passing that the expression 'voluntarily living apart from her husband,' as used in this statute (Minn. Gen. St. 1913, Sec. 8208, as amended by chapter 209, Laws of 1915), means, and should be construed to mean, the free and intentional act of the wife uninfluenced by extraneous causes, or as it might be otherwise expressed, her choice deliberately made and acted upon." 52 Where a wife 1 left her husband six months before the occurrence of an accident, resulting in his death, had supported herself, though the husband had sent her some money during this time, and she returned, in response to a telegram from his employer's claim agent, and stayed with her husband at the hospital for an hour or two until he died, she is not to be conclusively presumed to be totally dependent upon her husband, though she testified that she sepa- rated from her husband because of differences of religious faith, etc., and in the belief that her doing so would eventually result in their, reconciliation. 53 An insane wife cared for by the state for nine years is not a dependent, for a wife living apart from her husband must be actually dependent upon and receiving support from her husband at the time of his death. 54 51. Muncie Foundry & Machine Co. v. Coffee, 64 Ind. App. , 117 N. E. 524, 1 W. C. L. J. 78, 16 N. C. C. A. 82; Coletrane v. Ott, W. Va. (1920), 103 S. E. 102, 6 W. C. L. J. 232. 52. State ex rel. Geo. J. Grant Const. Co. v. District Court of Ramsey County, 137 Minn. 283, 163 N. W. 509, 16 N. C. C. A. 79. 53. Finn v. Detroit, Mount Clemens & Marine City Ry., 190 Mich. 112, 155 N. W. 721, 13 N. C. C. A. 187. 54. Roberts v. Whaley, 192 Mich. 133, 158 N. W. 209, 13 N. C. C. A. 189; Berlin v. Chesky, Wis. Ind. Conim. , 6 N. C. C. A. 269. 924 DEPENDENCY. 369 Where the deceased left his wife and refused to support her, whereby she was compelled to rely upon her step sons for support, the court, in holding that she was entitled to compensation, said: "The mere fact that one of the parties to a marriage contract desires to break the contract and neglect his duties under the same does not release him from those duties and obligations, un- less the other party to the contract consents to the same and waives her rights under the said contract of marriage." 58 A wife living apart from her husband, because the husband was unable to earn sufficient to have a home, may be dependent upon him if he actually contributes to her support. 86 Under the New Jersey and English Acts a wife living apart from her husband for justifiable cause and not relinquishing her claim upon him for support, but seeking to enforce it through processes of court is dependent upon the husband, despite the fact that at the time of his death he was evading an order of the court to support his wife and child and the widow was supporting herself and child. 57 But in the New Monckton Colleries case the court held that there was conclusive evidence that the applicant was in fact not a dependent upon her husband's earnings nor in any way claiming the fulfillment of his duty towards her. The fact that a husband is liable for the support of his wife in law is not of itself sufficient evidence to support a claim for compensation by the widow. "Money coming to a widow under the act is not a present in consideration of her status; it is a payment by a third person to compensate her, as a dependent, for her actual pecuniary loss by her husband's death, and * * * there is no rule of law to prevent the arbitrator from finding that, though 55. McHugh v. E. J. Dupont, De Nemours & Co., 39 N. J. L. J. 153, 13 N. C. C. A. 193. 56. Veber v. Mass. Bonding & Ins. Co., 224 Mass. 86, 112 N. E. 485, 13 N. C. C. A. 196; In re Newman, 222 Mass. 563, 111 N. E. 359, 13 N. C. C. A. 197; Morris v. Yough Coal and Supply Co., Pa. , (1920), 109 Atl. 914, 6 W. C. L. J. 210. 57. Young v. Niddrie & Benhar Coal Co., (1913), 6 B. W. C. C. 774; Medler v. Medler, (1908), 1 B. W. C. C. 332; Mees v. P. BallanUne & Sons Inc., 37 N. J. L. Ill, 9 N. C. C. A. 587; New Monckton Col- leries, Ltd. v. Keeling, (1911), A. C. 648, 6 N. C. C. A. 240, 106 L. T. 337, 4 B. W. C. C. 332, 27 T. L. Rep. 551. 925 370 WORKMEN'S COMPENSATION LAW married to the deceased, the applicant was not in fact dependent upon him." Where a husband and wife lived together only occasionally and for short periods, and the husband paid the doctor's and grocer's bills, bought clothes for his child and gave money to his wife, who was also earning money, it was held that it was a question of fact for the industrial commission to determine whether the wife was living apart from her husband for a justifiable cause. 58 And a wife living apart from her husband because at the time of the separation he was not able to support her, but at the time of his death he was able to support her, is not living apart for justifiable cause. 59 Where a husband upon leaving an insane asylum, had gone to reside some distance from his wife, it was held that in view of the fact that the husband had, upon previous occasions, shown antipathy towards his wife, she was justified in living apart from him until he, at least had shown some inclination to have her reside with him. 60 The fact that a husband, who was living apart from his wife, contracted a bigamous marriage, will not, of itself, defeat his widow's right to compensation. 61 370. Dependency and Matters Related Thereto Questions of Law or of Fact Dependency, its extent, and persons entitled to compensation, are questions of fact for the industrial commission to determine in all cases, other than the cases of those persons con- clusively presumed to be dependent. 02 and unless the commission 58. Veber v. Massachusetts Bonding & Ins. Co., 224 Mass. 86, 112 N. E. 485. 59. In re Newman's Case, 111 N. E. 359, 222 Mass. 563. 60. Gates v. A. G. Dewey Co., Vt. , (1920), 111 Atl. 446, 6 W. C. L. J. 719. 61. Coletrane v. Ott, W. Va. , (1920), 103 S. E. 102, 6 W. C. L. J. 232. 62. Keller v. Indus. Comm., 291 111 314, (1920), 1?6 N. E. 162, 5 W. C. L. J. 665; Rock Island Bridge & Iron Works v. Indus. Comm., 287 111. 648, 122 N. E. 8^0, 4 W. C. L. J. 33; O'Flynn's Case, 232 Mass. 582, (1919), 122 N. E. 767, 4 W. C. L. J. 105; Perotti't, Case, 233 Mass. 297, (1919), 123 N. E. 776, 4 W. C. L. J. 391; Hodgson v. West Stanely Col- 926 DEPENDENCY. 370 has applied an illegal standard, or found a fact without evidence to support it, the court cannot review its finding. 83 On appeal, the question whether there 1 was any evidence to sup- port the finding of the board or commission, is one of law. 8 * "There has befen a good deal of divergence in judicial opinion as to what dependency means. There has been a disposition to draw highly refined distinctions, and the decisions arrived at and the rea- sons for them have not always been consistent. I think that this liery, 3 B. W. C. C. 260, 6 N. C. C. A. 285; Fennimore v. Pittsburg Scammon Coal Co., 100 Kan. 272, 164 Pac 265, 16 N. C. C. A. 176; Garcia v. Indus. Comm., 171 Cal. 57, 151 Pac. 741, 13 N. C. C. A. 316; Simmons v. White Bros. Co., (1899), 1 Q. B. 1005, 6 N. C. C. A. 285; Tamworth Colliery Co. v. Hall, (1912), W. C. & Ins. Rep. 79, 6 N. C. C. A. 285; In re Herrick, 217 Mass. Ill, 104, N. E. 432; In re Newman's Case, 222 Mass. 563, 111 N. E. 359, L. R. A. 1916 C, 1145; Hartley v. Boston & N. St. Ry. ( 198 Mass. 163, 83 N. E. 1093; Potts v. Niddrie & Benhar Coal Co., (1913), A. C. 531; Petrozino v. Amer. Mut. Liab. Co., 219 Macs. 498, 107 N. E. 370; Miller v. Public Service Ry. Co., 84 N. J. Law, 174, 85 Atl. 1030; Appeal of Hotel Bond Co., 89 Conn., 143, 93 Atl. 245; Main Colliery Co., Ltd., v. Davies, 16 T. T. 460; Houlihan v. Connecticut River R. R. t 164 Mass. 555, 42 N. E. 108; American Legion of Honor v. Perry, 140 Mass. 580, 5 N. E. 634; Miller v. Riverside Storage Co., 189 Mich. 360. 155 N. W. 462; State ex rel. Globe Indemnity Co. v. District Court, 132 Minn., 249, 156 N. W. 120; Muzik v. Erie R. Co., 85 N. J. Law, 131, 89 Atl. 248, 86 N. J. Law, 695, 92 Atl. 1087; Havey v. Erie R. Co., 88 N. J. Law, 684, 96 Atl. 995; Walz v. Holbrook, Cabot & Rollins Corp., 170 App. Div. 6, 155 N. Y. Supp. 703; Rockford Cabinet Co. v. Indus. Comm., 111. , (1920), 129 N. E. 142, 7 W. C. L. J. 280; Day v. Sioux Falls Fruit Co., , S. Dak. , (1920), 177 N. W. 816, W. C. L. J. 216; Southern Surety Co. v. Hibbs, Tex. Civ. App. , (1920), 221 S. W. 303, 6 W. C. L. J. 225; MacDonald v. Employers Ass'n. Liab. Corp., Me. , (1921), 112 Atl. 719. 63. McDonald v. Great Atlantic & Pacific Tea Co., Conn. , (1920), 111 Atl. 65, 6 W. C. L. J. 525; McVicar v. Indus. Comm. of Utah, Utah , (1920), 191 Pac. 1089, 6 W. C. L. J. 596; Geo. A. Lowe v. Indus. Comm. of Utah, Utah, 190 Pac. 934; Alden Coal Co. v. Indus. Comm., 111. , (1920, 127 N. E. 341, 6 W. C. L. J. 274; Henry Pratt Co. v. Indus. Comm., 111. , (19 9 0), 127 N. E. 754, 6 W. C. L. J. 296; Globe Grain & Milling Co. v. Indus. Comm., Utah , (1920). 193 Pac. 642, 7 W. C. L. J. 245. 64. In re Herrick, 217 Mass. Ill, 104 N. E. 433, 4 N. C. C. A. 554; Hoff v. Hackett, 148 Wis. 32, 134 N. W. 132; Northwestern Iron Co. v. In- dustrial Comm., 154 Wis. 97, 142 N. W. 271, L. R. A. 1916 A 366; Hancock 927 370 WORKMEN'S COMPENSATION LAW tendency and its consequences will be lessened if it is borne firmly In mind that the question is always primarily one of fact. 65 Whether a widow and deceased husband were 1 living together at the time of the injury is a question of fact. 66 Expenses incurred on account of a deceased minor son are per- tinent in determining dependency, but immaterial in ascertaining the amount of compensation when dependency is' established. And the question of dependency is to be determined on conditions ex- isting r.t the time of the injury.' 67 "It is clear from this section of the act that the widow is conclu- sively presumed to be wholly dependent. It is equally clear that the daughter, who is 13 years of age, is not conclusively presumed to be wholly de-pendent, because it appears that she was not living with her father at the time of his death. So that, if the daughter is entitled to compensation, it must be because she is shown to be wholly dependent on the decedent under that portion of said act which provides: 'In all other cases the question of dependency in whole or in part shall be determined in accordance with the fact, as the fact may be at the time of the injury.' While it may be con- ceded, as contended by appellant, that there was a legal as well as a moral obligation resting upon decedent to support his daughter, yet the question of dependency, in cases such as this, is not to be determined upon such obligations, although they are to be taken in- et al. v. Indus. Comm., Utah , (1921), 198 Pac. 169. 65. Young v. Niddrie & B. Coal Co., 29 T. L. Rep 626, 6 B. W. C. C. 774, 82 L. J. P. C. 147. Morris v. Yough Coal & Supply Co. Pa. , (1920), 109 Atl. 914, 6 W. C. L. J. 210. 66. Smith v. Indus. Comm., 170 Wis. 162, (1919), 174 N. W. 462, 5 W. C. L. J. 123, 174 N. W. 462; Iron Co. v. Indus. Comm., 154 Wis. 97 142 N. W. 271, 3 N. C. C. A. 670; In re Nelson, 217 Mass. 467, 105 N. E. 357, 5 N. C. C. A. 694; Taylor v. Seabrcok, 87 N. J. L. 407, 94 Atl. 399; Travelers Ins. Co. v. Hallauer, 131 Wis. 371, 111 N. W. 527. 67. Freeman's Case, 233 Mass. 287, (1919), 123 N. E. 845, 4 W. C. L. J. 498; Mulraney v. Brooklyn Rapid Transit Co., 180 N. Y. S. 654, 5 W. C. L. J. 731; Botts Case, 230 Mass. 152, 119 N. E, 755; Kenney's Case, 222 Mass. 401, 111 N. E. 47; Pinel v. Rapid R. System, 184 Mich. 169, 150 N. W. 879; Blanton v. Wheeler, etc., Co., 91 Conn. 226, 99 Atl. 494; Birmingham v. Electric, etc., Co., 180 App. Div. 48. 167 N. Y. Supp. 520; Dazy v. Apponaug Co., 36 R. I. 81, 89 Atl. 160. 928 DEPENDENCY. 370 to consideration when the question of dependency is to be deter- mined as a matter of fact. Also, the fact that decedent was order- ed, in the divorce proceeding referred to, to pay $8 per month for the support of his child, may be taken into account to determine the existence of the ultimate 1 fa^t of dependency. Likewise, wheth- er there is any probability that such order would be discharged either voluntarily or by proper legal proceedings, or the probabil- ity that the daughter would ever seek to enforce her rights under the order, if the requirements thereof were not voluntarily com- plied with, are matters which would be proper for the Industrial Board to consider in connection with all other competent evidence to aid them in determining the question of fact whether or not ap- pellant at the time of her father's injury, resulting in his death, depended upon his wages for her support in whole or in part." r>s "While the question of dependency may involve principles of law, the fact remains that dependency is a question of fact to be determined from all the circumstances of the case, and the burden of proving it rests upon him who claims it." 69 The dependency of an alien wife is a question of fact ; 70 and so is the dependency of a wife living apart from her husband. 71 The question of what disposition of compensation for the death of an employee 1 is in proportion to the respective needs of the de- pendents and just and equitable, even to the total exclusion of one or more 1 of them, is one of fact for the industrial commission. 72 68. Schwartz v. Gerding & Auman Bros., Ind. App. , 121 N- B. 89, 2 W. C. L. J. 282. 69. Benjamin F. Shaw Co. v. Palmatory, Delaware , (1919), 105 All. 417, 3 W. C. L. J. 424; Miller v. Public Service R. Co. 84 N. J. L. 174, 85 All. 1030, 3 N. C. C. A. 593; Muzik v. Erie R. Co., 85 N. J. L. 129, 89 Atl. 248. 4 N. C. C. A. 732, 86 N. J. L. 695. 70. In re McDonald, 229 Mass. 454, 118 N. E 949, 1 W. C. L. J. 808. 16 N. C. C. A. 87, 214; In re Derinza, 229 Ma*s. 435, 118 N. E. 943, 1 W. C. L. J. 795, 16 N. C. C. A. 87; In re Mooradjian, 229 Mass. 521, 118 N. E. 951, 16 N. C. C. A. 215, 920; In re Fierro's Case, 222 Mass. 378, 111 N. E. 958, 13 N. C. C. A. 544. 71. In re Bentley, 2 1 7 Mass. 79, 4 N. C. C. A. 559, 104 N. E. 432. 72. Perry v. Indus. Ace. Comm., 176 Cal. 709, 169 Pac. 353, 1 W. C. L. J. 474, 16 N. C.C. A. 83. 929 W. C. 59 371 WORKMEN'S COMPENSATION LAW A parent may be dependent upon his son for support under some circumstances, but the court is not required to hold as a matter of law that he is so dependent simply because he receives money fiom his son and spends it. 73 In a proceeding for compensation by a widow, it appeared that the deceased left a father, brothers and sister. No proof of actual dependency of the father, brothers or sister was made, and the court held that in the absence of such proof no increase in the award could be made, for there was no presumption of their de- pendency. 74 Where the contributions of the deceased to. his dependents have not been constant, either as to time of payment or amounts, the determination of what that amount is during the year preceeding death, rests in the sound discretion of the commission, based on the evidence. 75 The existence of a common-law marriage is a question of fact and the boards finding is conclusive, and where the evidence was not clear and convincing upon this point, the Board's finding was justified, and the illegitimate son of the deceased is not en- titled to compensation under the Michigan Act. 76 371. Partial Dependents. The term "actual dependents," as used in the acts, has been construed to mean dependents in fact, whether wholly or partially dependent. 77 And a person may be partially dependent even though the contributions be at irregular intervals or in irregular amounts, and though the dependent has other means of support, 78 and is not in a position of absolute 73. Main Colliery Co. v. Davies (1900), A. C. 358, 6 N. C. C. A. 243, 2 W. C. C. 108, 83 L. T. 83, 16 T. L. Rep. 46, 69 L. J. Q. B. 755. 74. Miller v. Public Service R.'R. Co., 84 N. J. L. 174, 3 N. C. C. A. 593, 85 Atl. 1031. 75. Popst v. Industrial Accident C. of Cal., Cal. , 192 Pac. 296, 6 W. C. L. J. 643. 76. Brown v. Long Mfg. Co., Mich. , (1921), 182 N. W. 124. 77. Muzik v. Erie Ry. Co., 86 N. J. L. 695, 92 Atl. 1087, Ann. Gas. 1916A 140; Jackson v. Erie Ry. Co., 86 N. J. L. 550, 91 Atl. 1035; Hammill v. Penn. R. Co., 87, N. J. L. 388, 94 Atl. 313; Havey v. Erie Ry. Co., 87 N. J. L. 444, 95 Atl. 124; Miller v. Pub. Serv. Ry. Co., 84 N. J. L. 174, 85 . tl. 1030; Arrol & Co. v. Kelly, 7 F. 906, 42 S. C. L. 695. 78. Keller v. Indus. Comm , 291 111. 314, (1920), 126 N. E. 162, 5 W. C. 930 DEPENDENCY. 371 want. 78 Partial dependency is based upon the actual contributions to the support of the party, and not upon contributions for purposes other than support. 80 The fact that the contributions received were not essential to the support of life does not bar the claimant as a partial de- pendent. The test that has been laid down is, whether sucli contributions were relied upon by him for his means of living ac- cording to his class and position in the community. 81 This test may be applicable under some acts and not under others. The Connecticut Act makes the sole test one of dependen. y while the English Act provides that in cases of partial dependency the amount recoverable shall be reasonable "and proportionate to the injury to the said dependents." Accordingly, under the latter Act, the question is whether the claimant has suffered financial injury by reason of the death of the deceased. This is a very broad test, if a test at all, rather than an element only among L. J. 665; Rock Island Bridge & Iron Wks. v. Indus. Comm., 287 111. 648, (1919), 122 N. E. 830, 4 W. C. L. J. 33; Walz v. Holbrook, 170 App. Dlv. 6, 155 N. Y. S. 703; TIerre v. Bush Terminal Co., 172 App. Div. 386, 158 N. Y. S. 883; Rhyner v. Hueber Bldg. Co., 171 App. Div. 56, 156 N. Y. S. 903; Appeal of Hotel Bond Co., 89 Conn. 143, 93 All. 245; Kennerson v. Thames Towboat Co., 89 Conn. 367, 94 All. 372, L. R. A. 1916 A. 436; Smith v. National Sash & Door Co., 96 Kan. 816, 153 Pac. 533; Dodge v. Boston & Providence R., 154 Mass. 299, 28 N. E. 243, 13 L. R. A. 318; Bentley v. Mass. Emp. Ins. Assn., 217 Mass. 79, 104 N. E. 423; Krauss v. Geo. H. Fritz & Sons, 87 N. J. L. 321. 13 N. C. C. A. 319; Freeman's Case, 233 Mass. 287, (1919), 123 N. E. 845, 4 W. C. L. J. 499; Kenney v. City of Boston, 222 Mass. 401, 111 N. E. 47; Miller v. River Side Storage and Cartage Co., 189 Mich. 360, 155 N. W. 462. 79. Rhyner v. Hueber Bldg. Co., 171 Anp. Div. 56, 156 N. Y. S. 903; Walz v. Holbrook Cabot & Rollins Corp., 170 N. Y. App. Div. 6, 155 N. Y. S. 703. 80. In re McMahon, 229 Mags. 48, 118 N. E. 189. 16 N. C. C. A. 185; Mulraney v. Brooklyn Rapid Transit Co., 190 N. Y. App. Div. 774, 180 N. Y. S. 654, 5 W. C. L. J. 731; Dazy v. Apponaug Co.. 36 R. I. 81, 4 N. C. C. A. 694, 89 All. 160; MacDonald v. Employer's Assur. Liab. Corp., Me. (1921), 112 Atl. 719. But see State ex rel. Fleckenstein Brg. Co. v. District Court of Rice Co., 134 Minn. 324, 159 N. W. 755, 1C N. C. C. A. 185. See 1921 Am. Me. Act ( I fvlil]). 81. Powers v. Hotel Bond Co., 89 Conn. M3, 93 Atl. 245. 931 371 WORKMEN'S COMPENSATION LAW others to be found, and might be applied in all cases where claim is based on partial dependency; for, if the claimant has suffered no financial deprivation, then certainly he was not dependent. However, the contrary view has been taken in the case of a father who claimed compensation upon the death of his son, whom he supported: the court holding that it was not required to strike a balance between the son's earnings and the cost of his main- tenance, with a view to ascertaining whether his death was a financial injury to the father. 82 In any view, the fact that the claimant can manage to exist without the contributions formerly received from the deceased, is in no sense decisive of the question of his dependency. Accord- ingly, a case of partial dependency was found, although the de- ceased was fatally injured before his first pay day. 83 A mother who receives contributions from a son for use in her support, is partially dependent upon the son for support even though she* is living with her husband, if the husband is not sufficiently providing for her support. And a finding of partial dependency, whatever its degree, entitles the dependent in Illinois to at least the minimum award provided in the act. 84 Under the Kentucky Act a father partially dependent upon his son is entitled to his proportionate share of the death benefit, even though the deceased son left a totally dependent widow. 85 Evidence that a son's contribution of $8 per week when working enabled the mother to run her house more easily than after she was deprived of her son's support, was held sufficient to constitute the mother a partial dependent, though her husband was alive and not incapacitated. 86 82. Mahorey v. Gamble-Desmond Co., 90 Conn. 255, 96 Atl. 1025. 83. Freeman's Case, 233 Mass. 287, (1919), 123 N. E. 845, 4 W. C. L. J. 499; McMahon's Case, 229 Mass. 48, 118 N. E. 189, 1 W. C. L. J. 387. 