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Cornell University
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the Cornell University Library.
There are no known copyright restrictions in
the United States on the use of the text.
http://www.archive.org/details/cu31924019313554
BRADBURY'S
WORKMEN'S COMPENSATION
AND
STATE INSURANCE LAW
HARRY B. BRADBURY
OF THE NEW YORK BAR. AUTHOR OP " BRADBURY'S RtTLES OF PLEADING '
AND VARIOUS WORKS ON PLEADING AND PRACTICE
SECOND EDITION
VOLUME I
THE BANKS LAW PUBLISHING CO.
NEW YORK
1914
a-
U3n
Copyright, 1912, bt
THE BANKS LAW PUBLISHING COMPANY
COPYRIGHT, 1914, BY
THE BANKS LAW PUBLISHING COMPANY
PREFACE TO SECOND EDITION
Although the general plan of the first edition has been
followed, this is an entirely new work. Some of the chapters
have been rearranged and new titles have been given to them,
for the purpose of facilitating the finding of the particular
points in which the searcher is interested. The old decisions
have been reexamined and an enormous amount of new
material has been added. The new matter has not been
merely tacked on to the old, however. The old and new
decisions have been combined and harmonized as if the first
edition had not been written. Much of the new material
has been gathered at the cost of a good deal of time, money
and patience. It consists not only of strictly judicial inter-
pretation of the courts, but of decisions by the various
accident boards, industrial commissions and other public
officers whose duties are connected with the administration
of the various compensation statutes.
Many of the decisions are in manuscript form and may
never be published. The author is under obligations to the
various industrial commissions and accident boards for their
invariable courtesy in assisting him in furnishing rulings of
these various bodies. He is under special obligation in this
respect to the unfailing and generous courtesy of the Mas-
sachusetts Industrial Accident Board, the Michigan Indus-
trial Accident Board, the Wisconsin Industrial Commission,
the Ohio Industrial Commission, the California Industrial
Accident Commission and the New Jersey Employers'
Liability Commission. He also acknowledges many courte-
sies at the hands of Hon. James B. Carroll, Chairman of the
Massachusetts Industrial Accident Board, Hon. Wallace D.
Yaple, Chairman of the Ohio Industrial Commission, Hon.
Will J. French, of the California Industrial Accident Com-
mission, Hon. Frederic M. Williams, one of the Connecticut
iV PEEFACE TO SECOND EDITION
Commissioners, the Industrial Insurance Commission of
Washington, the Industrial Board of Illinois, the Iowa
Industrial Commissioner, the Nevada Industrial Commis-
sion, the Oregon State Industrial Accident Commission, the
Rhode Island Commissioner of Industrial Statistics, the
Texas Industrial Accident Board, the West Virginia Public
Service Commission, Mr. Robert E. Granfield, Secretary
of the Massachusetts Industrial Accident Board, Mr. P. J.
Watrous, Secretary of the Wisconsin Industrial Commission,
Mr. Richard L. Drake, Secretary of the Michigan Industrial
Accident Board, and Mr. Ira B. Cross, Secretary of the
California Industrial Accident Commission.
If the author has succeeded in elucidating some of the
problems which inevitably must arise from a somewhat
sudden adoption of the more or less revolutionary compensa-
tion principle in a number of States in quick succession, his
success will be due, in a large measure, to the members of
the boards and commissions whom he has mentioned above.
In the present edition of this work has been included
all the really important material having a bearing on the
problem of workmen's compensation as it is to be solved in
the United States. It has been deemed advisable to print
the German Code, ac that statute was the basis of most of
the compensation acts in all countries. The translation
published by the United States Labor Department has been
used.
The British statute contains the basis of very many of the
provisions to be found in American statutes. It therefore
has been given a place as in the first edition. The Lloyd
George National Insurance Act which has caused so much
discussion in England and other parts of the world has been
inserted, because, while not strictly a workmen's compensa-
tion act, it has an important bearing on the larger question
of social insurance of which the workmen's compensation
act is a part
There have also been added the compensation acts of the
various Canadian provinces. All of these provinces have
PREFACE TO SECOND EDITION V
such acts, except Ontario, which has not yet adopted the
compensation principle.