84. Keller v. Indus. Comm., 291 111. 314, (1920), 126 N. E. 162, 5 W. C. L. J. 665; Rock Island Bridge & Iron Works v. Indus. Comm., 287 111. P48, (1919), 122 N. E. 830; 4 W. C. L. J. 33; Krauss v. Geo. H. Fritz & Son, 87 N. J. L. 321, 93 Atl. 578, 13 N. C. C. A. 319. 85. Penn v. Penn., 183 Ky. 228, (1919), 209 S. W. 53, 3 W. C. L. J. 634. 86. Grant v. Kotwall, Md. , (1919), 105 Atl. 758, 3 W. C. L. J. 735. 932 DEPENDENCY. 371 Where the deceased contributed weekly to the support of his mother and half-brothers and half-sisters, a finding that they were partially dependent upon him was justified by the evidence." 1 In a Kansas case the court said: "The question whether or not the plaintiffs were partially dependent on the earning of their son was a question of fact, and finding of the fact of partial dependency is conclusive on appeal if there be any evidence to support it. The statute is a blind guide to the determination of the question of fact. Dependents are said to be members of the workman's family who were dependent on him. The definition includes the term to be defined. Earnings of the workman come in as a factor of dependency in the provision relating to the amount of compensation to those who were wholly dependent. Injury comes in the provision relating to the amount of com- pensation to partial dependents. But there is no definite standard of dependency, either total or partial. Perhaps the legislature used the word 'dependent' in the dictionary sense of relying on the workman's earnings for support. Support for what? The bare neces- sities of life, without which existence would be impossible, or sup- port according to some standard? If according to some standard, what standard? One to which the dependent was accustomed or one which the court might think reasonable under all the circum- stances? * * * Accepting the statute just as it came from the legislature, the court is of the opinion that the question before the district court was not one of how the domestic economics of the Fennimore family might have been arranged, or ought to have been arranged, but how they were arranged ; and if the father and mother did in fact depend in part upon the son's earnings, so that they suffered injury by being deprived of what they had relied up- on they were entitled to recover. This being true, the finding of par- tial dependency is abundantly sustained." 88 Under the Indiana Act a mother who received Contributions from a minor son together with contributions from her former hns- 87. Bylow v. St. Regis Paper Co., 179 N. Y. App. Div. 655, 166 N. Y. S. 874, 16 N. C. C. A. 152. 88. Fenimore v. Pitteburg-Scammon Coal Co., 100 Kan. 372, 164 Pac. 265, 16 N. C. C. A. 176. 933 371 WORKMEN'S COMPENSATION LAW band under a decree of divorce, is entitled to an award for partial dependency upon the death of her minor son. 89 Contemplated improvements on the father's house could not be considered in determining the amount payable to him as a partial dependent of his son. 90 There is no difference between the amount payable to parents, regardless of whether they are considered total or partial depend- ents, when the son turned over all his earnings to the family fund. 91 In other cases of partial dependency the amount of compensation is to be measured by the actual "average amount contributed weekly" instead of the technical "Average weekly wage." 92 Where the deceased son turned all of his earnings into the family fund and in return received his clothes and spending money, the court held that the parents were partial dependents as they reg- ularly derived part of their support from the wages of the deceased, and this despite the fact that the father was earning and the family were saving to pay off a mortgage on the home. 93 An unmarried sister, who received assistance from a brother during her pregnancy and after child birth until the brother was killed, was, in view of the fact that she would in all probability, need assistance in the future, entitled to compensation as a partial dependent, even though she was capable of partially providing for her needs. 94 An agreement between the deceased and a sister that she stay home and care for the family and that he would support her, is sufficient to constitute a basis for a finding of dependency ; but 89. Bloomington-Bedford Stone Co. v. Phillips, 64 Ind. App. , 116 N. E. 850, 16 N. C. C. A. 180. 90. In re McMahon, 229 Mass. 48, 118 N. E. 189, 16 N. C. C. A. 185. 91. In re Peters, 64 Ind. App. , 116 N. E. 848; Bloomington Bedford Stone Co. v. Phillips, 64 Ind. App. , 116 N. E. 850, 16 N. C. C. A. 385. 92. Indian Creek Coal and Mining Co. v. Kutter, Ind. App. , (1921), 131 N. E. 413. 93. State ex rel. Ernest Fleckenstein Brewing Co. v. District Court of Rice County, 134 Minn. 324, 159 N. W. 755, 16 N. C. C. A. 185. 94. Jackson v. Indus. Comm. of Wis., 164 Wis. 94, 159 N. W. 561, 13 N. C. C. A. 458. 934 DEPENDENCY. 371 where the sister had other sources of income the finding must be of partial dependency. 95 A sister who was earning $10.00 per week as a stenographer may be found to be partially dependent upon her deceased brother, when the brother had been actually lending assistance U her, for there is no standard as to just when a person can be said not to be in need of such support, in order that she could live in accord- ance with her position and rank in life. 06 Where a statute sets a minimum for partial dependents and not for total dependents, as in the Minnesota Act, it has been held that the same construction should be placed on both, and there should be no minimum amount which a partial dependent should receive. But the amendment of 1915 to the statute removed this difficulty. 97 Where deceased sent $30.00 a month to his mother for the support of his crippled sister, but it appeared that the entire sum was not expended upon the sister, an award of partial dependency was sustained. 98 The fact that a parent was capable of self support does not pre- clude him from compensation as a partial dependent. 99 Under the Michigan Act, if the annual earnings of an employee do not exceed $520.00, compensation should be awarded at the rale of $5 per week for 300 weeks, in case of death. 1 The Minnesota Act provides that the amount paid to partial dependents shall be "that proportion of the benefits provided for actual dependents which the average amount of the wages regularly contributed by the deceased to such partial dependent at, and for 95. Kenney v. City of Boston, 222 Mass. 401, 111 N. E. 47, 13 N. C. C. A. 461. 96. Miller v. Riverside Storage and Cartage Co., 189 Mich. 360, 155 N. W. 462, 13 N. C. C. A. 462. 97. State ex rel. Globe Indemnity Co. v. District Court of Ranuey Co., 132 Minn. 249, 156 N. W. 120, 13 N. C. C. A. 463. 98. Cheperton v. Oceanic S. N. Co., (1913), W. C. & Ins. Rep. 462, 6 N. C. C. A. 264. 99. Howells v. Vivian & Sons, (1901), 50 W. R. 163, 85 L. T. 529, 18 T. L. R. 36, 4 W. C. C. 106, 6 N. C. C. A. 274. 1. De Mann v. Hydraulic Engineering Co., 192 Mich. 594, 195 N. W. 380. 935 371 WORKMEN'S COMPENSATION LAW a reasonable time prior to the injury, bore to the total income of the dependent during the same time." 2 The minimum death benefit to be paid to partal dependents in Minnesota is $6.00 per week. 3 Under the Washington Act a dependent mother was held en- titled to $20.00 per month as long as the dependency lasted, and the provision of the act that in case of a minor's death compensation should continue for a time equal to the time when the minor would have become of age applies exclusively to cases where there were no dependents. 4 Under the "Wisconsin Act, in case of. death the compensation cannot be decreased because the employee is over 55 years of age, as in the case of permanent disability. 5 Under the Federal Act, which fixes compensation, of brothers and sisters, where there is one totally dependent, at 20 per cent, if more than one 30 per cent,. share and share alike, and where there are none wholly dependent but one or more partially dependent, 10 per cent to be divided share and share alike, it wa^j held 'Jiat where there were several persons partially dependent that the commission might, in the exercise of its discretion, allow anywhere between 10 and 30 percent, for to do otherwise would not afford any appreciable amount to any one. 6 It has been held that under the Connecticut Act "a partially dependent may reeieve any fractional part of the weekly compen- sation to be paid the wholly dependent; and under the maximum and minimum provision a sum in excess of the weekly aid received by the partially dependent from the employee may in some cir- cumstances be awarded such dependent." 7 2. State ex rel. Hayden v. District Court of St. Louis Co., 133 Minn. 454, 158 N. W. 792. 3. State v. District Court of Rice County, 134 Minn. 324, 159 N. W. 755. 4. Boyd v. Pratt, 72 Wash. 306,, 130 Pac. 371.. 5. City of Milwaukee v. Ritzow, 158 Wis. 376, 149 N. W. 480, 7 N. C. C. A. 498. 6. In re John P. Murphy, 3rd A. R.U. S. C. C. 101. 7. Quilty v. Connecticut Co., Conn. - -, 113 Atl. 149 (1921). 936 DEPENDENCY. 372 372. Total Dependency. Total dependency exists where persons coming within the statutory classification of " who may be dependents" subsist entirely upon the earnings of the workman, 8 irrespective of the fact that in the absence of the assistance such j ersons would be able to support themselves 9 It is immaterial that gratuitous contributions from, persons other than the workmen are* occasionally received, 10 that they hold small savings accounts of their own, 11 that the moneys received i'tom the workman were other than his earnings, 12 or were paid to others for the support of the one claiming dependency. 18 On the other hand, the fact that a claimant has a substantial independent fund of his own, may reduce his dependency from whole to partial. 14 Thus, where the claimant had $600 in bank, and one-third in- terest in unincumbered productive real estate in Boston that was assessed for $1300, her claim as one wholly dependent was 8. Marsh v. Boden, (1905), 7 W. C. C. 110 C. A. ; Simms v. Lilleshall Colliery Co. Ltd., 1917 W. C. & Ins. R. 218, 16 N. C. C. A. 147; In re Yeople, 182 N. Y. App. Div. 438, 169 N. Y. Supp. 584 Aff'd. 223 N. Y. , 16 N. C. C. A. 149. 9. Belle City Malleable Iron Co. v. Rowland, 170 Wis. 293, (1919), 174 N. W. 899,, 5 W. C. L. J. 333; Simms v. Lilleshall Colliery Co. Ltd., (1917), W. C. & Ins. Rep. 218, 16 N. C. C. A. 147; In re Herrick, 217 Mass. Ill, 104 N. E. 433, 4 N. C. C. A. 554; Moyes v. Dixon Ltd., (1950), 7 F. 386. 10. Petrozino v. American Mutual Liab. Co., 219 Mass. 498, 107 N. E. 370, 9 N. C. C. A. 594; State ex rel. Splady v. District Court of Hennepin Co., 128 Minn. 338, 151 N. W. 123, 9 IT. C. C. A. 580; Kennerson v. Thames Towboat Co., 89 Conn. 367, 94 All. 372, L. R. A. 1916A, 436. 11. In re Buckley 218 Mass. 354, 105 N. E. 979, 5 N. C. C. A. 613; In re Carter, 221 Mass. 105, 108 N. E. 911, 9 N. C. C. A. 579; Morris v. Yough Coal & Supply Co., 266 Pa. , 109 Atl. 914, 6 W. C. L. J. 210 (1920). 12. State ex rel. Crookston Lbr. Co. v. District Ct. Beltrami Co. 131 Minn. 27, 13 N. C. C. A. 556, 154 N. W. 609. 13. Walz v. Holbrook, Cabot & Rollins Corp., 170 App. Div. 6, 155 Supp. 703; O'Flynn's Case, (1919), 232 Mass. 582, 122 N. E. Rep. 767, 4 \v C. L. J. 105. 14. Dazy v. Apponaug Co., 36 R. I. 81. 89 AU. 160, 4 N. C. C. A. 694. 937 372 WORKMEN'S COMPENSATION LAW disallowed, and she was allowed compensation on the basis of partial dependency only. 15 Where the statute fixes the time for determining dependency as antecedent to the employee's death; that is, at the time of the injury, money or property coming to the claimant out of the deceased's estate cannot be considered in determining whether claimant was wholly or only partially dependent upon such em- ployee. 10 A wife living with a husband at and prior to the time of t'he injury is conclusively presumed to be totally dependent upon him, despite the fact that she had a separate income of her own. 17 A claim of total dependency by a wife in Italy upon a husband in the United- States cannot be sustained, where the evidence shows that the husband owned the house, the widow and family were living in, in Italy, without a further showing that the house was of no value. 18 A grown daughter keeping house for her father and receiving her entire support from him, is totally dependent on the father, even though she is capable of earning her own living. The court said: "Under the Workmen's Compensation Act, 1906, it, is clear that dependency has to be ascertained at the time of the death ; and if the dependency is total, the learned judge as arbitrator has no discretion as to the amount of compensation to be awarded, but it is the amount of the workman's earnings during 3 years. If the dependency is partial, the whole thing is at large, and the arbitrator has to take all the circumstances into consideration and then say what was the proper amount of compensation. He is not tied down except that he cannot give more than a certain sum. He is not bound to give any particular sum. Here the learned 15. Kenney v. City of Boston, 222 Mass. 401, 111 N. E. 47. 16. Kenney v. City of Boston, 222 Mass. 401, 111 N. E. 47; Pryce v. Penrikyber Nav. Col. Co., 85 L. T. 477, 4 W. C. C. 115, (1902), 1 K. B. 221, 71 L. J. K. B. 192, 50 W. R. 197, 66 J. P. 198. 17. Belle City Malleable Iron Co. v. Rowland, 170 Wis. 293, (1919), 174 N. W. 899, 5 W. C. L. J. 333. 18. In re Derinza, 229 Mass. 435, 118 N. E. 942, 1 W. C. L. J. 795, 16 N. C. C. A. 210; In re McDonald, 229 Mass. 454, 118 N. E. 949, 1 W. C. L. J. 808, 16 N. C. C. A. 87, 214. 938 DEPENDENCY. 372 judge has taken the view that he must see whether this applicant was physically incompetent to earn wages, in order to ascertain whether she was totally dependent on her father. This is plainly wrong. It seems to me that the learned county court judge had no right to consider anything else but this: Was the daughter in fact wholly dependent on her father's earnings at the time of his death, or had she any other source of income?" 19 An award for total dependency of a mother upon the countri- butions of her deceased son was sustained, even though brothers and sisters of the deceased were looking to the common fund to which the deceased contributed for support; the court saying: "For the purposes of this proceeding the facts show appellee to be the head of a family composed of herself and three minor children (the deceased being 19 years of age). No other person is claiming compensation from appellant, nor is any other person shown to bear the same relation to the deceased as appellee. The other minor children looking to their mother for support from the common fund, of which she was the custodian and disburser. No legal obligation rested on the deceased to support his minor brother and sister, but under the facts found appellee was legally and morally bound to support her minor children. Her means of so doing was the common fund placed in her hands, to which the deceased son contributed all his earnings. On the facts found there is no merit in the contention that appellee is not the proper person to maintain this proceeding and receive the compensation legally due from appellant." 20 "Where a mother received contributions from a minor son as well as partial support from her divorced husband, the court, in holding that she was a total dependant, said: "Total dependency exists where the dependent subsists entirely on the earnings of the workman; but in applying this rule courts have not deprived claimants of the rights of total dependents, when otherwise en- 19. Simms v. Lilleshall Colliery Co. Ltd., (1917), W. C. ft Ins. Rep. 218, 16 N. C. C. A. 147. 20. People's Hardware Co. v. Croke, 64 Ind. App. , 118 N. E. 314, 1918, 16 N. C. C. A. 179. 989 372 WORKMEN'S COMPENSATION LAW titled thereto, on account of temporary gratuitous services render- ed them by others, or on account of occasional financial assistance received from other sources, or on account of other minor consider- ations and benefits which do not substantially modify or change the general rule as above stated. * * * Applying this rule to the case at bar we cannot say that appellee was totally dependent on her deceased son, within the meaning of the workmen's compensation act, but on the facts found by the board we hold as a matter of law that she was partially dependent on him for support." 21 "A widowed mother without means who is supported by her son, partly by the wages of his employment and partly by the yield of his land is wholly dependent upon her son for support, within the meaning of the Minnesota Compensation Act. To constitute total dependency, within the meaning of the act it is not necessary that the dependent be supported wholly out of the wages of the employee's employment." 22 Where the putative father of an illegitimate unborn child made public his intentions to marry the pregnant mother of the child, but was killed four days prior to the consummation of his inten- tions it was held under the British Act that an award for partial dependency was erroneous, and an award of total dependency was ordered. 23 Where invalid parents were totally dependent upon their de- ceased son for support, the mere fact that a daughter, who had been paid for keeping house for them had, prior to the son 's death, ceased to exact compensation for her services, would not be sufficient to render them only partially dependent. 24 21. Bloomington-Bedford Stone Co. v. Phillips, 64 Ind. App. ,116 N. E. 850, 16 N. C. C. A. 181. 22. State ex rel. Crookston Lbr. Co. v. District Court of Beltramia Co., 131 Minn. 27, 13 N. C. C. A. 555, 154 N. W. 509. 23. Harris v. Powell Duffryn Steam Coal Co., Ltd., 9 B. W. C. C. 93, 13 N. C. C. A. 274. 24. State ex rel. Splady v. District Court of Hennepin County, 128 Minn. 338, 151 N. W. 123, 9 N. C. C. A. 580. 940 DEPENDENCY. 373 Mere gratuitous remittances by an aunt and a sister are not sufficient to prevent an award for total dependency of a mother and sister, otherwise wholly dependent upon the deceased. 26 A finding of total dependency of an invalid sister who was supported by deceased was sustained, although the evidence show- ed that she had a life interest in the land and house occupied by her deceased sister and that the property was worth about $2000.00, although there was no evidence pertaining to encum- brances or to the cost of upkeep and, as a matter of law, such find- ing was held not to be erroneous. 28 Under the Massachusetts Act, as amended, a dependent mother of a deceased fireman, killed in the employment of the city, was denied compensation on the ground that he was a public official and not a "workman, laborer or mechanic," within the meaning of the act. 27 373. Dependency of Parents, Grand Parents, and Other Near Relatives of Deceased Workmen. Dependency of other persons enumerated in the statute as dependents, but not conclusive- ly presumed to be dependents, must be determined upon the par- ticular facts as they existed at the time of the accident or death (as the statute may provide). The following cases illustrate the different conditions under which such persons may be deemed to be dependents under the various acts. An award to each of the parents of the deceased cannot be- sustained under the New York Act, and the award to the mother should 'be stricken out, for the award to parents cannot exceed 25 percent of the deceased's wages. 28 Where an award is made 25. Petrozino v. American Mutual T.iab. Co., 219 Mass. 498, 107 N. E. 370, 9 N. C. C. A. 594. 26. In re Buckley, 218 Mass. 354, 5 N. C. C. A. 613, 105 N. E. 979. 27. Devney v. City of Boston, 223 Mass. 270, 111 N. E. 788. 28. Intinl et ux. v. Stittvllle Canning Co., 181 N. Y. S. 890, 191 App. Div. 933, 6 W. C. L. J. 83; Skarpeletzo v. Counes * Rapt is Corp. 228 N. Y. 46, (1920), 126 N. E. 268, 5 W. C. L. J. 720. 941 373 WORKMEN'S COMPENSATION LAW to both parents under the Massachusetts Act, the relative extent of their dependency must be found, as an award made to them jointly is improper. 29 Evidence that about three years before the accident the deceased, an employee, 32 years of age, sent $45.00 of his wages to his father 84 years old, residing in Italy, and that about a year before the accident, the deceased sent $44, raises no legal presumption that payment was made to assist in the father's support or to establish dependency under a section of the Illinois statute providing: "If no amount is payable under paragraph (a) of this section and the employee leaves any widow, child, parent, grandparent or other lineal heir, to whose support he had contributed within four years previous to the time of his injury, a sum equal to four times the average annual earnings of the employee' shall be paid for an in- jury to the employee resulting in death. The court said: "The act as thus worded was in force at the time of Macro's death. It does not require that the surviving parent shall be dependent upon the deceased but it is sufficient if the deceased em- ployee leaves a parent to whose support he has contributed within four years immediately prior to the injury. Commonwealth Edson Co. v. Industrial Board, 277 111. 