The Federal Compensation Act relating to certain Govern-
ment employe's, which was adopted in 1908 and has been
extended by several amendments since then, is also printed
in Chapter XXIII, with a digest of the rulings of the various
departments which have the final determination of questions
arising under that Act. Many other Federal departmental
decisions have been included in the general discussion in
others chapters in the book whenever they were of such a
nature as to apply to the compensation principle generally.
Under the Federal Act certain questions which are peculiar
to that statute have been decided. Such decisions have
been confined to the immediate discussion of the Federal
statute.
The complete acts of the twenty-two states which have
adopted compensation laws will be found in Chapter XXIV.
These laws as printed include all the amendments up to
January 1, 1914, and in one or two instances amendments
passed early in the year 1914 have been inserted.
The taking effect of two of the compensation laws is left
somewhat in doubt. Reference is made to Nebraska and
Ohio. In Nebraska the Act was intended to become effective
July 17, 1913. But a referendum petition was filed under the
Law of Nebraska which postponed the taking effect of the
Act until after there has been a vote under this referendum.
The referendum vote will be taken at the general election in
November, 1914, and the taking effect of the Act at all will
depend upon that vote.
In Ohio the amended law, according to its provisions, went
into full effect on January 1, 1914. A referendum petition
was filed under the law of Ohio, however, which, ordinarily,
would have postponed the taking effect of the law until after
there had been a vote on this petition. The Secretary of
State, with whom the original petition was filed, held that
the petition was fraudulent in that it did not contain the
valid signatures of a sufficient number of citizens, and re-
Vi PREFACE TO SECOND EDITION
fused to order an election on the referendum. Subsequently
additional signatures were filed, but the Secretary of State
held that the original petition was void and could not be
made valid by such an amendment. Proceedings were then
taken to compel the Secretary of State to order an election.
Such proceedings were pending undetermined when this edi-
tion went to pres^. The Ohio Industrial Commission has
taken the position that the law went into full effect on Jan-
uary 1, 1914, and is acting accordingly. The Supreme
Court of Ohio has met several times since the matter was
submitted to it, but no decision has yet been rendered..
The Oregon law was originally intended to become effect-
ive on July 1, 1913, but by reason of a referendum petition
upon which a vote was taken in November, 1913, the taking
effect of the law was postponed to July 1, 1914.
The Kentucky law was enacted somewhat unexpectedly
after stereotyped plates had been made of both volumes of
this work. To make the book complete, however, the Ken-
tucky act has been added at the end of Volume 1, beginning
with page 1052a, and the entire act has been properly in-
dexed in its regular place in the index at the end of Volume 2.
The New York law was amended in the very closing hours
of the session of the Legislature, late in March, 1914, after
the stereotyped plates were made for that act as well. Cor-
rections were made, however, and a number of the plates re-
cast, so that the text of the New York act contains all the
amendments up to the end of the Legislative session of 1914.
Harry B. Bradbury.
141 Broadway, New York.
April 10, 1914.
TABLE OF CONTENTS
VOLUME I
CHAPTER I
INTRODUCTION
PAGE
ARTICLE A — Synopsis of the Development or the Compensa-
tion Pbinciple 1
1. Economic principles involved 1
2. Origin and nature of the so-called common-law defenses 3
3. Changes wrought by workmen's compensation laws 6
4. Exceptional cases in which compensation is denied 6
5. The British and GeTman Compensation Acts 7
6. Efforts to pass compensation acts in the United States 9
7. Elective laws and the constitutional question involved 11
8. Brief review of the American laws thus far passed 21
ARTICLE B — Two Fundamental Problems Especially Im-
portant in America 34
1. Extra-territorial effect of compensation laws 34
2. Actuarial principles underlying State insurance laws 63
CHAPTER II
abolition of defenses
ARTICLE A— Introduction 69
1. Reason for abolishing the common-law defenses. .......... 69
ARTICLE B — Specific -Provisions of Various Statutes 71
Arizona 71
California , 74
Connecticut 78
Illinois 79
Iowa 81
Kansas 82
Maryland 86
vii
yiii CONTENTS
PAGE
87
Massachusetts °'
Michigan **
Minnesota °®
Nebraska 91
Nevada 92
New Hampshire ™
New Jersey "
New York 96
Ohio * 97
Oregon 9°
Rhode Island "
Texas 10°
Washington 101
West Virginia 102
Wisconsin 103
CHAPTER III
TO WHOM ACTS APPLY
ARTICLE A — How the Relation of Mastek and Sebvant is
Created .m 106
1. Who is an "employ^" or a "workman" within the meaning of
the compensation acts 106
2. Members of employer's family ■. 109
3. Relation between employer, who is also a workman, and other
workmen 110
4. Workman temporarily in service of other than regular em-
ployer 110
5. Joint employers of same workman 112
6. Teamsters 113
7. Workman employing assistant, or substitute 115
8. Conductor on railroad employing assistants; emergency 117
9. Apprentice serving without pay 117
10. Boarding mistress of construction crew 118
11. Student of manual training school employed on holiday. ... 118
12. Persons employed by charitable organization out of charity 119
13. Policeman injured while acting as fireman 120
14. National guardsmen 120
15. Actors 120
16. Partners ....'. 121
CONTENTS IX
PAGE
17. Shareworkers on vessels 121
18. Drivers of taxi-cabs operated on shares 125
19. Independent contractors; sub-contractors 127
20. Securing position by false representations 133
21. Minor securing position by misrepresenting age 133
22. Workman injured before act takes effect but dies after statute
effective 133
ARTICLE B — Specific Classes of Employes Excluded from
Operation of Acts 134
1. Domestic servants 134
2. Casual employ^ 136
3. Farm laborers 142
4. Outworkers 142
5. "Usual course of the trade, business or profession" of the
employer 143
6. Contracts exempting employers from the operation of the act 144
ARTICLE C — Specific Provisions of the Various Statutes 146
Arizona 146
California 150
Connecticut 151
Illinois 153
Iowa 156
Kansas 160
Maryland 164
Massachusetts 165
Michigan 167
Minnesota 171
Nebraska 172
Nevada 176
New Hampshire 176
New Jersey 177
New York 178
Ohio 184
Oregon 185
Rhode Island 189
Texas 190
Washington 192
West Virginia 197
Wisconsin 203
X CONTENTS
CHAPTER IV
MANNER OP ELECTING TO OPERATE UNDER, OR REJECTING, OR OF BRINGING
EMPLOYERS AND EMPLOYES WITHIN, THE TERMS OP THE COMPENSATION ,
STATUTES
PAGE
ARTICLE A— Introduction 207
1. Classification of statutes 207
2. Acceptance of compensation principle as to part only of em-
ployes. . . f. 210
ARTICLE B — Specific Provisions op Various Statutes 211
Arizona ....:. 211
California 213
Connecticut 216
Illinois 228
Iowa 233
Kansas 238
Maryland 241
Massachusetts 242
Michigan 245
Minnesota 251
Nebraska 255
Nevada 263
New Hampshire 268
New Jersey 269
New York 272
Ohio 275
Oregon 279
Rhode Island 286
Texas _ _ 290
Washington _ 293
West Virginia _ 295
Wisconsin 297
CHAPTER V
ELECTION OP REMEDY BY WORKMEN AFTER INJURY
ARTICLE A — Introduction 300
In general; right to elect irrespective of statutory provision. . 300
CONTENTS XI
PAGE
ARTICLE B — Specific Provisions op Various Statutes 305
Arizona 305
California , 305
Connecticut 307
Illinois 310
Iowa 311
Kansas 312
Maryland 311
Massachusetts 313
Michigan 315
Minnesota 316
Nebraska ; . . 316
Nevada 317
New Hampshire 319
New Jersey '. 320
New York 321
Ohio 322
Oregon 324
Rhode Island 326
Texas 326
Washington 327
West Virginia 329
Wisconsin 330
CHAPTER VI
"injuries" which are the basis op a claim for compensation and
when they "arise out of7' and "in the course of" the employ-
MENT
ARTICLE A— Introduction; Scope op Chapter 333
1. Significance of terms employed 333
2. Obligation to the family of a workman in cases of intentional
injuries or serious misconduct 334
3. Going to and from place of employment 338
4. Injuries by third persons 338
5. Employers' liability cases in point; how cited 339
xii CONTENTS
PAGE
ARTICLE B— What is an " Injury " or an "Accidental Injury? ". 339
1. In general; distinction between the word "injury" and the
term " accidental injury " as found in the various statutes . . 339
2. Injuries without external manifestation 350
3. "Bends" 351
4. Injuries due to gradual wearing or constant use of particular
members ." ' ' '.