74, 115 N. E. 158. lit Bromwell v. Estate of Bromwell, 139 111. 424, 426, 28 N. E. 1057, it was stated: '"Where one pays money to another and there is no explanation of the cause of such payment, the ordinary pre- sumption is that the money was paid because it was due and owing, and not by way of a loan. * * * This is undoubtedly the rule where only business relations exist between the parties. But whe're other relations exist, there may doubtless be ground for presumptions of a different character. Thus, where a husband hands money to his wife, or a father to a child still dependent upon him, the pre- sumption naturally arising is that the act is in performance of legal obligation resting upon husband or father to maintain or support the wife or child.' The presumption as to payment of money, as shown by the above decision is one of fact rather than 29. In re Pagnoni, Mass. , 118 N. E. 948; 1 W. C. L. J. 806. 942 DEPENDENCY. 373 one of law a mere rule of evidence an inference to be drawn from the facts and circumstances of the particular case. We do not think that any legal presumption can be drawn from the fact of the payment to the father, 84 years old, by his son, 32 years old, that this payment was made to assist in the father's support rather then pay an ordinary debt for service rendered or for money loaned." 80 The fact that a mother had made a will in favor of her de- ceased son, who had contributed to her support, was not material in determining her claim to the benefit provided by the Work- man's Compensation Act, where there was no evidence that the will was the result of an agreement to give him all her property or of any agreement. 81 The minority of an employee in no way affects the question of the dependency of a parent on his earnings. 81 When a minor gives his wages to his father for the aid of him and his children, the father is thereby constituted an "actual dependent" within the meaning of the New Jersey Act. 88 The mere fact that a parent or grandparent receives money or gifts from a child and expends it, is not alone sufficient to es- tablish dependency. ' '** 30. Peabody Coal Co. v. Indus. Comm. 289 111. 330, 124 N. E. 566, 5 W. C. L. J. 27; In re Otto G. Jorgensen, 2 A. R. U. S. C. C. 75; In re Horace A. Pelletier , 2 A. R. U. S. C. C. 76. 31. Mississippi River Power Co. v. Indus. Comm., 289 111. 353, (1919), 124 N. E. 552, 5 W. C. L. J. 50. 32. Friscia v. Drake Bros. Co., 167 App. Div. 496, 153 N. Y. Supp. 392. 33. Colucci v. Edison Portland Cement Co., 93 N. J. L. 332, 108 All. 313, 5 W. C. L. J. 302; Turner v. Miller and Richards, 3 B. W. C. C. 305, 6 N. C. C. A. 242. 34. Birmingham v. Westlnghouse Electric & Mfg. Co., 180 App. Div. 48, 167 N. Y. S. 520; Mulraney v. Brooklyn Rapid Transit Co., 180 N. Y. S. 654, 190 App. Div. 774, 5 W. C. L. J. 731; Main Colliery Co. v. Davies, (1900) A. C. 358, 69 L. J. Q. B. 755; Atwood v. Conn. Light A Power Co., Conn. , (1921), 112 Atl. 269, Kelley v. Hoefler Ice Cream Co., App. Div. , (1921), 188 N. Y. S. 584. 943 373 WORKMEN'S COMPENSATION LAW A father contributing $12.00 a week to a family maintenance fund is not dependent upon a son who contributed a like sum. 35 A duty rests upon a minor to turn over his wages to his parents, and a correlative right to receive such wages rests in the parent. Therefore a promise by a son to send money to his mother for her support sufficiently constitutes dependency, even though he never had a pay day before his death affording him an opportuni- ty to consummate his purpose. Although under ordinary cir- cumstances "a, simple expression of purpose to contribute to sup- port, unaccompanied by any actual contribution after reasonable opportunity, would not constitute dependency." 38 Actual support of parents of the deceased within a year prior to death of the son is necessary to establish their dependency un- der the New York Act. 37 "Where a son has contributed to the support of his parents with- in four years prior to the time of his injury, the parents are en- titled to compensation under the Illinois Act, independent of the fact that they were not dependent upon him. 38 And the contributions of the minor need not exceed his own expenses, expended for him by his parents, since the parents are under a legal obligation to support him. 39 35. Klein v. Brooklyn Heights R. Co., 177 N. Y. S. 67, 188 App. Div. 509, 4 W. C. L. J. 432; Henry Pratt Co. v. Indus. Comm., 111. , (1920), 127 N. E. 754, 6 W. C. L. J. 296. 36. Freeman's Case, 233 Mass. 287, 123 N. E. 845, 4 W. C. L. J. 498; Alden Coal Co. v. Indus. Comm., 111. (1920), 127 N. E. 641, 6 W. C. L. J. 274; Parson v. Murphy, Neb- , 163 N. W. 847, B. I. W. C. L. J. 1100. 37. Profeta v. Retsof Mining Co., 177 N. Y. S. 60, 188 App. Div. 383, 4 W. C. L. J. 444. 38. Humphrey v. Indus. Commission of 111., 285 111., 372, 120 N. E. 816, 3 W. C.L. J.102; Mailers v. Indus. Bd. of 111., 281 111. 418, 117 N. E. 1056, 1 W. C. L. J. 522, 16 N. C. C. A. 175; Commonwealth Edi- son Co. v. Indus. Bd., 277 111. 74, 115 N. E. 158; Rockford Cabinet Co. v. Indus. Comm., 111. , (1920), 129 N. E. 142, 7 W. C. L. J. 280. 39. Metal Stampings Corp. v. Indus. Comm., 258 111. 528, 121 N. E. 258, 3 W. C. L. J. 258; In re Peters, 64 Ind. App. , 116 N. E. 848, 16 N. C. C. A. 183; Richardson Land Co. v. Indus. Comm., 111. , (1921), 129 N. E. 751. 944 DEPENDENCY. 373 Where a father is partially dependent upon a deceased son, he is entitled under the Kentucky Act, to his proportionate share of an award, even though the deceased left a totally dependent widow. 40 Where there is no evidence that the moneys contributed to the family were in excess of the amount required for deceased's board and expenses, the parents have not established their de- pendency under the Kansas Act. 41 Where a father earns sufficient to support his family after proper deductions are made for the contribution of a son, the father or family are not dependent upon the son, for the princi- ple of the act is compensation, and the question of dependency is one to be determined in each case. 42 A mother may maintain proceedings for the death of a son who contributed all his earnings to her, as head of the family, even though other children were also supported from the same fund. 4 * The Kansas Supreme Court in holding that parents are not de- pendent upon a child not legally adopted, said: "While the ex- pression 'lepral adoption' has become common, it is really tauto- logical. The full meaning would be expressed by the single word 40. Penn et. al. v. Penn., 183 Ky. 228, 209 S. W. 53, 3 W. C. L. J. 634; Robinson v. Anon, (1904), 6 W. C. C. 117. 41. McGarvie v. Frontenac Coal Co., 103 Kan. 586, 175 Pac. 375, 3 W. C. L. J. 46; Jedreiiiich v. James Shewan & Sons, 183 N. Y. S. Ill, (1920), 6 W. C. L. J. 480; Federal Mut. Liability Ins. Co. v. Indus. Comm., Cal. , 199 Pac. 796, (1921). 42. Moll v. City Bakery, 199 Mich. 670. 165 N. W. 649, 1 W. C. L. J. 391, 16 N. C. C. A. 186; Foskett v. A. J. Buschmann Co., 183 N. Y. S. 919, (1920), 6 W. C. L. J. 562; Schedrick v. Volney Paper Co., 184 N. Y. S. 424, (1920), 7 W. C. L. J. 103; Reidnick v. White Bros., - Del. , 109 Atl. 881, 6 W. C. L. J. 138. 43. Peoples Hardware Co. v. Croke, 64 Ind. App. , 118 N. E. 314, 1 W. C.L. J. 579, 16 N. C. C. A. 186; McLean v. Moss Bay Iron & Steel Co., (1910), 2 B. W. C. C. 282, C. A. 313, W. C. C. 402; Hodgson v. Owners of West Stanley, Colliery A. C. (H. L.) 229. 3 B. W. C. C. 260; Ford v. Oakdale Colliery Co., (1915), 8 B. W. C. C. 127; Kennerson v. Thames Towboat Co., 89 Conn. 367, 94 Atl. 372. L.H.A. 1916 A, 436; Halbeisen v. H. Koppers Co., N. J. (1920), 113 Atl. 921. 945 W. C. 60 373 WORKMEN'S COMPENSATION LAW 'adoption' because taking a child into a family and treating it as a natural offspring is not adoption. If, however, some legis- lative purpose must be found for qualifying the word 'adoption' by the word 'legal,' it must have been to exclude all grafting of children upon another family stock otherwise than by adoption proceedings conforming to the law governing the subject." 4 * An invalid father, who is supported by his minor son through his earnings, savings and borrowed money, is dependent upon the son, and the question as to whether the son's earnings exceeded the cost of his maintenance is immaterial. 45 Under the New Jersey Act a father is entitled to 25 per cent of the average weekly earnings of his son, upon whom he was actually dependent, despite the fact that there were brothers and sisters of deceased, for they were not legally dependent upon him merely because their father was assisted in supporting them, and the fact that the son leaves a widow does not preclude the father from his proportionate share. 46 But a later case holds that, where a sister had been supported out of wages of a deceased brother given to the family fund, she is an actual dependent, irrespective of the fact that the father was legally obligated to support her. 47 In considering the question whether or not the contributions of a son were part of the mother's income, the court said: "The argument of relator that the son's contributions were voluntary, 44. Ellis v. Nevins Coal Co., 100 Kan. 187, 163 Pac. 654, 16 N.C.C.A. 178. 45. Mahoney v. Gamble-Desmond Co., 90 Conn. 255, 96 Atl. 1025, 13 N. C. C. A. 315; In re Murphy, 218 Mass. 278, 105 N. E. 635, 5 N. C. C. A. 716; Stevenson v. Illinois Watch Case Co., 186 111. App. 418, 5 N. C. C. A. 858. 46. Havey v. Erie Ry. Co., 88 N. J. L. 684, 96 Atl. 995, 13 N. C. C. A. 319; Rev'g. 87 N. J. L. 444; Blanz v. Erie R. Co. 87 N. J. L. 367, 85 Alt. 1030, 3 N. C. C. A. 590; McFarland v. Cent. Ry. Co., 84 N. J. L. 435, 87 Atl. 144, 4 W. C. L. J. 592; Tischman v. Central R. Co., 84 N. J. L. 527, 87 Atl. 144, 4 N. C. C. A. 736; Quinlan v. Barber Asphalt Pav- ing Co., 84 N. J. L. 510, 87 Atl. 127, 11 N. C C. A. 715. 47. Connors v. Public Service Elect. Co., 89 N. J. L. 99, 97 Atl. 792, 13 N. C. C. A. 321; Driscoll v. Jewell Belting Co., Conn. , 114 Atl. 109, (1921\ 946 DEPENDENCY. 373 in the nature of gifts to his mother, is not entirely sound, as we should not lose sight of the probability that she had earned these contributions, and that the son was doing no more than his duty. But treating the payments as voluntary, even as gifts, the letter as well as the spirit of the compensation law compels the con- clusion that the legislature intended that such contributions should be considered as forming a part of the income of the par- tial dependent. The cases relied on by relator are not compensa- tion cases, and have little application. The question is not wheth- er the presents which a man receives are a part of his 'Income,' speaking in a general sense, but what was the legislative intent as to whether regular contributions by a workman to his mother should be considered as a part of her income in determining the amount of her compensation as a partial dependent. In subdivi- sion 17 of section 14 the 'income loss* of a partial dependent from the death is made the amount to be received in case it is less than the minimum of $6.50 per week. Clearly here the contributions of the workman are treated as 'income.' If such contributions are not income, there is no income loss. Again, the law clearly shows an intent that actual dependents shall receive more com- pensation than partial dependents. In this case, if relator 's con- tention is sustained, she would be entitled to greater compensa- tion than if she were an actual dependent." 48 A mother may be dependent upon an illegitimate son who lived with her and her husband and turned over his wages to his mother for her use, if it was reasonably necessary that she use the moneys for her support and medical attention, and this ir- respective of the fact that the husband was living, if his wages were insufficient to care for the mother." 48. State ex rel. Hayden v. District Court of St. Louis County, 133 Minn. 454, 158 N. W. 792, 13 N. C. C. A. 331. But see McDonald v. Great Atlantic and Pac. Tea Co., Conn. , (1920), 111 Atl. 65; 6 W. C. L. J. 525; Henry Pratt Co. v. Indus. Comm., 111. , (1920). 127 N. E. 754. 6 W. C. C. J. 296. 49. Smith v. National Sash and Door Co., 96 Kan. 816, 153 Pac. 533. 13 N. C. C. A. 332. 947 373 WORKMEN'S COMPENSATION LAW But under the English Act the husband of the mother of such illegitimate child is not considered a dependent of the child. 50 An unmarried sister, who had been actually supported by a brother during her pregnancy and after the birth of a child up until his death, was entitled to compensation as a partial depend- ent, as in view of her financial means and ability to earn a livelihood, she would require some assistance in the future. 51 In the absence of evidence to show that the deceased's infant brother was actually dependent upon him, or that his father was unable to support him, an award in favor of the brother was erroneous. 52 A half brother of deceased, who was living with his mother, but was dependent upon and receiving support from the deceased, was an actual dependent and entitled to compensation, irrespec- tive of the fact that the deceased's contributions were made to the mother for the support of the half brother. 53 The Texas Act makes brothers and sisters of the deceased bene- ficiaries thereunder. 54 Where the deceased left a minor daughter, his sister is not the next of kin, and can have no claim upon the death benefit, unless she was a member of the family partly dependent upon his earnings for support at the time of his death. 55 A sister who is supported by a brother under an agreement that she keep house cannot be deprived of compensation on the 50. McLean & Wife v. Moss Bay Iron & Steel Co., 2 B. W. C. C. 282, 6 N. C. C. A. 244. 51. Jackson v. Indus. Ace. Comm., 164 Wis. 94, 159 N.W. 561 13 N.C. C. A. 458. 52. Mulraney v. Brooklyn Rapid Transit Co., 190 App. Div. 774, 180 N. Y. S. 654, 5 W. C. L. J. 731. 53. O'Flynn's Case, (1919), 232 Mass. 582,. 122 N. E. 767, 4 W. C. L. J. 105. 54. American Indemnity Co. v. Zylonia, Tex. Civ. App. , (1919), 212 S. W. 183, 4 W. C. L. J. 315; Vaughan v. Southwestern Insurance Co., Tex. , 206 S. W. 920. 55. In re Murphy, 230 Mass. 99, 117 N. E. 794, 1 W. C. L. J. 211. 948 DEPENDENCY. 373 ground that she could support herself, she being a competent stenographer, but precluded from working because of ill health." The New York Act, limiting dependents to widows and next of kin, was held to include a mother and half brothers and sisters who were partially dependent upon the deceased." A niece who stayed with an uncle while attending school, re- ceiving board and clothes, was held not to be a dependent within the meaning of the Indiana Act." A sister who actually receives aid from her brother may be a dependent, de'spite the fact that she is at the time earning wages, for there is no standard set as to just when a person will be said to be earning sufficient to remove him^>r her from the catagory of dependents, if assistance is actually being received. So a stenographer earning $10.00 a week and receiving aid from her brother may be found to be partial dependent. 89 Where a sister is dependent upon the contribution of a brother to the family fund, she is, under the New York, Act, entitled to compensation upon his death, irrespective of the fact that the moneys she depended upon were paid into the family fund, or that there were also awards made to the father and mother for their proportionate dependency. 80 A sister-in-law, with whom the deceased had stopped and to whose support he had contributed, is not a dependent, for she is not included in the classes of relatives enumerated by the Cali- fornia Compensation Act. 91 56. In re Lanraan, 64 Ind. App. , 117 N. E. 671, 1 W. G. L. J. 185; Kenney v. City of Boston, 222 Mass. 401, 111 N. E. 47, 13 N. C. C. A. 461. 57. Bylow v. St. Regia. Paper Co., 179 N. Y. App. Div. 555. 166 N. Y. S. 874. 16 N. C. C. A. 152. 58. In re Lanman, 64 Ind. App. , 117 N. E. 671, 16 N. C. C. A. 156. 59. Miller v. Riverside Storage and Cartage Co., 189 Mich. 360, 155 N. W. 462, 13 N. C. C. A. 462; Hammill v. Fenn. R. Co., 88 N. J. L. 717. 13 N. C. C. A. 465; 96 Atl. 292. 60. Walz v. Holbrook, Cabot and Rollins Corp., 170 N. Y. APp. Div. 6, 13 N. C. C. A. 464; 155 N. Y. S. 703; In re Edward N. Johnston, 2nd A. R. U. S. C. C. 73. 61. Western Indemnity Co. v, O'Brien, 2 Cal. I. A. C. 419 (1916). 949 373 WORKMEN'S COMPENSATION LAW In holding that a half sister, who was also a sister by adoption, was not a member of the deceased's family nor his next of kin, the court said : ' ' The employee was not the head of a family. He maintained no household. He simply was a boarder in the family of another. He paid the board of the claimant for about 3 months before his death, in the same family. He was under no obliga- tion to support her. That duty rested upon her father who, as the board found, maintained a suitable home and repeatedly asked her to come to it. These circumstances show that she was not a member of the family of the employee. Family in its usual sense means 'the collective body of persons who live in one house, and under one head or m%nagement. ' Dodge v. Boston & Provi- dence E. Corporation 154 Mass. 299, 301. That is the significance ordinarily attributed to the word under the act. Kelley's Case, 222 Mass. 538. See Newman's Case, 222 Mass. 563, 568." As to "next of kin," the court said: "The claimant being the natural half sister and the sister by adoption of the deceased employee, manifestly was not his next of kin, because his adopting father, being the only living parent, stands in the relation of next of kin to the deceased employee. R. L. c. 154, Sec. 7, and Chapter 133, Sec. 1. The words 'next of kin' in the workmen's compensa- tion act refer to those who are nearest in degree. Kelley's Case, 222 Mass. 538, 541; Murphy's Case, 224 Mass. 592, 113 N. E. 283. The circumstance that, if there had been no adoption, or if the deceased had inherited property from his natural relatives through or from his mother, there might be a descent of that estate to some one other than the adopting father, is immaterial in this connection." The decree was modified by striking out all the words thereof and substituting therefor the words: "This case came on to be heard at this sitting and was argued by coun- sel, and thereupon, upon consideration thereof, it is ordered, ad- judged and decreed that the claimant was not a dependent upon the employee at the time of his decease, and that the case is dis- missed." In re Gould, 215 Mass. 480, 4 N. C. C. A. 60 (1913). 950 DEPENDENCY. 373 Superior Court Equity Rule 37, Edition of 1906. As so modified the decree was affirmed. 82 A niece, although profiting by contributions from her uncle, did not sustain the degree of relationship required of dependents by the New Jersey Act. It is not enough that one is dependent upon an employee, but he or she must come within the provisions of the statute designating who shall be dependents. 88 A parent may be dependent upon a minor child as well as up- on an adult child, and a contention that the deceased's parents were not entitled to compensation because the deceased left no surviving wife or child was overruled, the court saying: "The evident intent of the statute is to limit all of the compensation to 66f per cent, of the wages of the deceased, and to give com- pensation to the surviving wife, children, grandparents, or par- ents, who are dependent only if such compensation can be brought within the maximum percentage allowed. Each parent or grand- child is allowed 15 per cent of such wages during his dependency, if the allowance to the widow and children does not equal 66$ per cent, of the wages. This condition exists where there is no widow or children, and the Commission was justified in awarding compensation to the parents, even though the deceased was un- married at the time of his death." 84 A mother may be dependent upon a son, even though her hus- band is living, if the son actually contributes to her support. 85 Where a mother was not receiving support from her son but claimed compensation on the theory that he was under a legal obligation to support her, the court said: "The claimant was not dependent upon deceased at the date of the accident by reason 62. In re Cowden, 225 Mass 66, 113 N. E. 1036, 13 N. C. C. A. 46. 63. Berger v. Thomas Oakes & Co., 39 N. J. L. J. 296, 13 N. C. C. A. 468. 64. Frlscia v. Drake Bros. Co., 167 App. Pfv. 496, 153 N. Y. 8. 392, N. C. C. A. 581. 65. Krauss v. Geo. H. Fritz & Son, Inc., 87 N. J. L. 321, 93 Atl. 578. 9 N. C. C. A. 582; Garrabrant v. Morris & Somerset Elec. Co., 37 N. J. L. J. 208; Odgen City v. Indus. Comm.. Utah , (1920), 193 Pac. 857, 7 W. C. L. J. 249. 