5. Germ or poison entering system through break in skin 352
6. Skin affections«£rom acids and other irritants 356
7. Contracting infectious and contagious diseases; anthrax;
glanders • ■ 358
8. Diseases due to traumatism but without direct external in-
fection or contagion; tuberculosis 359
9. Injuries from falls caused by fits, vertigo or other like causes 360
10. Apoplexy 363
11. Heart diseases 363
12. Sprains, strain^and ruptures 366
13. Inhalation of noxious gases 370
14. Pneumonia following exposure or traumatism 371
15. Lead poisoning 373
16. Copper poisoning 374
17. "Sun-stroke," "heat stroke" and "frostbite" 375
18. Drowning 380
19. Mental shock or fright and nervous troubles 380
20. Insanity 384
21. Suicide due to mental condition caused by accident 385
22. Acceleration or aggravation of pre-existing disease 385
23. Disability made more serious by illness or other contributory
cause 391
24. Infections and other ailments contracted by reason of lowered
vitality due to previous injuries 392
25. Condition due to medical treatment 394
26. Refusal^of workman to permit operation to be performed. . . 396
27. Vaccination by order of superior 397
28. Diseases contracted in hospital after accidental injury 397
29. Breaking artificial leg 397
30. Death not natural or probable consequence of injury 398
ARTICLE C — When does an Injury "arise out of" or "in the
course of" the Employment? 398
1. In general; distinction between term "arising out of" and "in
the course of " 398
CONTENTS Xlll
PAGE
2. Going to and from place of employment 404
3. Seamen and mechanics getting on and off vessels 412
4. Workmen injured on employer's premises before work begins,
after work ceases, or during cessation of work 419
5. Working after regular hours of employment 437
6. Servant living on master's premises suffocated in burning
house 437
7. Entering employer's premises to apply for work 438
8. Returning to employer's premises to secure pay 438
9. Returning to employer's premises to secure tools 440
10. Unnecessarily going to a place of danger 440
11. Injuries at meal time 444
12. Getting drink of water 450
13. Attending to call of nature 451
14. Workmen whose duties take them away from the employer's
premises 452
15. Volunteers; acting without scope of authority 456
16. Going to portions of employer's premises other than those
necessarily used by the workman, for his own convenience
or pleasure 475
17. Serious and wilful misconduct 480
18. Disobedience of specific orders 493
19. Acting on unauthorized orders 500
20. Acting in an emergency 501
21. Saving life of another 505
22. Assaults. Injuries caused by third persons 505
23. Playing practical jokes 511
24. Bite of animal 512
25. Sting of insect 514
26. Bite of snake 514
27. Foreign substance in eye 514
28. Seaman injured by explosion of gun 515
29. Lightning striking workman 515
30. Drawing inferences from unexplained injuries 516
ARTICLE D — Specific Provisions of Vabious Compensation
Acts 518
Arizona 518
California 519
Connecticut 519
Illinois 520
xiV CONTENTS
PAGE
Iowa 520
Kansas 520
Maryland . . . ; - 521
Massachusetts 521
Michigan 521
Minnesota 522
Nebraska 522
Nevada 523
New Hampshire. . .♦. 523
New Jersey 523
New York 524
Ohio 524
Oregon 524
Rhode Island 525
Texas 525
Washington 526
West Virginia 526
Wisconsin 526
CHAPTER VII
LIABILITY OF PRINCIPALS FOB INJURIES TO WORKMEN OF CONTRACTORS
AND SUB-CONTRACTORS
ARTICLE A— Introduction 527
1. Scope of chapter 527
2. Decisions under British Act 528
ARTICLE B — Specific Provisions of Various Statutes 532
Arizona 532
California 532
Connecticut 533
Illinois 534
Iowa 534
Kansas 535
Maryland 535
Massachusetts 537
Michigan 537
Minnesota 533
Nebraska 533
Nevada 539
CONTENTS XV
PAGE
New Hampshire 539
New Jersey 540
New York 540
Ohio 540
Oregon 540
Rhode Island 540
Texas ? 541
Washington 541
West Virginia 541
Wisconsin 541
CHAPTER VIII
WAITING PERIOD
ARTICLE A — Specific Provisions op Various Statutes 543
Arizona 543
California 543
Connecticut 544
Illinois 544
Iowa 544
Kansas 544
Maryland 544
Massachusetts 545
Michigan 545
Minnesota 545
Nebraska 545
Nevada 546
New Hampshire 546
New Jersey 546
New York 546
Ohio 547
Oregon 547
Rhode Island 547
Texas 547
Washington 547
West Virginia 548
Wisconsin 548
Xvi CONTENTS
CHAPTER IX
MEDICAL ATTENTION
PAGE
ARTICLE A— Specific Provisions of Various Statutes 549
Arizona 54 J
California 549
Connecticut . . . . ^ 550
Illinois 551
Iowa ■ • ■ 551
Kansas 551
Massachusetts 552
Michigan 553
Minnesota 553
Nebraska 554
New Hampshire. . .- 554
New Jersey 554
New York 555
Ohio 555
Oregon 556
Rhode Island 556
Texas 556
Washington .- 557
West Virginia 557
Wisconsin 558
CHAPTER X
FUNERAL EXPENSES
ARTICLE A — Specific Provisions of Various Statutes 559
Arizona 559
California 559
Connecticut 560
Illinois 560
Iowa 560
Kansas 560
Maryland 560
Massachusetts 560
Michigan 561
Minnesota 561
CONTENTS XV11
PAGE
Nebraska 561
Nevada 561
New Hampshire 561
New Jersey 561
New York 562
Ohio 562
Oregon 562
Rhode Island 562
Texas 562
Washington •. 562
West Virginia 563
Wisconsin , 563
CHAPTER XI
DEATH BENEFITS
ARTICLE A— Introduction 565
1. In general 565
2. Presumption of death from absence 566
3. When death occurs after compensation has been paid for a
time 567
4. Estoppel by payment of compensation before death of right
to deny liability therefor after death 567
ARTICLE B— Who are Dependents 567
1. Introduction 567
2. Definition of word "dependent" 571
3. Necessity of administering on estate of workman 574
4. Dependent of more than one workman 575
5. Partial and total dependents of same workman 575
6. Parents 575
7. Total dependency of mother on one son when other sons are
living 576
8. Mother, whose husband is living, as dependent of son 576
9. Widow and children dependents of father when other children
contribute to support of family - 577
10. Wife separated from husband before his death 577
11. Posthumous child 580
12. Illegitimate children 581
13. Posthumous illegitimate child 581
14. Parents of illegitimate children 581
xviii CONTENTS
PAGE
15. Mother of illegitimate child as dependent of father of child. . 581
16. Inmate of workhouse 582
17. Aliens 582
18. Question of dependency is one of fact 583
19. Amount due partial dependent is a question of fact 583
20. Dependents receiving other income because of death of
workman 583
* 21. Right of dependents independent of that of deceased 584
22. Claim by dependents when compensation to workman ter-
minated before death .' 584
23. Claim for compensation by personal representative of de-
ceased dependent 585
24. Orphan whose mother died prior to death of workman, com-
pensation under Quebec act 586
ARTICLE C — Specific Pbovisions op Various Statutes, with
Notes op Adjudicated Cases 587
Arizona 587
California 588
Connecticut 594
Illinois 596
Iowa 597
Kansas 599
Maryland 601
Massachusetts 602
Michigan 606
Minnesota 609
Nebraska 612
Nevada 616
New Hampshire 617
New Jersey 618
New York 621
Ohio 623
Oregon 625
Rhode Island 627
Texas 630
Washington 631
West Virginia 634
Wisconsin _ 636
CONTENTS • XIX
CHAPTER XII
DISABILITY BENEFITS
PAGE
ARTICLE A — Introduction 644