951 373 WORKMEN'S COMPENSATION LAW of any support rendered by deceased; she did not belong to the class conclusively presumed to be dependents. While a son is always under a moral obligation to support his indigent mother, he is under no legal obligation until proceedings under the stat- ute result in an order compelling him to do so. " As no such order had issued, the claim that deceased was under a legal obligation to support his mother was not sustained. 66 The fact that a father could maintain his family independent of the deceased's assistance, will not preclude a recovery where the son was actually assisting. 67 Where a son contributes to a father from moneys other than his earnings, the father is not a dependent upon his deceased's sons earnings. 68 A father, who recieves contriubutions from his son, may be par- tially dependent upon him, even though the father is contribu- ting to the support of a crippled brother. 69 As a general rule parents are dependent upon a son who con- tributes to their support, but the difficulty lies in determining to what degree they are dependent. 70 Where a son has been in the habit of regularly contributing to his parent's support, a temporary cessation of contributions, when the son changed places of employment, does not preclude an award, and a finding that had death not intervened the son would have continued his contributions was sustained by the evi- dence. 71 66. Pinel v. Rapid Ry. Transit System, 184 Mich. 169, 150 N. W. 897, 9 N. C. C. A. 584. 67. Howells v. Vivian & Sons, (1901), 50 W. R. 163, 85 L. T. 529, 18 L. T. R. 36, 4 W. C. C. 106. 68. Kelley v. Arroll & Co., (1905), 42 Sc. L. R. 695, 6 N. C. C. A. 243. 69. -Legget & Sons v. Burke, 9 Sc. L. T. 518, (1902), 6 N. C. C. A. 244. 70. Stevenson v. Illinois Watch Co., 186 111. App. 418, 5 N. U. C. A. 858; Day v. Sioux Falls Fruit Co., S. Dak., (1920), 177 N. W. 816, 6W. C.L. J. 216; Geo. A. Lowe v. Indus. Comm., Utah , (1920), 190 JPac. 934, 6 W. C. L. J. 216. 71. Turner v. Miller & Richards, 3 B. W. C. C. 305. 6 N. C. C. A. 245; 952 DEPENDENCY. 373 Under the Illinois .Act a dependent mother is entitled to the whole award, where tb deceased also leaves nondependent broth- ers and sisters." A father, who is in a workhouse, is not dependent upon a son who had not contributed to his support while detained there, though under an indirect obligation to do so, for there is no ac- tual dependency." Where a workman is capable of earning enough to provide for the necessities of one in his station of life, he is not a dependent upon a son who has been making contributions to his support, where it is not shown that the contribution were from the earn- ings of the deceased son. 74 A mother is a dependent of a deceased son who actually sup- ported her, irrespective of the fact that there were other children liable for her support. 78 Under the Washington Act, compensation to parents who are actually dependent upon a minor child is not limited to the time when the deceased should become of age. They are entitled to compensation as long as the dependency lasts. 78 Under the Michigan Act a claim may be made in the name of both the father and mother of "a deceased workman, and there need be no stipulation filed showing that the contributions were for the father's benefit alone. 77 Southern Surety Co. v. Hibbs, Tex. Ci/. App. , 221 S. W. 303, 6 W. C. L. J. 224. 72. Matecny v. Vierling Steel Works, 187 111. App. 448, 6 N. C. C. A. 247. 73. Rees v. Penrikyber Nav. Colliery Co., 6 W. C. C. 177, 1903, 1 K. B. 259, 6 N. C. C. A. 266; Trainer v. Addie & .ons' Collieries ltd., (104), 42 S. L. R. 85; 7 F. 115, 6 N. C. C. A. 266. 74. Sir William Arrol & Co. Ltd., v. Kelly, 7 F. 906, 42 Sc. L. R. 696, 6 N. C. C. A. 274. 75. Rlntoul v. Dalmeny Oil Co., Ltd., (1908), 1 B. W. C. C. 340, 6 N. C. C A. 275; Rogers v. Dow Chemical Co., Mich. Ind. Bd. , 6 N. C. C. A. 275. 76. Boyd v. Pratt, 72 Wash. 306, 130 Pac. 371, N. C. C. A. 6. 77. Buhse v. Whltehead & Kales Iron Works, 194 Mich. 413, 160 N. W. 657. 953 373 WORKMEN'S COMPENSATION LAW Where, under the New York Act, a grandmother was found to be actually dependent, compensation was awarded. 78 A foster mother who had never legally adopted the deceased employee, has been held not to be a dependent within the con- templation of the compensation acts. 79 Under some acts, neither the mother nor the putative father of an illegitimate child are entitled to compensation, especially where the mother is supported by her husband, with whom she is living. 80 A sister-in-law was not a dependent within the statutory classi- fication of dependents given in the California Act, prior to the amendment which took effect August 8, 1915. 81 "In an action under the Kansas "Workmen's Compensation Act (Gen. St. 1915, Sections 5903, 5905) by the father and mother of a deceased workman for compensation for his death, a finding of partial dependency is sustained by evidence that the parents did in fact depend in part on the son's earnings, so that they suffered injury by being deprived of what they had relied on ; and this is true although the father owns a home for which he paid $1,450, owns land from which he derives income of $400 or $500 a year owns shares of stock in a corporation on which he has paid $5,000, and is employed at a salary of $125 a month." 82 A brother over the age of 16 is not a dependent if physi- cally capable of earning his living at any kind of work. 83 The provision in the compensation act, limiting compensation to children until they reach an age designated by statute, has no application to a minor dependent, a sister of deceased, whose de- 78. Chase v. Fairbanks, Morse & Co., 4 N. Y. St. Dep. Rep. 369. 79. Re Leonardo Garcia Op. Sol. Dep. C. & L. 611; Weaver v. The As- sawaga, Co., 1 Conn. Comp. Dec. 331. 80. McLean v. Mass. Bay Hematite Iron & Steel Co., (1909), 100 L,. T. 811, 2 B. W. C. C. 282; In re Cowden, 225 Mass. 66, 113 N. E. 1036. 81. Western Indem. Co. v. O'Brien, 2 Cal. Ind. Ace. Com. 419. 82. Fennimore v. Pittsburg Scammoa Coal Co., Kans. , 164 Pac. 265, A 1 W. C. L. J. 611. 83. Morgan v. Butte Cen. Min. & Mill Co., Mont. , (1920), 194 Pac 496. 954 DEPENDENCY. 373 pendency was not founded upon the relationship of parent and child. 84 An aunt with whom deceased and his sister had lived since childhood, and who had property of her own, was not a member of deceased's family so as to entitle her to compensation, but from the evidence, deceased was a member of her household and not the master of the house. 85 Parents are dependent upon a son who contributed $824 to the family fund where his contributions exceeded the cost of his main- tenance, even though $900 of the family fund was used to pay off an indebtedness on the home. 88 Where the son's contributions do not exceed the cost of his maintenance, but he assists in paying off a debt of the family, the parents are not dependents. 87 Dependency of parents under the Utah Act is to be determined upon the facts as they existed at the time of the injury, although it need not be shown that contributions were made at the precise time of the injury, still mere voluntary gifts, promises or inten- tions in case it became necessary, will not establish dependen- cy. 88 The mere fact that a daughter never worked, she being 18 years of age will not constitute her a dependent. 89 Where a son was managing a mother's business, not receiving any pay from her, nor contributing to her support, the fact that she wrote him to come to another state to work for her to help her, and that he intended to do so as soon as he earned enough money to 84. Haeselman v. Travelers' Insurance Co., Colo. , 185 Pac. 343, 5 W. C. L. J. 153. 85. Stafford's Case, 130 N. E. 109, Ma's. , (1921), 86. Milwaukee Basket Co. v. Indus. Comm., Wis. , (1921), 181 N. W. 308. 87. Wisconsin-Minn. Light & Power Co. v. Indus. Comm., Wis. , (1921), 181 N. W. 311. 88. Globe Milling Co. v. Indus. Comm., Utah , (1920), 193 Pac. 642. 7 W. C. L. J. 245; Hancock et al. v. Indus. Comm., Utah , (1921), 198 Pac. 169. 89. In re Mrs. McGaughey, 2nd A. R. U. S. C. C. 74; In re Addi- son Ellison, 2nd A. R. U. S. C. C. 74. 955 374 WORKMEN'S COMPENSATION LAW go, but was killed before going, was not sufficient to establish de- pendency. 90 Brothers and sisters, not being dependents under the New York Act, cannot, in view of the statute making the compensation act the only authority for recovery in death cases, resulting from in- dustrial accidents, proceed in an action at law. 91 374. What Children may be Dependents When the word "child" or "children" is used in a statute, which does not define the meaning of such word nor use it in a special sense, it is usually held to include adopted children, 92 posthumous children, 93 and sometimes, 94 though not generally, 95 illegitimate children. It may, 96 or may not, 97 include adults, depending upon the copteiit and subject matter of the statute. Grandchildren do not come within such designation, 98 unless it appears that the word was used in a broad sense, as synonymous 90. Alden Coal Co. v. Indus. Comm., 111. , (1920), 127 N. B. 641, 6 W. C. L. J.274. 91. Shanahan v. Monarch Engineering Co., N. Y. App. Div. , 114 N. B. 795, B 1 W. C. L. J. 1213. 92. Gray v. Holmes, 57 Kan. 217, 45 Pac. 596; Power v. Hattey, 85 Ky. 671, 4 S. W. 683; In re Walworth's Estate, 85 Vt. 322, 82 Atl. 7, 37 L. R. A. (N. S.) 849. 93. State ex rel. v. Soale, 36 Ind. App. 73, 74 N. E. 1111; Nelson v. Galveston, H. & S. A. R. Co., 78 Tex. 625, 14 S. W. 1021, 11 L. R. A. 691, 22 Am. St. Rep. 89. 94. Galveston, H. & S. A. R. Co., v. Walker, 48 Tex. Civ. App. 52, 106 S. W. 705. 95. Williams v. Witherspoon, 171 Ala. 559, 55 So. 132; Jackson v. Hocke, 171 Ind. 371, 84 N. E. 830; Truelove v. Truelove, 172 Ind. 441, 86 N. E. 1018, 27 L. R. A. (N. S. ) 220, 139 Am. St. Rep. 404; Lynch v. Knooo, 118 La. 611, 43 So. 252, 8 L. R. A. (N. S.) 480, 10 Am. Gas. 807, 118 Am. St. Rep. 391; Bowerman v. Lackawanna Min. Co., 98 Mo. App. 308, 71 S. W. 1062; Gritla's Case, Mass. , (1920), 227 N. E. 889, 6 W. C L. J. 319. 96. Sheffield v. Franklin, 151 Ala. 492, 44 So. 373, 12 L. R. A. (N. 8.) 884, 15 Ann. Cas. 90, 125 Am. St. Rep. 37. 97. Griffith v. Griffith, 128 Ga. 371, 57 S. E. 698; Schleiger v. Northern Ter. Co., 43 Ore. 4, 72 Pac. ?24. 98. Starrett v. McKim, 90 Ark. 520, 119 S. W. 824; Walker v. Vicks- 956 DEPENDENCY. 374 with a word of larger import, such as "issue" or "descendants". * Adopted children are dependents of the adopting parents with- in most of the acts, 1 provided the requirements of adoption were complied with sufficiently. 2 But a child adopted by the widow of deceased, after his death, is not a dependent of deceased, entitling it to compensation upon remarriage of the widow. 8 And it is not comtemplated that one may adopt children for a third person ; hence, the adopted child of a daughter of deceased is not his heir or next of kin, and is not entitled to compensation as his dependent. 4 And where a child was adopted under an agreement that the mother contribute to its support, but the only contribution made by the mother was at the time of adoption, and the child was being supported by the adopting parents, it was not a dependent of its mother. 5 Illegitimate children are not included within the beneficial provisions of the Compensation Acts of Maryland, 8 Illinois, and burg, S. & P. R. Co., 110 La. 718, 34 So. 749; Clements v. Maury, 50 Tex. Civ. App. 158, 110 S. W. 185; Ross v. Martin, 104 Tex. 558, 140 8. W. 432; Harrington v. Gibson, 109 Ky. 752, 60 b W. 915. 99. Philips v. Lawing, 150 Ala. 186, 45 So. 494; Keeney v. McVoy. 206 Mo. 42, 103 S. W. 946; Wilkims v. Briggs, 48 Tex. Civ. App. 596, 107 S. W. 135, 140. 1. Yohe v. Erie R. Co., 36 N. J. L. J. 154, 9 N. C. C. A. 589; Winkler v. New York Car Wheel Co., 181 App. Div. 239, 168 N. Y. Supp. 826, 1 W. C. L. J. 699, 16 N. C. C. A. 149; In re Yeople, 182 App. Div. 438, 169 N. Y. Supp. 584, 1 W. C. L. J. 1135, 16 N. C. C. A. 148; Bugg v. Mitchell. 48 Sc. L. R. 606, (1911), S. C. 705, (1911), 1 Sc. L. T. 293, 4 B. W. C. C. 400, 6 N. C. C A. 263. 2. Yohe v. Erie R., Co. 36 N. J. L. J. 15 i, 9 N. C. C. A. 689; Ellis v. Nevins Coal Co. Kan , 163 Par. 654. A 1 W. C. L. J. 609. 3. State ex rel. v. District Court of Ramsey County, 133 Minn. 265. 158 N. W. 250, 13 N. C. C. A. 276. 4. Winkler v. New York Car Wheel Co., 181 App. Div. 23. 168 N. Y. Supp. 826, 1 W. C. L. J. 699, 16 N. C. C. A. 149. 5. Bugg v. Mitchell, 48 Sc. L. R. 606, (1911), S. C. 705, (1911), 1 Sc. L. T. 293, 4 B. W. C. C. 400, 6 N. C. C. A. 263. 6. Scott v. Independent Ice Co., 135 Md. 343, 109 All. 117. 5 W. C. L. J. 702. 957 374 WORKMEN'S COMPENSATION LAW New York; but are included under other acts when they were living with, and dependent upon the deceased father, 7 or were receiving their support from him at the time he met with the fatal accident. 8 And such a child is held to be dependent, although the con- tributions made by the father for his support were not actually expended in his behalf. 9 A child 13 years of age living apart from her father must be actually dependent, and the father must be under a legal obliga- tion to support her, before she will be considered a dependent under the Indiana and Michigan Acts. 10 A child over 18 years of age, married and living with her blind husband, she herself being totally blind and therefore physically incapacitated from earning, is entitled under the Massachusetts Act to an equal share of the death benefit with the surviving widow. 11 A daughter of a deceased servant's widow, not being a child of the deceased, is not entitled to compensation, even though she was a member of deceased's family. 12 7. Murrell v. Indus. Commission, 291 111. 334, 126 N. E. 189, 5 W. C. L. J. 673, (1920); Bell v. Terry & Tench Co., 177 App. Div. 123, 163 M. . S. 733, 16 N. C. C. A. 147. 8. Piccinim v. Conn. Light & Power Co., 106 Atl. 330, 93 Conn. 423, 4 W. C. L. J. 18; Scott's Case, 117 Maine 436, 104 Atl. 794; Roberts v. Whaley, 192 Mich. 133, 158 N. W. 209, L. R. A. 1918 A., 189, 13 N. C. C, A. 191; Schofield v. Orrell Colliery Co., 100 L. T. 104, 2 B. W. C. C. 301; Bowhill Coal Co. v. Neish et al., 46 Sc. L. R. 250; Taylor v. Powell Steam Coal Co., Ltd., 9 B. W. C. C. 477, 13 N. C. C. A. 271; Grit- ta's case, Mass. , (1920), 127 N. E. 889, 6 W. C. L. J. 319. Mitchell v. Fairchild-Gilmore W. Co., Cal. Ind. Comm. , 6 N. C. C. A. 262; Gour- lay v. Murray, 15 Sc. L. T. 1029, 6 N. C. C. A. 262. 9. Bowhill Coal Co. v. Neish, 46 Sc. L. R. 250, 6 N. . C. A. 268. 10. Schwartz v. Gerding & Auman Bros., Ind. App. , j.21 M. E. 89, 3 W. C. L. J. 282; Roberts v. Whaley, 192 Mich. 133, 158 N. W. 209, 13 N. C. C. A. 191. 11. Gavaghan's Case, 232 Mass. 212, 122 N. E. 5. 298, 3 W. C. L. J. 643. 12. Holmberg's Case. 231 Mass. 144, 120 N. E. 353, 2 W. C. L. J. 89. 958 DEPENDENCY. 374 Married daughters not dependent upon a deceased father, but to whom he had made contributions, are, under the Illinois Act, entitled to compensation on his death. 18 Support of an incapacitated daughter 22 years old, within four years prior to a fatal accident, is sufficient under the Illinois Act to entitle the daughter to compensation upon the death of the father. 14 Where a girl had been given to her grandparents by an agree- ment in writing" when her parents separated, and she lived with them for over fifteen years, she was entitled as a dependent of her grandfather to be compensated under the workman's compensa- tion act, despite the fact that the parents had reunited. The evi- dence showed that the mother was lacking in love for the child, and that she would not be at home with her parents, since her real home was with her grandmother. 15 A grown daughter, though capable of earning her own living, may be found to be a dependent of her father, if she was keeping house for him and at the time of his death actually looking to him for and receiving her support from him. 1 " An illigitimate child of deceased's daughter cannot be said to be a grandchild, within the meaning of the statute making grand- children of deceased his dependents, even though the child was living with the family of the deceased. The New Jersey statute 13. Peabody Coal Co. v. Indus. Bd. of 111., 281 111. 579, 117 N. E. 5*83, 1 V. C. L. J. 524, 16 N. C. C. A. 143. 1.4. Mechanics Furniture Co. v. Indus. Bd. of 111., 281 111. 530, 117 N. E. 98ri, 1 W. C. L. J. 529, 16 N. C. C. A. 143; In re Wm. A. Gentry, 2nd A. R. U. S. C. C. 72; In re Edward N. Johnston, 2nd A. R. U. 8. U. C. 73. 15. In re Yeople, 182 App. Div. 438, 169 N. Y. Supp. 584; 1 W. C. L,. J. 1135, 16 N. C. C. A. 148. 16. Simms v. Lilleshall Colliery Co., Ltd., (1917), W. C. & Ins. Rep. 218, 16 N. C. C. A. 146; Moyes v. William Dickson Ltd., 7 F. 386, 42 8. L. R. 319, (1905), 6 N. C. C. A. 255; In re Herrick, 217 Mass. Ill, 104 N. E. 433, 4 N. C. C. A. 544; Marsh v. Boden. 7 W. C. C. 110. (1905), 6 N. C. C. A. 275. 959 374 WORKMEN'S COMPENSATION LAW makes provision for illigitimate children, but not for illigitimate grandchildren. 17 Prior to the amending laws of 1915, to the Minnesota Act, a child over 18 years of age, though supported by the deceased, was not a dependent ; but subsequent to the amendment a widow- ed daughter over 30, deriving part of her support from her father, is a partial dependent and entitled to claim compensation, though she is not physically or mentally incapacitated. 18 "Where a mother had contributed to the support of her married son and his family, the court, in denying the son's claim for com- pensation, said: "An adult son, married and living with his wife and children, separate from his mother, is not a member of such mother's family within the meaning of the Workmen's Compen- sation Act (Kan. L. 1913, c. 216, Sec. 4.)." And in paragraph 2, of the syllabus of this case it is stated: "It is not the purpose or policy of the statute to continue compensation to a dependent minor after reaching the age of 18 years unless physically and mentally incapable of earning wages, or to award compensation to an adult married son, the head of a family living separate from that of his mother, who from her wages as an employee made small contributions towards his support, he being physically and men- tally capable to earn, and actually earning, fair wages." 19 The fact that a father lived with his married daughter, paid board and contributed otherwise, did not make her dependent upon him. The daughter was dependent upon her husband, and if there was any dependency upon the father it was the husband who was dependent. 20 17. Splitdorf Electrical Co. v. King, 90 N. J. L. 431, 103 Atl. 674, 16 N. C. C. A. 151. 18. State ex rel. Maryland Gas. Co. v. District Court of Ramsey County, 134 Minn. 131, 158 N. W. 798, 13 N. C. C. A. 263; In re Carter, 221 Mass. 105, 108 N. E. 911, 9 N. C. C. A. 579. 19. Taylor v. Sulzberge r & Sons Co., 98 Kan. 169, 157 Pac. 435, 13 N. C. C. A. 265. 20. Montgomery v. Blows, (1916), 1 K. B. 899, 85 L. J. K. B. 794, (1916), W. C. & Ins. Rep. 89, 114 L. T. 867, 32 T. L. R. 387, 60 Sol. J. 427, 13 N. C. C. A. 268. 960 DEPKM'I \. V. 374 Where a father lias abandoned his wife and children, t'le mother olitains a divorce and. the custody of the children ha* him jivrn to a person other than the father, it cannot he said that the ehildren are living with tin- father within the conclusive statu- tory presumption that children living with the parent are depen- dent upon such parent. The legal obligation of the parent to sup- port the child is insufficient to bring the child within the statu- tory presumption; and to establish dependency of sneli child- ren, actual support must be shown.- 1 Under a statute making illegitimate children presumptively de- pendent when they are part of the decedent's household at the cime of his death, an illegitimate posthumous child is considered a part of decedent's household at the time of his death. 22 Where the father of the unborn child of an unmarried wompn publicly expressed his intention to marry the woman and four days prior to the marriage, was killed, it was held that the child wat* en- titled to an award for total dependency. 28 A posthumous child has been held to be dependent upon its father, where the father had been contributing to the mother's support, although at the time of the accident he was not so con- tributing. 24 A daughter 16 years old, living apart from her father and earn- ing $45.00 a month, is a dependent, where the father was actually supporting her. 25 Under the English Act, children living apart from their father and not receiving their support from him, are not considered de- pendents. 26 21. Northwestern Iron Co. v. Indus. Comm., 154 Wis. 97, 142 N. VV. 271, 3 N. C. C. A. 670. 22. Klimchak v. Ingersoll Rand Co., 39 N. J. L. J. 275, 13 N. C. C. A. 274, Williams v. Ocean Coal Co., Ltd., (1907), 9 W. C. C. 44. 6 N. C. C. A. 260. 