1. Classification of disability 644
2. Pain and suffering not compensated 645
3. Computing waiting period; consecutive or non-consecutive
days 646
4. Deducting hospital fees from compensation 646
5. Infant, "probable earnings" 646
6. Sundays, holidays and shutdowns occurring in period for
which compensation is due 647
7. Compensation for one day 647
8. Increased period of disability by failure to follow physicians'
instructions 647
9. Voluntary idleness of workman as tending to prolong dis-
ability 647
10. Reduced earnings owing to general fall in wages 648
11. Workmen not entitled to compensation while in prison 648
12. Dismissal for misconduct of workman suffering from partial
permanent disability 648
13- Vocational diseases; contracted partly in the employment of
two employers; apportioning compensation 649
14. Weekly payments required 649
15. Place of payment of compensation 650
16. State institution; compensation payments part of current ex-
penses 650
17. Payment of less than statutory amount as basis of release . . 650
18. Divorced man paying alimony is "single" for compensation
purposes 651
ARTICLE B— Permanent Total Disability 651
1. Total incapacity; refusal of former employers to supply work
to injured employe1 651
2. Incapacity to do regular work 651
3. Injuries amounting to permanent total disability 652
ARTICLE C— Permanent Partial Disability 653
1. Minimum amount payable in all cases of specific indemnity 653
2. Under schedule for specific indemnities two weeks' waiting
period should not be deducted 653
XX • CONTENTS
PAGE
3. Consecutive and not concurrent payment for temporary dis-
ability and specific indemnity 654
4. Loss of several fingers; consecutive payments for each, or con-
current payments for all 655
5. Amputation of finger when wound healing 655
6. Loss of use of fingers without amputation 656
7. Injuries to and losses of fingers not otherwise classified 656
8. Loss of toes 658
9. Loss of one eye 659
10. One eye so injured that both cannot be used 664
1 1 . Complete blindness caused to eye of which sight partially de-
stroyed 664
12. Removal of eye already blind 665
13. Loss of hand when other hand already injured 665
14. Injuries to legs 666
ARTICLE D— Temporary Total Disability 667
1. Unsuccessful efforts to obtain employment 667
2. Waiting for opportunity to have operation performed at
hospital 667
3. Heart trouble developing after injury 668
4. Workmen earning same wages as before the injury 668
5. Miscellaneous specific cases in which compensation was
' awarded 668
ARTICLE E— Temporary Partial Disability 670
1. Ability to do light work after accident; exaggeration of
injury 670
2. Inability to obtain employment in district where workman
lives 671
3. Wages and compensation after accident need not equal wages
before injury 672
4. Workmen receiving same wages after as (or higher than) be-
fore injury 672
5. Wages and compensation in excess of wages before accident 673
6. Clumsiness due to injury as ground of incapacity. . 674
7. Disability by disease accelerated by accident; basis of com-
pensation 674
8. Disability made more serious by illness or other contributing
cause _ 674
9. Re-current attacks of industrial disease 675
10. Miscellaneous injuries for which compensation awarded 675
CONTENTS XXI
PAGE
ARTICLE F — Miscellaneous Cases 676
1. Double compensation 676
2. Deducting insurance benefits to which employe* contribute 677
ARTICLE G — Specific Provisions op Various Statutes 678
Arizona 678
California 679
Connecticut 685
Illinois 687
Iowa 691
Kansas 694
Maryland 694
Massachusetts 695