23. Harris v. Powell Duffeyn Steam Coal Co., Ltd.. 9 B. W. C. C. 93, 13 N. C. C. A. 274. 24. Queen v. Clark, (1906), 2 I. R. 135; 4 Ir. L. T. R. 19, 6 N. C. C. A. 260. 25. In re Hughes, Ohio I. C, (1914), 6 N. C. C. A. 256. 26. Pollad v. Great Northern Ry. Co., (1912), W. C. it Ins. Rep. 379, N. C. C. A. 260. 961 W. C- 61 374 WORKMEN'S COMPENSATION LAW Posthumous illegitimate children have been held entitled to compensation as dependents, were the putative father recogniz- ed the paternity and arranged to marry the mother. 27 A child by a former marriage is entitled to an equal division of an award with the surviving widow. 28 But where after the death of the step-father the child goes back to live with his natural father who had been divorced, and the father assumes the obligation of caring for him, the dependency ceases and he becomes a dependent of his natural father, the same rule applying in cases of divorce where custody had been given to the mother. 29 Dependent step-children, who have been supported by the de- ceased, are included within the word "children" in the New Jers- ey Act. 30 Under the Kentucky Code, Supp. 1913, Sec. 2477 m. 16, provide ing that a child under 16 years of age -is conclusively presumed to be wholly dependent upon a deceased employee, and that step- parents shall be regarded in the act as parents, the effect of the latter provision is to substitute a step-parent for an actual parent so that a child whose natural father was killed, but who at the time was living with her stepfather, is not entitled to share in the compensation. 31 The Supreme Court of Kansas, in construing the Kansas Act, said: "Dependents" means such members of the Workman's family as were wholly or in part dependent upon the workman at the time of the accident. And 'members of a family' for the purpose of this Act means only widow or husband, as the ease may be, and children; or if no widow, husband or children, then 27. Orell Colliery Co. v. Schfield, (1909), 2 B. W. C. C. 294, 6 N. C. C. A. 261; Secor v. Security Const. Co., 1 Cal. I. A. C. Bull, 6 N. C. C. A. 261; Lloyd v. Powell Duffryn Steam Coal Co., Ltd., (1914), A. C. 733, 7 B. W. C. C. 330, 9 N. C. C. A. 588. 28. Coakley v. Coakley, 216 Mass. 71, 4 N. C. C. A. 508. 29. In re John David Anderson, 3rd A. R. ~T. S. C. C. 97; Gold Dredg- ing Co. v. Indus. Comm., 194 Pac. 1. 30. Newark Paving Co. v. Klotz, N. J. L. , 91 Atl. 91, 6 N. C. C. A. 263. See Wash. Act, 1921 Am. 6604-3. 31. Hoover v. Cent. Iowa Fuel Co., la. , (1920), 176 N. W, 945, 5 W. C. L. J^ 840. 962 DEPENDENCY. 374 parents and grandparents; or if no parents or grandparents, then grand-children ; or if no grandchildren, tlicii brothers, and sisters. In the meaning of this section parents include step- parents, children include step-children and grand-children include step-grandchildren, and brothers and sisters include step-brothers and step-sisters, and children and parents include that relation by legal adoption. '-' Posthumous children in some jurisdictions have been held not to be dependents of deceased workmen. 83 Where an employee's minor son enlisted in the marines and his four-year term expired after he reached his maturity he voluntarily emancipated himself with his father's consent. There was no legal obligation on the father to support him and he was therefore not entitled to compensation as dependent on the death of the father. 34 Divorce does not effect the father's liability for support of a child in the absence of proof of the son's ability to support him- self and of his emancipation, even though the son attained his majority pending the proceedings. 85 "Where an employee was living in adulterous relations with an undivorced wife of another and voluntarily supporting a child o hers by her undivorced husband, it was held that the mothers wrong could not be implied to the child and therefore? the child was entitled to compensation as his dependent. 80 32. Smith v. National Sash & Door Co., 96 Kan. 816, 153 Pac. 533. 33. Villar v. Gilbey, (1907), A. C. 139; William v. Ocean Coal Co., (1907), 97 L. T. 150, 9 W. C. C. 44; Day v. Markham, (1904), 6 W. C. C. 115; Secor v. Security Const. Co., 1 Cal. Ind. A. C. (Part II) 93. 34. Iroquois Iron Co. v. Indus. Comm. 111., 111. , 128 N. E. 289, 6 W. C. L. J. 646- Note; For cases of children conclusively presumed to be dependent upon deceased, see "Presumption Relating to Dependency." Section 368 ante. 35. Panther Creek Mines v. Indus. Comm., 111. , (1921), 130 N 321; Auburn & Alton Coal Co. v. Indus. Comm.. 111. , (1921), 130 N. B. 322. 36. Moore Shipbuilding Corp. v. Indus. Comm., Cal , (1921), 196 Pac. 257. 963 375 WORKMEN'S COMPENSATION LAW 375. Alien Dependents, and Constitutionality of Provision Pertaining to Aliens. The New York Act provides for payment to aliens not residents of the United States, the same amount pro- vided for residents, except that dependents in any foreign country shall be limited to surviving wife and child or children or, in the absence of those, to father or mother or grandparents, whom the employee has supported for a year prior to the accident. Under the provisions of this Act, an award of 25% to each parent was an error, and should be modified by striking out the award in favor of the mother, as the award to both parents cannot exceed 25 %. Where alien non resident parents or wife have not been heard of or from within three or four years, there must be actual proof that they are alive. The rule that one is not presumed to be dead until after he has not been heard of for seven years cannot be invoked to establish the presumptive fact that the wife or parents are living. 38 Alien dependents of a deceased servant, subjects of a friendly foreign nation are not excluded from the benefits of the Workmen's Compensation Acts. But the question of dependency is one of fact, and where a wife owns a lot with a good house upon it for the family to live in, it cannot be said that she is totally dependent upon her husband's wages. 39 Upon proof of dependency an alien wife is entitled to compen- sation on the death of her husband, provided she relied upon him 37. Skarpeletzos v. Counes & Raptis Corp., 228 N. Y. 46, 126 N. E. 268, 5 W. C. L. J. 720; Casella v. McCormick, 180 N. Y. App. Div. 94, 167 N. Y. S. 564, 16 N. C. C. A. 219; Intini et. ux. v. Stittville Canning Co., 181 N. Y. S. 890, 191 App. Div. 933, (1920), 6 W. C. L. J. 83. 38. Keystone Steel & Wire Co. v. Indus. Comm., 289 111. 587, 124 N. E. 542, 5 W. C. L. J. 40. 39. In re McDonald, 229 Mass. 454, 118 N. E. 949, 1 W. C. L. J. 808, 16 N. C. C. A. 87, 210; In re Derinza, 229 Mass. 435, 118 N. E. 942, 1 W. C L. J. 795, 16 N. C. C. A. 87, 210; In re Mooradjian, 229 Mass. 521, 118 N. E. 951, 1 W. C. L. J. 813, 16 N. C. C. A. 215, 920; Victor Chemical Works v. Indus. Bd., 274 111. 11, 113 N. E., 173; Vujic v. Youngstown Sheet & Tube Co., 220 Fed. 390. (D. C.) ; Eretza v. Ft. Montgomery Iron Works, (1920), 184 N. Y. S. 789, 7 W. C. L. J. 98; In re Pagnoniee, Mass. , 118 N. E. 948, 1 W. C. L. J. 806. 964 DEPENDENCY. 375 for support, but this is a fact to be prove:!, ;ini:n.M'KXCY. 376 376. Illegal and Divorced Wives. Where a husband and wife were living apart after an interlocutory judgment of divorce for the wife, which contained no provision for her support, it was held that they were living apart by agreement not providing for the wife's support, so that, under section 175, tin- husband was not personally liable for her support, and she was not enti- tled to the presumption of total dependency created by the Cali- fornia Workmen's Compensation Act, Sec. 14, Sub'd. A. (I).* 8 A wife who is not living with her husband, but who is receiving from him money paid pursuant to a decree awarding her separate maintenance, is within section 14, of the California Act, declaring that a wife shall be conclusively presumed dependent for sup- port upon a husband with whom she was living or for whose support such husband was legally liable. 84 In some states a common-law marriage is sufficient to support an award to one claiming dependency as* the wife of deceased. 55 But the claim of a woman as dependent cannot be allowed on a mere showing that she was living with deceased as his wife, there being no legal marriage; 56 nor upon proof that she had sustained adulterous relations with the deceased. 57 A woman who in good faith lived with an employee as his law- ful wife, believing that their marriage license in itself constituted marriage, is entitled to compensation under the California Act, 53. London Guarantee & Accident Co., Ltd., v. Indus. Ace. Comm., Cal , (1919), 184 Pac. Rep. 864, 5 W. C. L. J. 20. 64. Continental Casualty Co. v. Pillsbury, Cal. , (1919), 184 Pac. C58, 5 W. C. L. J. 6. 55. Voshall v. Kelley Island L. & T. Co., 13 Ohio L,. R. 278, 60 Ohio L. Bui. 361. 13, N. C. C. A. 199; In re Morris, (Ohio Ind. Comm.), 13 N. C. C. A. 199; Meghan v. Edward Valve & Mfg. Co., 64 Ind. App. . 117 N. E. 265, 16 N. C. C. A. 86; Brown v. Long Mfg. Co., Mich. , (1921), 182 N. W. 124. 56. Scott v. Independent Ice Co., 135 Md. 340, 5 \V. C. L. J. 702, 109 Atl. 117. 57. Illinois Steel Co. v. Industrial Comm., 290 111. 694, 125 N. E. 252, 5 W. C. L. J. 199; Meehan v. Edward Valve & Mfg. Co., 64 Ind. App. , 117 N. E. 265, 16 N. C. C. A. 85. 967 377 WORKMEN'S COMPENSATION LAW 1917, Sec. 14, notwithstanding a statute requiring solemnization of marriage. 58 It is held in other jurisdictions that an honest but mistaken belief that the claimant was married to the deceased employee does not constitute her a dependent. 59 A divorced wife who was forbidden by the decree to marry within a year, cannot constitute herself the lawful wife of a third party within the forbidden time, within the meaning of the com- pensation act. Such marriage is void from its inception, and does not even constitute a common law marriage. 60 A divorced wife, who is supporting herself by her own efforts, cannot be said to be a dependent, for dependency can not be found where there was simply a legal obligation on the part of the husband to support his wife. There must be a reasonable probability that such obligation will be fulfilled. 61 377. Desertion and Non-Support. To constitute desertion within the Iowa Code, Supp. 1913, Sec. 2477 M16, (c) (1). which creates a conclusive presumption that the surviving spouse is wholly dependent upon the deceased employee, unless she will- fully deserted him, there must be cessation of the marriage rela- tion, intent to desert, and absence of consent or misconduct upon the party alleged to have been deserted. Therefore, where a husband is unable to support his wife, her separation, with his consent, to earn wages, does not constitute desertion. 62 58. Femescal Rock Co. v. Indus. Ace. Comm., Cal , (1919), 1SS3 Pac. 447, 4 W. C. L. J. 469. 59. In re Jones, (Ohio Ind. Comm.,), 6 N. C. C. A. 250; Meton v. State Indus. Ins. Department, 104 Wash. 652, 177 Pac. 696, 3 W. C. L. J. 541; Armstrong v. Indus. Comm. of Wis., 161 Wis. 530, 154 N. W. 844, 13 N. C. C. A. 200; Salvador v. Interborough Rapid Transit Co., 3 N. Y. St. Ind. Bull. 10, 5 N. Y. St. Dep. Rep. 438, (1915), 13 N. C. C. A. 203. 60. Hall v. Ind. Comm. of Wis., 166 Wis. 364, 162 N. W. 312, 16 N. C. C. A. 77; Williams v. Williams, 46 Wis. 464, 13 N. C. C. A. 202; Lanham v. Lanham, 136 Wis. 360; Armstrong v. Ind. Comm. 161 Wis. 530. 61. Sweet v. Sherwood Ice Co., 40 R. I. 203, 100 Atl. 316, 16 N. C. C. A. 85. 62. James Black D. G. Co. v. Iowa Indus. Comm., Iowa, (1919), 173 N. W. 23, 4 W. C. L. J. 379. 968 DEPENDENCY. 378 A deserted wife, who, subsequent to the desertion, has been guilty of adultery, is not a dependent of her husband within the meaning of the Maine Act; desertion under the Act having its usual meaning in connection with marital relations. 63 A wife who deserts her husband, or has been deserted by her husband, and who does not receive support from him, is not a de- pendent. 64 But where the wife was actually destitute of funds, it was held that she was dependent upon her husband's earnings, even though he had deserted her and did not support her. 68 Children deserted by their father, and not supported by him. are not presumed to be dependent. 66 Desertion and non-support of chidren by a father for three years, followed by an agreement to contribute from his earnings, with which he was prevented from complying, because of the accident, makes dependency a question of fact for the arbitration conui.it tee to decide.* 7 Where a workman deserts his wife and a minor child, whom he has taken into his family but never adopted, and he does not contribute to their support for several months prior to his death, the minor child is not entitled to prevail in a claim of depend ency. 68 378. Marriage or Remarriage of Dependent. Where there is no provision made in the act to the effect that remarriage of a deceased workmen's dependent widow will terminate further 63. Scott's Case, 117 Me. 436, 104 All. 79t, 3 W. C. L. J. 49. 64. Batista v. West Jersey & Seashore R. Co., 85 N. J. L. 801, 88 All. 954, 4 N. C. C. A. 781; Devlin v. Pelaw-Main, Colliery Co., 5 B. W. C. C. 349, (1912), W. C. R. 225; Lindsay v. M'Glashen & Sons Ltd., 1 B. W. C. C. 85, 6 N. C. C. A. 260; Miller v. Pub. Serv. R. Co., 84 N. J. L. 174,85 Atl. 1030; Polled v. Great Western Ry. Co., (No. 2), (1912), 5 B. W. C. C. 620 C. A. 65. Sneddon v. Robert Addie & Sons' Collieries, Ltd.. 12 Sc. L. T. 229, 6 N. C. C. A. 250. 66. Lee v. Bessie, (1912), W. C. & Ins. R. 57. 6 N. C. C. A. 259. 67. Bobbie v. Egypt & Levant S. S. Co., (1913). W. C. & Ins. Rep. 76, 6 N. C. C. A. 259. 68. Mahoney v. Gamble Desmond Co.. 90 Conn. 255. 96 Atl. 1025. 969 378 WORKMEN'S COMPENSATION LAW payments, remarriage will not affect the payment of benefits, and an award is absolute and not conditional. 69 The ascertainment of dependency is made as of the time of the accident, therefore, in the absence of statutory provisions to the contrary, subsequent intervening events will not deprive the de- pendent of compensation. Remarriage after compensation has been awarded, but before termination of payments, does not de- prive the party from receiving further payments under the allow- ance. 70 Where the statute does not specifically mention marriage as a condition of terminating payments, the marriage of a dependent sister does not disentitle her to further payments. 71 Where the New York State Industrial Commission ordered the employer to pay to the state insurance fund the commuted value of an award to the widow and children of a deceased employee, and the original award directed payment to the widow during widowhood, and to the children until they arrived at the age of 18 years, the court, in reversing the award, said: "The order appealed from which required the deposit in the state fund by the employer and self insurer of the money to meet the future payments of an award was properly reversed by the appellate di- vision, for the reason that section 27 of the Workmen's Compen- sation Law (Consol. Laws, c. 67), which requires such deposit, does not apply to an award made to a widow. It does not contem- plate and fails to provide for weighing or determining the con- tingency of the widow's remarriage which would bring about a cessation of the payments to her." 72 69. Newton v. Rhode Island Co., R. I. , 105 Atl. 363, (1919), 3 W. C. L. J. 527; Wangler Boiler Co. v. Indus. Comm., 287 111. 118, 122 N. E. 366. 3 W. C. L. J. 617; Adleman v. Ocean Ace. & Guar. Co., 130, Md. 572, 101 Atl. 529. See Utah Act 1921 Am., 3140 (5). 70. Bott's Case, 230 Mass. 152, 119 N. E. 755, 16 N. C. C. A. 864; Hanson v. Brann & Stewart Co., 90 N. J. L. 444, 103 Atl. 696, 16 N. C. C. A. 864; The New Jersey's Act has been amended so as to terminate Ijayments in the event of remarriage. 71. Adleman v. Ocean Accident and Guarantee Corp., 130 Md. 572, 101 Atl. 529, 16 N. C. C. A. 865, A 1 W. C. L. J. 738. 72. Adams v. New York & O. W. R. Co., 220 N. Y. 579, 114 N. E. 1046, 16N. C. C. A. 866. 970 DEPENDENCY. 379 A widow adopted a child subsequent to the death of her husband, and later remarried. Upon remarriage a claim was made on behalf of the child for a share of the compensation awarded to the widow. Tlit> court, in denying compensation, said: "The whole purpose of the compensation Act was to make pecuniary provision for those li;ivin{* lawful claims upon the workman, particularly his widow and his children. The petitioner in the case at bar was not the child of the deceased, nor of his widow. She made him her child after the death of the decedent, but that fact cannot bring him within the statute. The statute must be construed as having refer- ence and application to conditions existing at the time of the death of the workman, and not to relationships created by the widow after his death. And though the statute might be construed to include children of the widow by a former marriage, who at the time of his death were living with and dependent upon the work- man for support, it cannot well be construed to include children coming into an adopted relationship to the widow after his death." 78 Whore a husband instituted proceedings during his lifetime against his employer, his wife, not being a party in interest, would not be affected by the outcome of such proceeding, except that there might be a possible deduction of her claim for payments actually made him. 7 * 379. Eights of Dependents Independent of the Right of De- ceased and Others. A dependent's claim to compensation arises upon the death of the workman, and is independent of the claim to compensation by the workman. 7 -' 1 A settlement by the employer 73. State ex rel. Varchmin v. District Court of Ramsey Co., 133 Minn. 265, 158 N. W. 250, 13 N. C. C. A. 277. 74. Curtis v. Slater Const. Co.. 202 Mich. 673. 168 N. W. 958, 2 W. C. L. J. 909 ; Giggndelle v. Piedmont and Georges Creek Coal Co., . Md . App. , (1920), 111 Atl. 135, 6 W. C. L. J. 535 . 75. Nesland v. Eddy, 131 Minn. 62, 154 N. W. 661. This case finds support in Anderson v. Fielding, 92 Minn. 42, 99 N. W. 357, 104 Am. St. Rep. 665; Michigan Central R. Co. v. Vreeland. 227 U. S. 59. 33 Sup. Ct. 192, 57 L. Ed. 417, Ann. Cas. 1914C, 176; American R. Co. v. Didrickaen. 227 U. S. 145. 33 Sup. Ct. 224, 57 L. Ed. 456. 971 379 WORKMEN'S COMPENSATION LAW with the workman does not bar the dependent's right to compen- sation. 76 Nor does a release by the workman bar dependents right to compensation. 77 A release by the widow will not bar the claim of the personal representative for the benefit of minor children. 78 Financial benefits accruing to dependents upon the death of a workman will not affect the right to compensation. 79 . The fact that an employee received compensation for a brief period before his death does not relieve the insurer of the statutory requirement of the New York Act to "pay to the state treasurer for every case of injury causing death in which there are 110 per- sons entitled to compensation the sum of $100.00." In case of death the decedent would not be a person entitled to compensa- tion. 80 In holding that a mother could institute proceedings to recover compensation, despite the fact that the widow elected to sue a third person, and while such suit was pending, the court said: "If in the instant case the widow succeeds in her action against the third party, her success will inure to the benefit of the in- surer so far as she and those represented by her action against the third party are concerned. But, whether she succeeds or fails, the result will be the same to the insurer, so far as the dependent mother is concerned. Within the limitations of said section 16, subdivision 4, the liability of the insurer to the mother is entirely independent of the claim of the widow, and will remain the same independently of the result of the action instituted by her against 76. King v. Viscoloid Co., 219 Mass. 420, 106 N. E. 988; Williams v. Vauxhall Colliery Co. Ltd., (1908), 9 W. C. C. 120 C. A.; Howell v. Bradford & Co., (1911), 4 B. W. C. C. 203 C. A. 77. In re Cripp, 216 Mass. 586, 104 N. E. 565 Ann. Cas. 1915B, 828. 78. West Jersey Trust Co. v. Phil. & Read. R. R. Co., 88 N. J. L. 102, 95 Atl. 753; Satterfield v. Wahlquist, Penn. , 111 Atl. 253, 6 W. C. L. J. 579. 79. State ex rel. Crookston Lbr. Co. v. District Ct., 131 Minn. 27, 154 N. W. 509; Pryce v. Penrikyber Nav. Colliery Co., (1902), 4 W. C. C. 115, C. A. 80. Stempfler v. J. Rheinfrank & Co., 190 App. Div. 163, 179 N. Y. S. 659, (1919), 5 W. C. L. J. 573; Milwaukee Coke & Gas. Co. v. Indus. Comm., 160 Wis. 247, 151 N. W. 245, 9 N. C. C. A. 597; In re Nicholas, 104 N. E. 566, 217 Mass. 3, 4 N. C. C. A. 546. 972 DEPENDENCY. 380 the third party. The aim unit uf the payment to the dependent mother can be fixed definitely ,-md accurately, and in no respect depends on either the fact or the amount of the recovery in the action of the widow against the third party." 81 Money paid to an employee under a voluntary agreement be- tween the employee and employer, cannot be deducted from a death benefit, for such payment does not come within the scope of the statute allowing advancements to be deducted. 82 380. Death of Beneficiaries or of an Employee Before the Period for Which an Award Has Been Made Has Elapsed. Some acts expressly provide for termination of payments on the death of the beneficiary or upon contingencies, such as remarriage of a dependent widow or widower or cessation of dependency, other acts are so construed. 93 A few states provide that upon death or remarriage of a dependent widow or widower during the term of benefit payments, subsequent payments shall go to other dependents, if any, 84 while other acts are construed or expressly provide that upon the death of dependents the right to compensa- tion which is a vested right passes to the executor or administra- tor. 85 But in the absence of some provision vesting in some 81. In re Cahill, 159 N. Y. Supp. 1060, 16 N. C. C. A. 181. 82. Jackson v. Berlin Const. Co., 93 Conn. 155, 105 Atl. 326, 3'W.C.- L.J. 224. 83. In re Murphy, 224 Mass. 592, 113 N. E. 283. 13 N. C. C. A. 717; Ledforcl v. Caspar Lbr. Co., 2 Cal. I. A. C. 679, 13 N. C. C. A. 723; Corcoran v. Farrel Fdry. Co., 1 Conn. C. D. 42, 13 N. C. C. A. 721; Lahoma Oil Co. v. Indus. Comm., Okla. , 175 Pac. 836. The Illi- nois act as amended in 1919 provides that compensation is extinguished by death if there are no dependents. 84. Matecny v. Vierling Steel Wks., 187 111. App. 448, 13 N. C. C, A. 715; Hughes v. L. P. Degen Belting Co., 2 Cal. I. A. C. 569, 13 N. C. C. A. 729; Judson v. Andrews & Peck Co., 1 Conn. C. D. 54. 13 N. C. C. A. 731; In re Bartoni, 225 Mass. 349, 114 N. E. 663; McNlcols Case, 215 Mass. 497. 85. United Collieries Ltd. v. Simpson or Hendry, (1909), A. C. 383. 6 N. C. C. A. 287; Darlington v. Roscoe & Sons, (1907), 1 K. B. 219, 9 W. C. C. 1; State ex rel. Munding v. Indus. Comm. of Ohio. 92 Ohio St. 434, 111 N. E. 299, 13 N. C. C. A. 713; Swift & Co.. v. Indus. Comm, 973 380 WORKMEN'S COMPENSATION LAW survivor the right to compensation payments, the general rule is that the death terminates the compensation. 86 And the personal representative is entitled only to the amount of compensation lue at the time of the death of the injured employee. 87 Where a widow, who was wholly dependent upon and the sole dependent of the deceased, died before compensation was made, and the administrator of deceased's estate sued for compensation, the court held "The action was prosecuted by the right party," and that "the right to full amount of compensation allowed by suddivision 1, of sec. 5905, of the general statutes of Kansas, 1915, vested on the death of the workman, and was recoverable, not- withstanding the provision of subdivision 4 relating to discon- tinuance of compensation on marriage of a dependent and on arriv- al of a dependent at the age of independency. ' ' 88 An award made payable to the deceased's widow and in case of her death to the dependent children was held proper in a case where the children were equally dependent with the widow. 89 In a Massachusetts case the court said that the decree of award to the widow of the deceased servant should contain a clause stating 288 111. 132, 123 N. E. 267, 4 W. C. L. J. 163; Wangler Boiler & Sheat Metal Works v. Indus. Comm., 287 111. 118, 122 N. E. 366; Hansen v. Braun & Stewart Co., 90 N. J. L. 444, 103 Atl. 696; Friedman Mfg. Co. v. Indus. Comm., 284 111. 554, 120 N. E. 460; In re Towle, Op. Sol. Dep. C. & L. 565. 86. Ray v. Industrial Ins. Comm., Wash. , 168 Pac. 1121; Wozneak v. Buffalo Gas Co., 175 App. Div. 268, 161 N. Y. Supp. 675; Lahoma Oil Co. y. Indus. Comm. of Okla., Okla. , 175 Pae. 836; U. S. Fidelity Guaranty Co. v. Salser, Tex. Civ. App. , 224, S. W. 557, 6 W. C. L. J. 717. 87. In re Nichols, Mass. , 104 N. E. 566; In re Bartoni, 114 N. E. 663, 225 Mass. 349; In re Murphy, Mass. , 113 N. E. 283; In re Burns, 218 Mass. 8, 105 N. E. 601, 5 N. C. C. A. 635; Erie Ry. Co. v. Gallaway, N. J. , 102 Atl. 6; Jackson v .Berlin Construction Co., - Conn. , 105, Atl. 326; Poccardi v. Ott, W. Va. , 104 S. E. 54, 6 W. C. L. J. 721; East St. Louis Board of Education v. Indus. Comm., - 111. , (1921), 131 N. E. 123. 88. Smith v. Kaw Boiler Works, 104 Kan. 591, 180 Pac. 259, 4 W. C. L. J. 87. 89. Zoldatz v. Detroit Auto Specialty Co., -- Mich. , (1919), 172 N. W. 549, 4 W. C. L. J. 259. 974 I)I:IM:M>I-:NCY. 380 in express terms that in case of death of the dependent before the expiration of the period of payment the weekly payments are to cease, but the payments do cease regardless of the omission of such clause. 00 "Where a deceased employee's dependents were two minor chil- dren, and one of the children died after the father's death but before an award was made, and an award by the industrial com- mission, ordering the share of the deceased child to be paid to the administrator of the deceased employee was upheld because the court held that an insurer cannot litigate by appeal the propor- tions of the division of a payment among those claiming to be dependent upon the deceased employee, when the dependents are satisfied, and do not appeal and the insurer cannot, by any possi- bility, affect its pecuniary responsibility. 91 Subsequent insanity does not deprive an employee of compensa- tion due him. 98 Under the Colorado statute distributing lapsed awards and a subsection of the statute which limits the amount of an award to nonresidents to one third of the amount allowed to resident dependents, but not to exceed $1000, an award of $2.500 for .and employee's death was apportioned so that a dependent son, a i-f-ident, was awarded one third, and the widow and daughter, nonresident dependents, were awarded jointly one third of tin- remainder. Upon the lasping of the son's share at his death, and the widow's stare upon her remarriage the daughter was entitled to an award of $1000 less the original award to her, and she was not limited to one third of the unpaid sum. 98 90. In re Derinza, 229 Mass. 435, 118 N. E. 942. 1 W. C. L. J. 795. 16 N. C. C. A. 87; In re Bartoni, 225 Mass. 349, L. R. A. 1917E, 765, 114 N. E. 663, 16 N. C. C. A. 88. 91. In re Janes, 217 Mass. 192, 4 N. C. C. A. 552, 13 N. C. C. A. 720. 92. In re Walsh, Mass. , 116 N. E. 496. 15 N. C. C. A. 345. In re Colon, M. Linton, 3rd A. R. U. S. C. C. 131; WV.rd v. Heth Bros., - Mich. , (1920), 180 N. W. 245. 93. Indus. Comm. of Colo. v. Colo. Fuel & Iron Co. Colo. , 1921, 195 Pac. 114. 975 380 WORKMEN'S COMPENSATION LAW Where an employee recovered a lump sum judgment and upon his death, before satisfaction, in holding that it might be revived in the name of the administrator, the court said: ''The argument against, the revivor being allowed in the name of the administratrix is based upon the contention that : "Under the compensation law, the right to compensation and any judgment for compensation abates upon the death of the em- ployee, and does not survive to his heirs or representatives. "In support of this contention it is argued that compensation, where* death results from an injury to a workman, is allowed only to his dependents, and therefore his heirs as such, or his executor or administrator, have nothing to do with it. That situation, how- ever, is obviously not fully analogous to the one here presented, where a judgment was rendered in favor of the workman. It has been held that a judgment under the Compensation Act providing for periodical payments to an injured workman, although subject to commutation, does not survive the plaintiff's death, Wozneak v. Buffalo Gas Co., 175 App. Div. 268, 161 N. Y. Supp. 675. ' ' In the case cited the trial court had decided to the contrary, and two of the five appellate judges dissented from the reversal. That decision, however, if accepted as sound, would not control here.- In the present case the plaintiff had obtained an absolute personal judgment requiring the immediate payment of a fixed amount. It was the legal duty of the defendant to pay it at once, unless a stay should be procured pending an appeal. If payment had been made, the money would have been wholly at the disposal of the plaintiff. If the final result is an affirmance, it will amount to an adjudication that the rights of the parties shall remain as fixed at the time the judgment was rendered. The defendant gains no immunity from the fact of his having taken an appeal which is ultimately determined not to have been well founded. "The final argument against the right of revivor is that because the judgment is not assignable it does not survive the death of the plaintiff. It is true that, as a rule, causes of action which are not assignable do not survive. 1 C. J. 175, 176. But a judgment based on a nonsuryiving cause of action ordinarily does survive (1 C. J. 169), and does so in this state notwithstanding the penden- 976 DEPENDENCY. 382 cy of an appeal (Powers v. Sumbler, 83 Kan. 1, 110 Pac. 97). Moreover, while as a rule causes of action which are not assignable do not survive, this is liccause of qualities that inhere in the nature of the right. Where the statute for some special purpose, as the protection of a claimant against improvidence, forhids assignment, nonsurvivability does not necessarily result therefrom. The new government war savings certificates are expressly made not trans- ferable, but it will hardly be doubted that the title would , to the heirs or personal representatives of the owners upon his death. We hold that if the assignment was invalid the revivor was properly made in the name of the administratrix." 84 381. Absence of Dependents. Under sec. 15, sub'd. 7, of the New York Workmen's Compensation Law, the insurance car- rier may pay the state treasurer $100.00 where the injury results in the death of an employee who is without surviving depend- ents, though the employee himself before death received compen- sation for a brief period; for in case of death, he would not be a person entitled to compensation. 05 The State alone can object to the failure of the court to award $750.00 to the state treasurer, in case of a finding that there were no dependents of the deceased workman, under the Connecticut Act. 08 382. Inheriting from Estate of Deceased or Receiving Bene- fits from Other Sources. As the question of dependency is to be determined as of the time of the injury or death of deceased, money or other property coming to the claimant from the deceas- ed's estate has no bearing upon the question. 07 94. Monson v. Baltelle, Kan. . 170 Pac. 801, 1 W. C. L. J. 770. 95. Stempfler v. J. Rheinfrank & Co., 190 App. Div. 163, 179 N. Y. 8. 659, (1919), 5 W. C. L. J. 573. 96. Blanton v. Wheeler & Howes Co.. 91 Conn. 226, 99 Atl. 494. 97. State ex rel. v. District Court of Beltrami County, 131 Minn. 27, 13 N. C. C. A. 555; Pryce v. Penrikyber Navigation Col. Co., (1902), 1 K. B. 221, 4 W. C. C. 115. 85 L. T. 477, 71 L. J. K. B. 192, 50 W. R. 197, 66 J. P. 198, 6 N. C. C. A. 272; Kenney's Case, 222 Mass. 401. tit X. E. 47. 977 W. C. 62 382 WORKMEN'S COMPENSATION LAW The fact that a mother had made a will in favor of her de- ceased son, who had contributed to her support, is not material in determining her claim to the benefit provided by the act, in the absence of evidence that the will was the result of an agree- ment. 98 Where a son contributed to the support of his parents within four years it is immaterial under the Illinois Act that the parents were not dependent upon him." Dependency of a girl upon her grandfather for whose death she claimed compensation, being determinable by the conditions which existed at the time of the accident, would not be affected by the fact that, at the time of the hearing, she was earning some wages, or that the mother as a matter of spite to the grandmother, was offering to take care of her. 1 The fact that a mother had $300.00 or $400.00 in a bank draw- ing 4% interest, does not bar her of a right under the "Workmen's Compensation Act. 2 The Supreme Court of Kansas has held that the fact that the parents of deceased had ample property and income to sustain them, if properly used, was immaterial, if they actually depended upon the son's contributions to maintain them in the manner of living they had chosen. 3 "In determining compensation under the statute it is immate- rial whether the claimant inherited anything from the estate of the employee. Under the General Statute of Minnesota, 1913, Sec. 8208, the minimum compensation to a person wholly depend- ent on the deceased employee is $6.00 a week for 300 weeks." 4 98. Miss. River Power Co. v. Indus. Comm., 289 111. 353, 124 N. E. 552, 5 W. C. L. J. 50. 99. Humphrey v. Indus. Comm., 285 111. 372, 120 N. E. 816, 3 W. C. L. J. 102. 1. In re Yeople, In re John B. Rose Co., In re Travelers' Ins. Co., 182 App. Div. 438, 169 N. Y. S. 584, 1 W. C. L. J. 1135, 16 N. C. C. A. 148. 2. Parson v. Murphy, 101 Neb. 542, 163 N. W. 847, 16 N. C. C. A. 174. 3. Fennimore v. Pittsburg-Scammon Coal Co., 100 Kan. 372, 164 Pac. 265, 16 N. C. C. A. 176. 4. State ex rel. Crookston Lbr. Co. v. District Court of j3eltrami Co., 131 Minn. 27, 13 N. C. C. A. 555, 154 N. W. 509. 978 DEPENDENCY. 383 Mere gratuituous pittances-given by a sister and an aunt are not sufficient to deprive a mother and sister, otherwise totally dependent upon deceased, of an award for total dependency. 5 Wher the parents were receiving a pension in addition to the son's contributions, a finding of partial dependency was in ac- cordance with the facts in the case." The fact that the dependents draw benefits from a fireman '> relief association, does not affect their right to the full amount of compensation under the Minnesota Act. 7 Section 204 of the Pennsylvania Act reads: " IiVreipt of benefit* from any association, society, or fund shall not bar the recovery of damages, by action at law, nor the recovery of compensation un- der article 3 hereof, and any release given in consideration of such benefits shall be void." 8 . 383. Claim for Compensation by Personal Representative or Administrator. Under the Illinois Workmen's Compensation Act. Sec. 19, it is not necessary that the executor or administrator of a servant, killed in the course of his employment, file a claim for compensation, but it is sufficient if the petition is filed by the parties entitled to compensation. Where a widow, who was wholly dependent upon and the sole dependent of deceased, died and the administrator of the estate of the deceased workman sued for compensation, the court in con- struing the Kansas Act held that, the action was prosecuted by the proper party, and that the right to the full amount of corapensa- 5. Petrozino v. Amer. Mut. Liab. Asso., 219 Mass. 498, 107 N. E 37U, 9 N. C. C. A. 594. 6. Binkley v. Western Pipe & S. Co., (Cal.). I. A. C. 1 Nat. Comp. Jour., (1914), 6 N. C. C. A. 272; Johnson v. Mountain Commercial Co., 1 Cal. I. A. C. D. (1914), 11, 6 N. 0. C. A. 272; Ress v. Youngstowa Sheet & Tube Co., Ohio Ind. Com., (1914), 6 N. C. C. A. 73. 7. State ex rel. City of Duluth v. District Court of St. Louis Co., 134 Minn. 26, 158 N. W. 791. 8. Decker v. Mohawk Min. Co., 265 Pa. 507, 109 Atl. 275. 5 \V . C. L. J. 889. 9. Mississippi River Power Co. v. Indus. Comm., 289 111. 353. 124 N. E. 552, 5 W. C. L. J. 50. 979 383 WORKMEN'S COMPENSATION LAW tion allowed by subdivision 1, of section 5905, General Statutes of 1915, vested on the death of the workman, and was recoverable, notwithstanding the provision of subdivision 4 relating to dis- continuance of compensation on marriage of a dependent and on arrival of a dependent at the age of independency. ' ' 10 In proceedings for compensation under the Massachusetts Work- men's Compensation Act, it has been said: "The administrator of the widow of a deceased employee is entitled to the weekly pay- ment provided by part 2, section 6, of the act, 'from the date of the injury' until the time of the decease of the widow. In this connection it is of no consequence that the widow deceased before any payment wtis made to her. No compensation had been paid to her because of pending negotiations as to settlement for a lump sum. She was herself conclusively presumed to be dependent upon the employee, and the obligation rested strongly on her to support their minor children." X1 Under the New Jers,ey Workmen's Compensation Act, the pro- ceedings for compensation should be brought by the executor or administrator, and in the absence of such persons then the person entitled to administration. 12 Where the father of a deceased employee lived in Austria, and instituted proceedings by an attorney in fact, who bore no rela- tion to the parent, and who acted upon the authority of an un- anthenticated letter received by him from the father, the court held that this letter constituted no legal authority for his action taken in filing the application. 13 The administrator of a deceased employee has a right to prose- cute an application for compensation and collect any award made. 10. Smith v. Kaw Boiler Works, 104 Kan. 591, (1919), 180 Pac. 259, 4 W. C. L. J. 87. 11. Coakley's Case, 216 Mass. 71, 102 N. E. 930, Ann. Gas. 1915A 867; In re Bartoni, 225 Mass. 349, L. R. A. 1917E 765, 114 N. E. 663, (1916), 16 N. C. C. A. 88. 12. Connors v. Public Service Electric Co., 89 N. J. L. 99, 97 Atl. 79.J. 16 N, C. C. A. 802; Coster v. Thompson Hotel Co., 102 Neb. 585, 168 N. \V. 191, 16 N. C. C. A. 803. 13. Western Indemnity Co. v. Indus. Comm. of Cal., 35 Cal. App. 104, 169 Pac. 261, 16 N. C. C. A. 804. 980 DEPENDENCY. 383 The employer is protected by the statutory requirement that the administrator shall relieve the employer of all obligation as to distribution of the award. 14 Where a deceased employee has accepted the provisions of the compensation act, his personal representative cannot maintain ;m action under the death act for damages for his death, even though the only dependents left surviving him were aliens not residents of the United States." Where the dependent of a deceased workman dies without mak- ing a claim, the legal personal representative of the dependent is entitled to compensation unless the act expressly otherwise pro- vides. 10 So where a deceased workman left two minor children, and one of them died before the award was made, the share of the deceased child was ordered paid to his administrator. 17 On the other hand, the administrator of a dependent mother's estate is not entitled to the remainder of the payments upon the death of the mother, who was the sole dependent. The payments terminate. 18 Under the Ohio Act, an award to a dependent is a vested right, and upon the death of the dependent before final settlement is made the personal representative is entitled to the balance remain- ing unpaid. 19 Compensation accruing to a widow between the employee's death and her death may be recovered by her personal representative a* 14. G. H. Hammond Co. v. Indus. Comm., 288 111. 262, 123 N. E. 384, 4 W. C. L. J. 176. 15. Gregutis v. Waclark Wire Works, 86 N. J. L. 610, 92 Atl. 354, 9 N. C. C. A. 594. 16. United Collieries Lira. v. Simpson, 78 L. J. P. C. 129, (1909), A. C. 383, 101 L. T. 129, 25, T. L. R. 678, 53 Sol. Jo. 630, (1909), 8. C. (H. L. ) 19, 40 Sc. L. R. 780, (1909), S. L. T. 47, 2 B. W. C. C. 308, 6 N. C. C. A. 2S7; Darlirgton v. Roscoe & Sons, 76 L. J. K. B. 371. (1907), 1 K. H. 219, 96 L. T. 179, 23 T. L. R. 167, 61 Sol. Jo. 130, 9 W. C. C. 1, 6 N. C. C. A. 287. 17. In re Janes, 217 Mass. 192, 104 N. E. 556, 4 N. C. C. A. 552. 18. Matecny v. Vierling Steel Works, 187 111. App. 448, 6 N. C. C. A. 287. 19. State v. Indus. Comm., 92 Ohio St. 434, 111 N. E. 299. 981 384 WORKMEN'S COMPENSATION LAW part of her estate, and does not under the Federal Act accrue to their children as beneficiaries. 20 Whore compensation is awarded to an administrator in a pro- ceeding on behalf of the dependents, the distribution is to be made by him pursuant to the orders of the court which appointed him. Either an administrator, a beneficiary, or an employer may file a petition for the adjustment of a claim under the 'Illinois Act. 21 384. Dependent of More Than One Workman. One person may be dependent uj-on more than one workman, and where a mother was dependent upon her husband and two sons, who were all killed at once, in a mine disaster, the rule laid down was that a dependent of more than one workman may recover more than one maximum amount allowed for the death of one workman. 22 In construing the Pennsylvania Act on this point the Supreme court of that state said: "May children who are now receiving compensation for the death of their natural father receive addi- tional and concurrent compensation through the death of their stepfather ? The Legislature has authority to determine the various classes of persons who are entitled to compensation, as dependents, upon the injury or death of an employee, and the amount to bej paid such dependents. When it has so determined, the courts cannot change or amend either the classifications or the amount to be paid. In Section 307 of the Workmen's Compensation Act (Acts 1915, p. 736): 'The terms "child" and "children" shall include stepchildren and adopted children, and children to whom the employee stood in loco parentis, if members of the decedent's household at the time of his death.' The referee finds that dece- dent not only stood in loco parentis to these children, who were members of his household at the time of his death, but that they were also dependent upon him. This conclusion would seem to fix 20. In re Towle, Op. Sol. Dept. C. & L. 565. 21. National Zinc Co. v. Indus. Comm., 292 111. 598, 127 N. E. 135, 6 W. C. L. J. 21. 22. Hodgson v. Owners of West Stanley Colliery, (1910), 102 L. T. 194, A. C. (H. L.) 229, 3 B. W. C. C. 260, 6 N. C. C. A. 267; McLean v. Moss Bay H. I. & S. Co., Ltd., (1910), A. C. 229, 3 B. W. C. C. 402. 982 DEPENDENCY. 386 their right to compensation through the stepfather "\Ye find nothing in the act that prohibits this dual compensation. More- over, it would seem to be expressly permitted. Section 204 reads: That 'the receipt of benefits from any association, society, or fund shall not bar the recovery of damages by action at law, rior the recovery of compensation under article three hereof; and any release executed in consideration of such benefits shall be void.' '' - 3 385. Submitting to Operation. Before compensation can be denied to a dependent, suffering from physicial disability, for a period in excess of that reasonably required to effect a cure, be- cause of his refusal to submit to a surgical operation for hernia, there must be an explicit finding of the probable favorable result of such an operation, if performed, and an unreasonable refusal to submit thereto. A finding that the claimant's condition "called for and now calls for an operation," is insufficient to justify such a denial. 24 386. Estopped to Dispute Claim of Dependents After De- ceased's Death. An insurer cannot be heard to claim that the award \vas to the deceased as sole dependent of the deceased em- ployee, where the employer and insurer assumed before the arbi- tration committee that the claim of the deceased servant's father was made upon behalf of himself and family, and the award should be modified to include the widow and minor children upon petition tiled after the father's death." Where an employer has paid compensation up to the time of the death of a workman under a registered agreement, he is not estopped to dispute the cause of the workmen's death or show that it did not result from the injury.-' 23. Decker v. Mohawk Mining Co., 265 Pa. 507, 1920, 109 All. 275, 5 W. C. L. J. 889. 24. Mahoney v. Gamble-Desmond Co., 90 Conn. 255, 96 All. 1025, 13 N. C. C. A. 315. Note: See 490 post. 25. Byle v. Grand Rapids Blowpipe & Dust Arrester Co., Mich. , (1920), 175 N. W. 416, 5 W. C. L. J. 402. 26. Cleverley & Others v. Gas Light & Coke Co., 1 B. W. C. C. 82. 983 388 WORKMEN'S COMPENSATION LAW 387. Necessity of Administering Upon Estate of Workman. The taking out of letters of administration on the estate of a deceased workman is not necessary under the British Act, on the part of one claiming as a dependent. 27 In the United States many of the states dispense with administration as to workmen's com- pensation death benefits, and the statutes of the particular state must therefore be consulted. 388. Division of Compensation Between Dependents Double Compensation. Under the Workmen's Compensation Acts a number of persons be'aring different relationship to the de- ceased, may be concurrently entitled to compensation as depend- ents. So an award to a widow does not preclude an award to minor children of decendent. 28 And a father partially dependent upon his son is entitled to his proportionate share of the death benefit, even though the deceased son left a totally dependent widow. 29 Where a deceased workman leaves a widow and minor children, an award under the Pennsylvania Act should be made in favor of the children, to begin after the award to the widow ceases, and to continue until each of the children reach the age of 16 years. 30 An apportionment of the award between the deceased's widow, his son by a former wife, and her child by a former husband, was X properly apportioned where the amount due his son was paid to a guardian and the amount due his widow and her child was paid to the widow. 31 Assuming that a wife 1 living apart from the employee is, under the California Act, conclusively presumed to be dependent upon 27. Clatworthy v. R. & H. Green, (19"2), 86 L. T. 702, 4 W. C. C. 152. 28. Catlin v. Pickett & Co., 262 Pa. 351, 105 Atl. 503; Wolford v. Geisel Moving & Storage Co., 262 Pa. 454, (1919), 105 Atl. 831, 3 W. C. L. J. 798. 29. Pen n v. Penn, 188 Ky. 228, (1919), 209 S. W. 53, 3 W. C. L J. 634. 30. Irvin v. Frost & Co., 262 Pa. 354, 105 Atl., 504, 3 W. C. L. J. 526; Zoladtz v. Detroit Auto Specialty Co., 206 Mich. 349, (1919), 172 N. W. 549; Catlin v. Pickett, 261 Pa. 351, 105 Atl. 503. 31. Holmberg's Case, 231 Mass. 144, 120 N. E. 353, 2 W. C. L. J. 899. 984 DEPENDENCY. 388 him for support, still where there were also children dependent upon him, the commission had power to award the compensation in proportion to their respective needs, and in such manner as might be just and equitable, even to the total exclusion of the wife. 82 Where a decease*! leaves two daughters dependent upon him, an equal division of the death benefit is proper, where the 1 evidence tends to show that both daughters were partially dependent upon the contributions of the father to the family. 8S Where the deceased left a widow and a minor son dependent up- on him, and by the terms of the award the son was to be given into the custody of the grandfather, it was held under the British Act that the compensation should be apportioned between the depend- ents. " An award to the 1 mother of deceased is proper under the Indiana Act, even though brothers and sisters of the deceased were support- ed out of the common fund ; for the son was under no obligation to support his brothers and sisters. 8S Where an award was made under the Massachusetts Act to par- ents jointly, the court, in reversing the award, said: "In this case the board made no finding as to the relative extent of the depend- ency; and the 1 difficulty of doing so is apparent where the contri- butions may have been made for the joint benefit of both parents. The claimants, however are willing to have the entire amount awarded to the father, who was the head of the family ; and to rely upon having the case reopened for further hearing if the father should die during the period of compensation, leaving the mother surviving. * * * In our opinion the present award is not in compliance with the statute. If it is to be made to both parents, 32. Perry v. Indus. Ace. Comm., 177 Cal. 706, 169 Pac. 353, 1 W. C. L. J. 474, 16 N. C. C. A. 83. 33. In re Osterbrink, 229 Mass. 407. 118 N. E. 657, 1 W. C. L'. J. 814, 16 N. C. C. A. 148. 34. Fleming v. Roburite Co., Ltd., (1917), W. C. & Ina. Rep. 82, 16 N. C. C. A. 156. 35. People's Hdw. Co. v. Croke, (Ind. App.), 118 N. E. 314, 16 N. C. C. A. 179; Riggs v. Lehigh Portland Cement Co., Ind. App. , (1921), 131 N. E. 231. 985 388 WORKMEN '$, COMPENSATION LAW the relative e'xtent of their dependency individually must be found." 36 But under the New York Act, it was held that, for an accident happening prior to the amendment of 1916, an award to the par- ents jointly was proper. 37 Where an award was made to a father for the death of his son, it was contended that the award should be conditioned upon the fact that the mother filed a waiver to any claim growing out of the same circumstances. Overruling this contention the court said: ' ' In this contention we think that the appellant has overlooked the fact that the claim for compensation is made in the name of both Albert and Augusta Buhse, father and mother of the decendent, and the evidence clearly discloses that such contributions as the de- cendent made were made alike for the benefit of his father and mother. The proceedings negative the possibility of a second claim being made against respondent by Augusta, the mother, she being a party to the present proceedings." 38 Where separate awards were made to a daughter, father, and mother, there was no merit in the contention that, since the parents were legally obligated to support the daughter, the award to the parents must include any benefit to which she might otherwise be entitled, and hence that an award to her was granting double com- pensation, as the daughter was dependent upon the son for support she was entitled to a separate award. 39 Under the provisions of an act allowing compensation to alien de- pendents and limiting the dependents in any foreign country to the surviving wife and children, and in the absence of these to father, mother or grandparents, which the deceased has supported for a year prior to the accident, an award of 25 per cent to each parent was double compensation, a s the statute contemplated 25 per 36. In re Pagnoni, 230 Mass. 9, 118 N. E. 948, 16 N. C. C. A. 187. 37. Moran v. Rodgers & Hagerty, Inc., 180 App. Div. 821, 169 N. Y. Supp. 410, 16 N. C. C. A. 188. 38. Buhse v. Whitehead & Kales Iron Works, 194 Mich. 413, 116 N. W. 557. 39., Walz v. Holbrook, Cabot and Rollins Corp., 170 N. Y. App. Div. 6, 13 N. C. C. A. 464, 155 N. Y. S. 703. 986 DEPENDENCY. 388 cent to both parents, and the award to the mother should be stricken out. 40 The commission is not required, under the Illinois Act, to ap- portion compensation between ;i widow and a child, where then- is no contest as to who should receive the benefit of the award, and the widow is the administratrix of the deceased empl<> The commission has fulfilled its obligation upon making pay- ments to the administratrix. Nor does the commission have to determine how much or what proportion every member of the class shall receive. 41 An award of compensation in a lump sum by an Industrial Com- mission was sufficient, and it was not obliged to declare the pro- portion of the award of each of the beneficiaries. Such distribu- tion should be made by the court appointing the administratrix. 42 The Texas Act, providing that beneficiaries in case of death will take by descent, means descent relating to community property, and not per capita, as provided by law of descent relating to sep- arate property. 48 Where an employee leaves a dependent mother, the entire award should be alloted to her, even though there are brothers and sisters who are not dependent. 44 A decree to the father and stepmother jointly, though the step- mother was not a dependent, was not prejudicial to the employer, 40. Skarpeletzos v. Counes & Raptis Corp., 228 N. Y. 46, (1920\ 126 N. E. 268, 5 W. C. L. J. 720; Casello v. McCormack, 180 N. Y. App. Div. 94, 167 N. Y. Supp. 564, 16 N. C. C. A. 219; Skillaris v. United States Railroad Administration, 191 App. Div. 928, 180 N. Y. Supp. 649, (Mar., 1920), 5 W. C. L. J. 724. 41. Swift & Co. v. Indus. Comm., 289 111. 132, 123 N. E. 767, 4 W. C. L. J. 163; Wangler Boiler & Sheet Metal Works v. Indus. Comm. 287 111. 118, 122 N. E. 66; Woodcock v. Walker, 170 App. Dir. 4, 155 N. Y. Supp. 702. 42. G. H. Hammond v. Indus. Comm., 288 111. 262. 123 N. E. 384, 4 W. C. L. J. 176. 43. Texas Employers Ins. Assn. v. Boudreaux. Tex. Civ. App. , (1919), 213 S. W. 674, 4 W. C. L. J. 561. 44. Matecny v. Vierling Steel Works, 187 111. App. 448. Note: For cases on double indemnity in case of death see Em- ployers Wilful Misconduct, 287 ante. 987 389 WORKMEN'S COMPENSATION LAW where the father, had the suit been instituted alone in his name, would have been entitled to the full amount awarded. 45 Where deceased left a mother, one sister and two brothers de- pendent upon him and to whom he had given $30 per month from his salary of $55, and board at $18 per month, the commission in apportioning the award said : " It is apparent from this statement of facts that the mother and also the sister and brothers were total- ly dependent upon the deceased. Compensation is accordingly awarded to the sister and two brothers 15 per cent, share and share alike, and to the mother 25 per cent. This award to the sister and brothers of 15 per cent, instead of 30 per cent, which would be authorized under section 10 (F) of the law, is made in order that the total amount of compensation paid to the family may not be at a higher rate than the contributions made by the deceased to the support of the family during the year preceding the injury. This variation from the award authorized by section 10 (F) is made in accordance with the provisions of section 10 (J), which is to the effect that 'in case there are two or more classes of persons entitled to compensation under this seclion, and the apportionment of such compensation above provided would result in injustice, the commission may, in its discretion, modify the apportionment to meet the requirement of the case.'" 46 389. Deductions. Under the Illinois Act, the amount of compensation for the death of a coal miner is to be computed upon his gross earnings, not upon the gross earnings less the amount deducted by the employer for union dues and other matters. 47 Expenses incurred by a parent on account of a deceased minor son are pertinent in determining the fact of dependency, under the Massachusetts Act, but are irrelevant in determining the amount of compensation to be paid after the dependency has been estab- lished. 48 V 45. Milne v. Sanders, Tenn. , 228 S. W. 702. 46. In re Grady Murray, 3rd A. R. U. S. C. C. 100. 47. Springfield Coal Mining Co. v. Indus. Comm., 291 111. 408, 126 N. E. 133, 5 W. C. L. J. 675. 48. Freeman's Case, 233 Mass. 287, 123 N. E. 845, (1919), 4 W. C. L. J. 498; Dembinski's Case, 231 Mass. 261, 3 W. C. L. J. 151, 120 988 DEPENDENCY. 389 Compensation paid an injured employee, pursuant to a vol- untary agreement with the employee cannot be credited, at the employee's death, against compensation awarded a dependent. 49 Nor can moneys paid in excess of the advancements allowed by statute for medical purposes, whm they are voluntarily paid. 60 NYh.'iv tin- mother of the deceased claimed compensation under the Michigan Act, she thereby clothed the employer with a right, of action against the wrongdoer, and if he failed to protect his rights he cannot have deducted from the award the sum received by the mother as result of a suit brought under the Survival Act by the administrator of the deceased. The mother's election did not release the third person from liability under the Survival Act to the deceased's administrator for negligent killing. 51 Under the Illinois Act, deductions need not be made for ex- penses incurred in keeping the minor son, when determining de- pendency, since the parents are under a legal obligation to sup- port him. 52 Under the Kansas Act, it is held to the contrary, and dependency is not established unless the wages or contributions of the minor exceed the cost of his maintenance. 53 "In an action under the Workmen's Compensation Law by the parents of a minor son to recover compensation for his death, it was shown that his earnings, which averaged $17.45 per week, were turned over in full to his parents, and that the parents were p N. E. 856; Farnsworth Colliery Co., Ltd., v. Hall, (1911), C. 665, 4 B. W. C. C. 313, 6 N. C. C. A. 243. 49. Jackson v. Berlin Const. Co., 93 Conn. 155, 105 Atl. 326, 3 W. C. L. J. 224. 50. Crescent Coal Co. v. Indus. Comm., 286 111. 102. 121 N. E. 171, 3 W. C. L. J. 240. 51. Vereeke v. City of Grand Rapids, 203 Mich. 85, 168 N. W. 1019, 2 W. C. L. J. 917. 52. Metal Stamping's Corp. v. Indus. Comm., 285 III.. 528, 121 N. E. 258, 3 W. C. L. J. 258; In re Peters, 64 Ind. App. , 116. N. E. 848, 16 N. C. C. A. 183; Mahoney v. Gamble-Desmond Co., 90 Conn. 255, 90 Atl. 1025, 13 N. C. C. A. 315; In re Murphey, 224 Mass. 592, 6 N. C. C. A. 716, 113 N. E. 283. 53. McGarvie v. Frontenac Coal Co., 103 Kan. 586, 175 Pac. S75, 3 W. C. L. J. 46. 989 390 WORKMEN'S COMPENSATION LAW partially dependent upon such earnings; that he paid no board, but that the expense to his parents for his support was $5 per week. The court held, that in ascertaining the average yearly earnings of the minor, and fixing the degree of dependency of the parents, the employer is not entitled to a credit or deduction for the expense of the minor's board and support." 54 Where a father's earnings, after making proper deductions for the contributions of his son, are sufficient to support his family, a case of dependency by the family upon the son has not been established. 55 Insurance carried by the employer on the life of the employee without expense to the insured, should be allowed as a credit to the employer in making an award, if it is shown that such insur- ance has.been paid to the widow. 56 Upon the modification of an original award so as to make it include the loss of both legs instead of one, the employer is en- titled to have credit given him for payments made under the first award. 57 Salary paid as such up to the time of the employee's death, is not to be credited to the employer and cannot be deducted from ' the compensation awarded where it was voluntarily paid. 58 390. Evidence. In the matter of dependency, it is necessary to establish by competent evidence that the claimants stood in that relation to the decedent, and statements of a brother and sister of deceased, who asserted that he sent money to his family, is not competent evidence, when there is nothing to show that they knew any of the facts and there are no corroborating cir- 54. Slater v. Ismert Hincke Milling Co., Kans. (1920), 189 Pac, 908, 6 W. C. L. J. 164. 55. Moll v. City Bakery, 199 Mich. 670, 165 N. W. 649, 1 W. C. L. J. 391, 16 N. C. C. A. 186. 56. American Smelting & Refining Co. v. Cassil, Neb. , (1920), 175 N. W. 1021, 5 W. C. L. J. 552. 57. Saddlemire v. Amer. Bridge Co., -- Conn. , (1920), 110 Atl. 63, 6 W. C. L. J. 130. 58. Ogden v. Indus. Comrn., Utah , (1920), 193 Pac. 857, 7 W. C. L. J. 249. 990 DEPENDENCY. 390 cunistances; nor is a statement of the ''onii-ei- in charge" as to the birth of the decedent and claim of dependency by alleged parents, competent evidence of the existence of parents; a cer- tified copy of the record being essential. 50 Voluntary contributions of money or support arc not necessa- rily evidence of dependency or of the extent of dependency. 60 But the fact that the contributions were voluntarily given to- wards the support of one whom the deceased employee was not legally obliged to maintain, will not deprive such recipient of tin- character of dependent. 61 A statement from a deceased employee's brother that he had received from his parents in Italy letters stating that the parents were living on remittances sent from America by the brother, is not evidence that the parents were actually dependent upon these remittances. Nor are unauthenticated certificates of the "Mayor" and "the official" of a town in Italy, stating thai the parents were exclusively dependent upon deceased for their sup- port, and further stating that they existed upon the fruits of small jobs and owned their own home and other property, suffi- cient to establish dependency. 62 Kvidence that a minor daughter turned over her wages to her mother is not, in the absence of showing that the mother was de- pendent upon her, sufficient to support a claim of dependency under the New York Act. 63 Evidence that a son in America sent sums of money to a father in Italy, is not sufficient to establish dependency, in the absence of a showing that the father was dependent upon these contribu- tions 64 59. Bonnano v. Metz Bros., 188 App. Div. 380, 177 N. Y. S. 51, (1919), 4 W. C. L. J. 427. 60. Miller v. Riverside S. & C. Co., 189 Mich. 360, 155 N. \V. 462. 61. Walz v. Holbrook, C. & R. Corp., 170 App. Div. 6, 155 N. Y. Supp. 703. 62. Pifumer v. Rheinstein & Haas, Inc., 187 App. Div. 821, 175 N. Y. S. 848, (1919), 4 W. C. L. J. 136. 63. Frey v. McYouRhlin Bros., Inc.. 187 App. Div. 824, 175 N. Y. S. 873. (1919), 4 W. C. L. J. 133. 64. Peabody Coal Co. v. Indus. Comra.. 287 111. 407, (1919). I:'!' \ E. 843, 5 W. C. L. J. 27. 991 390 WORKMEN'S COMPENSATION LAW Evidence that the husband and wife are living together at the time of the accident is sufficient to establish dependency. 65 Where a husband is unable to support his wife, evidence that she is living apart from him in accordance with an agreement that she earn wages, is not sufficient to establish desertion. 66 A claim for total dependency of a widow in Italy upon her husband in the United States, cannot be supported upon the evi- dence which shows that the husband owned the house that the widow was living in in Italy. If the house was of no value, this fact should be shown in evidence. 67 The commission may receive affidavits of the father and mother of the deceased, residing in Ireland, and taken before a commissioner of oaths of the state of New York, as bearing upon their dependency. 68 An admission by a father that the contributions of the son were.not sufficient to pay his board and clothing is damaging evi- dence, but is not conclusive upon the board when the statement was out of harmony with other undisputed evidence. 69 The question of dependency of a mother upon a married son, who was living with his wife at the time of the injury, must be determined upon the facts as they existed at the time of the ac- cident, and testimony regarding contributions before marriage must be excluded. 70 A signed statement, given at the "beginning of employment that there was no one depending upon the deceased, constitutes noth- ing more than evidentiary matter, the probative value of which 65. Doherty v. Grosse Isle Tp., 205 Mich. 592, (1919), 172 N. W. 596, 4 W. C. L. J. 222. 66. James Black Dry Goods Co. v. Iowa Indus. Comm.. Iowa . 173 N. W. 23, (1919), 4 W. C. L. J. 379. 67. In re Derinza, 229 Mass. 435, 118 N. E. 942, 1 W. C. L. J. 795, 16 N. C. C. A. 87. 68. Moran v. Rodgers and Hagerty, Inc., 180 App. Div. 821, 168 N.-Y. S. 410, 1 W. C. L. J. 694, 17 N. C. C. A. 263. 69. State ex rel. Ernest Fleckenstein Brg. Co. v. District Court of Rice County, 134 Minn 324, 159 N. W. 755, 16 N. C. C. A. 189. 70. Birmingham v. Westinghouse, Elect. & Mfg. Co., 180 N. Y. App. Div. 48, 167 N. Y. S. 520, 16 N. C. C. A. 189. 992 35)0 is to be determiued by the commission, and an actual finding that there were dependents is conclusive. 71 Evidence that a son in the United States sent money to his parents in Italy, without any further testimony as to the actual dependency of such parents upon the son's contributions, is not sufficient to sustain a claim of dependency." In a proceeding for compensation by an alien woman on the death of a man whom she claimed was her husband, it was held that a so-called protocol, purporting to contain testimony of the plaintiff and her witnesses taken before a probate judge in a foreign country, where the alleged wife resided, could not be ad- mitted as a foreign affidavit, and even if it was authenticated as a foreign affidavit it could not be substituted to prove, in a (-,.,- tested case, facts which can only be shown by competent oral evidence or legal depositions, taken after notice to the opp<>~ parties. Therefore, in the absence of witnesses to testify to know- ing deceased in Austria and in America, and who could identify him as the plaintiff's husband, the evidence was insufficient to establish the claimant's right to compensation. 78 Where the only testimony, to establish a claim of dependency by an alien father, was to the effect that the deceased had requested from his depository an advancement of money, saying that h" wished to send it to his father, the evidence was insufficient to establish a claim of dependency. 74 Testimony of a witness that knew the deceased in Italy and in the United States, that the parents of the deceased where de- pendent upon him and that he sent them money from the United States to the knowledge of the witness, for he. acting as interpreter, purchased money orders for the deceased, saw him place the money order in an envelope, addressed to the father in Italy, and mail 71. Northern Redwood Lbr. Co. v. Indus. Ace. Comm.. 34 <'al App 2, 166 Pac. 828, 16 N. C. C. A. 189. 72. Poccardi v. State Compensation Com'r 82 W. Va. 497. 91 E. 663, 16 N. C. C. A. 217. 73. Lobuzek v. American Car and Foundry Co.. Mich. , 161 N. W. 139, 14 N. C. C. A. 423. 74. Western Indemnity Co. Inc. v. Indus. Ace. Comm. of Cal.. 3-". Cal App. 104, 169 Pac. 261. 16 N. ('.('. A. 223. W. C. 63 390 WORKMEN'S COMPENSATION LAW the letter, was sufficient to establish dependency of the alien par- ents. 75 A mere statement by the brother-in-law of the deceased that at different times the deceased had told him of sending money home to his parents, was not suffcient evidence nor competent evi- dence of the dependency of deceased's parents; as hearsay testi- mony regarding the sending of money in no way established the dependency of the deceased's parents, nor did it show that the money was not sent for the purpose of discharging a debt the deceased owed to his parents, or for other purposes. 70 Evidence that a deceased employee contributed to the support of his mother, and that while not immediately dependent upon him for support she was likely to become dependent because of advanc- ing years, lack of property and regular employment, it could not, as a matter of law, be said that such evidence did not tend to prove a condition of partial dependency. 77 Where parties agree upon stated facts, and after an objection has been filed to the claimant's right to compensation, the intro- duction of other evidence than the stipulated facts is not error, when there was no objection made at the time. 78 Statements of a deceased person of his intention to marry the mother of an illegitimate posthumous child are admissible on the questions of dependency, and on the issue of paternity, as well as admissions against interests, and a claim of dependency may be based solely upon such declarations. 79 75. Victor Chemical Works v. Indus. Bd. of 111., 274 111. 11, 13 N. C. C. A. 552, 113 N. E. 173. 76. Tirre v. Bush Terminal Co., 127 App. Div. 386, 158 N. Y. S. 883, 12 N. C. C. A. 64. 77. Appeal of Hotel Bond Co.. 89 Conn. 143, 93 Atl. 245, S N. C. C. A. 583. 78. Vereeke v. City of Grand Rapids, 184 Mich. 474, 151 N. W. 723, 9 N. C. C. A. 583. 79. Lloyd v. Powell Duffryn Steam Coal Co. Ltd., (1914), A. C. 733, 7 B. W. C. C. 330, 9 N. C. C. A. 588. Note: See Chapter XIV, Evidence. 994 DKI'KNDKXCY. 392 391. Burden of Proof. Persons claiming death benefits un- der the Workmen's Compensation Act, are bound to bring them- selves within the language of the act. 80 Tlif Imnlcn of proving the elements necessary to bring the beneficiary within the provisions of the Ilinois Act of 1913, Sec. 7, par. (b), as amended by Laws of 1915, p. 401, providing for compensation to employees' parents, rests upon the claimant. 81 Where compensation is sought in favor of alien mm resident p.iivnts. there must be actual proof that the parents are living, when they have not been heard from or of in seven years. 88 The fact that a man and woman lived together for ten months. is not sufficient evidence of a marriage, and this fact must be proved by the claimant. 83 The mere fact that a father receives money from his son and expends it, is not sufficient evidence to discharge the burden of proof of dependency. 84 392. Guardians A guardian of a dependent minor child is the proper party to award compensation to for the child ( 'onipensation awarded to the infant children of a deceased work- man may be paid to his widow, when she has been appointed their general guardian. 86 80. Drummond et al. v. Isbell-Porter Co. et al.. 188 App. Div. 374, 177 N. Y. S. 525, 4 W. C. L. J. 535. (1919); Benjamin F. Shaw Co. v..Palmatory. - Del. . (1919), 105 All. 417, 3 W. C. U J. 424; In re Derinza, 229 Mass. 435, 118 N. E. 942, 1 W. C. L. J. 795, 16 N. C. C. A. 87; In re Sponatsk'. 221 Mass. 526, 108 N. E. 466, L. R. A. 1916 A, 333; In re Carroll. 64 Ind. App. . 116 N. E. 844. 81. Peabody Coal Co. v. Indus. Comm., 289 111. 330, (1919), 124 N. E. 603, 5 W. C. L. J. 57; In re Stewart. Ind. App. , (1920), 126 N. E. 42, 5 W/C. L. J. 514; In re Flerro's Case, 223 Mass. 378, 111 N. E. I 82. Keystone Steel & Wire Co. v. Indus. Comm., 289 111. 587. (191H). 124 N. E. 542, 5 W. C. L. J. 40. 83. Fife Coal Co., Ltd.. v. Wallace. (1910), 2 B. W. C. C. 264, Ct. of Sess. 84. Main Colliery Co. v. Davies. 2 W. C. C. 108. Note: See Chapter XIV. Evidence. 85. Holmberg's Case. 231 Mass. 144, 120 N. E. 353. 2 W . C. L. J. 8. this subject. . 86. Woodcock v. Walker. 170 App. Div. 4. 155 N. Y. Supp. 702. 995 393 WORKMEN '& COMPENSATION LAW Under the Kentucky Act where a minor is employed in wilful violation of a statute, his guardian and not the Industrial Com- mission, has the right to elect whether to proceed under the act or in an action at law. 87 393. Dependency Under the Federal Act. Dependency is a question of fact under the Federal Act, to be determined by the facts of each particular case. 88 The amount contributed by deceased is not the only criterion for establishing dependency. The equitable if not legal claim of a parent upon his child for support makes it proper to consider the actual needs of the parent. ' ' If that use of the farm was neces- sary to her support, then she would be, at least in part, dependent upon that, and that dependence would be recognized by permitting her to occupy the farm, as I have stated. * * * She had the right, so far as the construction of this statute is concerned, to keep that money at interest, depend upon the income from it, and treat herself as dependent upon her sons for whatever might be necessary for her support over and above that income. * * * There is a state- ment here that if the income of the relative claiming to be depend- ent is less than $500.00 per year, that is to be regarded as making him or her dependent. * * * In the opinion of the court, it depends upon the circumstances of each case. The mother is entitled to support according to the style in which she has been living. If that has been humble and inexpensive, the amount necessary to provide for her would necessarily be less than if she had been living in a more expensive style. The policy of the Government is not to reduce the surviving relatives of the soldier who had lost his life in the service down to the lowest standard of life, but is to construe the dependent clause, so far as the obligation of the statute is concerned, according to the mode in which the widow has been living. * * * It is for you to determine according to the 87. Frey's Guardian v. Gamble Bros., Ky. App. , 1920, 221 S. W. 870, 6 W. C. L. J. 171. 88. In re claim of Theodore Rock, Op. Sol. Dep. C. & L. 573. 996 DEPENDENCY. 393 testimony whether she was adequately provided for. and in deter- mining that you will look to what is necessary for her support."* Xor will -it suffice to know the age, circumstance, position in life, and the earning capacity of the parent, but it must appear that the parent did in fact depend upon the deceased. 91 So where deceased left a mother to whom he had contributed $100.00 in two and one half years prior to his death, it was held that dependency was established. 62 The same ruling was made where the contributions amounted to $125.00 during the year prior to deceased's death, although the father owned real estate and had an income of $1,200.00 03 A mother living in Ireland, who had three other sons and was a pensioner of the British Government, received small sums of money about May and Christmas of each year from the deceased. I'pon this state of facts it was held that she was not a dependent upon deceased, who had left a widow. 94 Where a single man contributed large sums of money to his parents, who had five younger children to raise, it was held that dependency was established. 03 A grandmother of deceased, being old and destitute, was held to be a dependent, even though the deceased had never contributed to her support. 96 A promise of a youth to contribute to his parents, upon whose farm he had labored until entering the Government's employ, was held to establish dependency. 07 90. United State v. Purdy, 38 Fed. 902. 91. In re Claim of Brauch, Op. of Sol. Dep. C. & L. (1915), 576; In re John F. Murphy, 2nd A. R. U. S. C. C. 76; In re Horace A. Pelletier, 2nd A. R. U. S. C. C. 76; In re Chas. A. Borrineau, 2nd A. R. U. S. C. C. 77. 92. In re Claim of Lcvi.Belgrave, Op. Sol. Dep. C. A L. (1915), 580. 93. In re Leon Esselman, (1915), Op. Sol. Dep. C. ft L. 581. 94. In re Claim of Frank Duffy. Op. Sol. Dep. C. ft L. (1915), 594. 95. In re Claim of Jack Scott, Op. Sol. Dep. C. &. L. (1915), 595. 96. Claim of Wm. F. Munn, Op. Sol. Dep. C. ft L. (1915), 597; In re Claim of Juan Enciaa, Op. Sol. Dep. C. ft L. (1916), 601. 97. In re Claim of Robert Harris. Op. Sol. Dep. C. ft L. (1915), 598. 997 393 WORKMEN'S COMPENSATION LAW Where the parents' age, physical condition and circumstances in general did not establish dependency, the mere fact that deceas- ed contributed to them would not make them dependent. 98 Where a son, 18 years of age, living apart from his mother, did not contribute to her support, it was held that dependency was not shown." While the Federal Act provides that 35 per cent shall be paid to a widower, who is totally dependent upon deceased at the time of his death, and makes no provision for partial dependency, the commission in its discretion may award compensation proportion- ately to the extent of dependency. 1 Where the decedent left a woman with whom he had cohabited after abandoning his wife, it was held that she was not a dependent although her son, by this putative father, was entitled to compen- sation. 2 But where the deserted wife remarried and deceased contracted a common law marriage with another it was held that his common law wife was entitled to compensation. 3 Where a stepson contributed to a stepmother, because she was unable to meet all her own expenses because of sickness, an award was made for one year, requiring the claimant to show at the end of the year whether or not dependency had terminated. 4 A stepchild supported by his stepfather is a dependent, but this dependency ceases when the child's natural father, who had been divorced from the mother, assumes the obligation of support. 5 One employed at two different occupations is entitled to have compensation based upon his total earnings from both employ- ments. 98. In re Claim of Win. Rees, Op Sol. Dep. C. & L. (1915), 599. 99. In re Claim of Chas. Jones, Op. Sol. Dep. C. & L. (1915), 602. 1. In re Ella C. Lloyd, 3rd A. R. U. S. C. C. 103. 2. In re George Young, 3rd A. R. U. S. C. C. 103. 3. In re Gus Green, 3rd A. R. U. S. C. C. 185. 4. In re Frederick C. Neilson, 3rd A. R. U. S. C. C. 102. 5. In re John David Anderson, 3rd A. R. U. S. C. C. 97. 6. In re Wm. H. Minnick, 3rd A. R. U. S. C. C. 100. 998 m.n.M'i \< r, A daughter over eighteen years oi' atre is not dependent merely because she is obligated to pay a debt that the father has pronii-. I to pay, for the compensation act does not aim to pay the debts nf deceased persons. 7 Dependency is to be determined as of the date of the accident. and where a father was dependent at that time, it is imniat^r'-ai that subsequent to that time others have come to Ins relief." 394. Adoption Under the Federal Act. Under the Federal Act a child must have been legally adopted before the foster parent is entitled to compensation as his dependent." "Adoption, like marriage, is a civil contract, and. as a general rule, following the opinion in the William A. Brinkley case under this act, where there are no circumstances which may raise a doubt of the relationship, where it appears that the deceased has lived with and supported a woman who claims to be, and was claimed by the deceased to have been the mother by adoption of such deceas- ed, and where the reporting officer, as in this case, states that such relationship existed, it may safely be assumed that the rein tionship is established. Upon the question of proving dependence of the parent upon the deceased the opinion in the Brinkley case may again safely be followed, to the effect that a statement by the claimant is sufficient to establish such dependency. In this OUH elaimant states that she necessarily depended upon the de- ceased, customarily receiving $6 weekly out of his salarly of $1.7." a day." 10 An adopted child is entitled to the benefits of the Act. 11 395. To Whom Compensation of Children With a Surviving Parent is Paid. Where the deceased leaves no parent or widow. 7. In re Melvin B. Murpby. 3rd A. R. U. S. C. C. 101. 8. In re Arthur Rogers. 3rd A. R. U. 8. C. C. 1"2. 9. In re claim of Charles Perkins, Op. Sol. Dep. C. 6 L. (1915). 57f; In re Claim of Juan Rodriguez, Op. Sol.. Dep. C. A L. (1912). 551. 10. In re claim of Huff, Op. Sol. Dep. C. & L. (1915). 567. 11. In re claim of Asenclen Estorga. Op. Sol. Dep. C. ft L. (1915), 568. 999 396 WORKMEN'S COMPENSATION LAW but leaves a child entitled to compensation, and the acting Spanish Consul files an affidavit of claim on behalf of such child, such counsul will be deemed to be acting in loco parentis, and his affidavit as the affidavit of the child. 12 "Where the widow of the deceased has been awarded compensation in her own behalf and in behalf of their child, and the widow dies, leaving the care of the child to a grandmother, the remainder of the year's compensation may be paid to such maternal grandmother for the use of the child. 13 396. Illegitimate Children. "Notwithstanding, then, the generally accepted view, and the numerous decisions, in support of it, referred to at the outset, it is believed that the Secretary would be amply justified in holding that the children of a deceased em- ployee, whether legitimate or illegitimate, at least if there is no reason to question the relationship, are entitled to the benefits of the compensation act. This would be no more than giving to the word 'child' its natural import. It would likewise give effect to the tendency noticable in modern legislation, toward recognizing in illegitimates the same claims to parental care and support that belong, by natural right, to the young of any species. It would be sustained, moreover, by those authorities above dted, few in number but none the less persuasive, which announce what seems to be the more rational doctrine; and it would follow a principle of public policy which does not depend for its sanction upon the infliction of vicarious punishment on the innocent anrl the helpless. On the other hand, to hold, as many courts have done, that the use of the word 'child' in a statute, without any qualification indicating a restricted sense, always implies the issue of lawful wedlock, because in generations past the law regarded a bastard as nullius filins and heir to no one, is to adhere to a rule long after the reason for it has ceased to have point. Such an adherence to mere technicality, based on a legal fiction no longer operative, would be still less reasonable when dealing with a statute which, like the compensation act, is intended for a beneficial 12. In re claim of J. G. Redondo, Op. Sol. Dep. C. & L. (1915), 563. 13. In re claim of Jefferson, Op. Sol. Dep. C. & L. (1915), 564. 1000 purpose and is c.\prex>|v doiu'iied to relieve ordinary laborers and those (Impendent on them of the necessity of bearing the whole I'urdfii resulting 1'roin tin- inevitable accidents incident to the in- dustry in which they are employed. Without saying of Con<; what the court in Connecticut said of the legislature'of that State, that it is 'a body made up generally of plain men,' it can be said that, in passing the compensation act, 'they made laws for plain men;' and it is at least fair to presume that they used the terms 'child' and 'children' in the statute in question 'in their common, popular signification, rather than with reference to any legal or technical sens.-.' and that they Mi-id, as little reference to the technical meaning of words in the English common law as they had to the English law of inheritance.' The compensation ad does not in any way touch the matter of inheritance. In m\ opinion, therefore, for the reasons given, and on the strength of some of the authorities cited, the word 'child' or 'children,' \vnh- in the meaning of the compensation act, is not restricted to child or children born in wedlock, but includes illegitimate nfTsprin<_' ;t>* well. It is accordingly recommended that the claim of Edgar .McDonald Harding, the illegitimate child of James F. Harding, deceased, be allowed." 14 397. Who is the Widow of an Employee. The civil code <>F Panama does not make any provision for recognition of a common- law marriage, and a person depending upon the validity of n common-law marriage, performed in Panama, for the establishment of a claim of dependency must necessarily fail.'-' 1 A woman who lived in illicit relations with a man in Marhad >s. and bore three illegitimate children, is not a dependent. 18 A woman divorced from an employee and given custody of the children is not a dependent, but may receive compensation a> guardian of the children. 17 A woman who has been divorced from her husband, is no! his widow after his death. 18 14. In re claim of J. Harding. Op. Sol. C. * L. <19K. ). 553. 15. In re claim of Stanely Howell. Op. Sol. Dep. C. A L. (1915). 549. 16. In re claim of Fitz Ogard. Op. Sol. Dep. C. &. L. (1915), : 17. In re claim of Edward Niemeier. Op. Sol. Dep. C. A L. (1915>. 551. 18. Op. Atty. Gen.. :?" Am. A: K. K.m-y. L. 521. 1001 SCHOOL OF LAW LIBRARY UNIVERSITY OF CALIFORNIA LOS ANGELES