Michigan 697
Minnesota 699
Nebraska 701
Nevada 704
New Hampshire 705
New Jersey 706
New York v 709
Ohio 712
Oregon 714
Rhode Island 718
Texas 720
Washington 721
West Virginia 723
Wisconsin 724
CHAPTER XIII
WAGES WHICH ARE THE BASIS OP COMPENSATION
ARTICLE A — Introduction 730
1. In general 730
2. Actual earnings not "usual" wages paid in that employment 730
3. Absence of agreement as to rate of wages 731
4. Basis of compensation when workman employed in different
grades 731
5. Longshoremen employed by several employers 733
XX11 CONTENTS
PAGE
6. Adding compensation from all sources, including rent, etc . . 735
7. "Tips" as part of earnings 738
8. Intermittent employment due to strikes and other causes .... 739
9. Employment for less than a week 742
10. Change in rate of wages during year 742
11. Father dependent of son; allowance for son's maintenance. . . 743
12. Compensation for previous injury not included in determin-
ing basis of compensation for subsequent injury causing
death. ... * 744
13. Deducting poor-law relief received by dependent 744
14. Deducting wages paid to an assistant in computing compen-
sation 745
15. Wages paid seaman under shipping act taken into account
in awarding compensation 745
ARTICLE B — Specific Provisions op Various Statutes, with
Notes 746
Arizona 746
California 746
Connecticut 748
Illinois 748
Iowa 750
Kansas 751
Maryland 752
Massachusetts , 753
Michigan 754
Minnesota 756
Nebraska 757
Nevada , 757
New Hampshire 757
New Jersey 753
New York 759
ohio 760
Oregon 761
Rhode Island 7gl
Texas yeo
Washington , 700
West Virginia 7g*
Wisconsin nQi
CONTENTS XX11I
CHAPTER XIV
NOTICES OP INJURIES AND OF CLAIMS FOR COMPENSATION
PAGE
ARTICLE A— Introduction 766
1. In general 766
2. Decisions under the British statute 767
ARTICLE B — Specific Provisions of Various Statutes 769
Arizona ( 769
California 770
Connecticut 772
Illinois 773
Iowa 774
Kansas 774
Maryland 775
Massachusetts 775
Michigan 778
Minnesota 779
Nebraska •. . 779
Nevada 780
New Hampshire 780
New Jersey 781
New York 782
Ohio 783
Oregon 784
Rhode Island 784
Texas 785
Washington 787
West Virginia 787
Wisconsin 788
CHAPTER XV
administration and procedure
ARTICLE A — Introduction 791
1. Various methods of administration 791
2. Liberal rules as to procedure 795
3. Right of workman' to take out letters of administration on
estate of deceased employer 795
4. Specifying amount when making claim for compensation . . . 795
XXIV CONTENTS
PAGE
5. Necessity of appointment of guardian ad litem when interests
of incompetent involved 795
6. Agreement to pay compensation is not a consent to submit
to arbitration 796
7. Agreement for compensation bar to arbitration proceedings. 796
8. Effect of agreement to pay compensation " during incapacity" 797
9. Award "during total or partial incapacity" 797
10. Amending pleadings by arbitrator 797
11. Burden of proving the injury was caused by accident is on
the workman 797
12. Inferences in the absence of direct proof 798
13. Burden of proof as to serious and wilful misconduct 800
14. Evidence 800
15. Physician's certificate as evidence 801
16. Sufficiency of finding of incapacity , 801
17. Finding on question of fact as to which there is any evidence
to support 802
18. Suspensory award 804
19. Award to terminate at specified date in future 804
20. Admission in answer that compensation has been paid
amounts to admission of claim made 804
21. Apportioning compensation among dependents; procedure. . 804
22. Enforcing payment of award; body execution 804
23. New trial; arbitrator cannot grant 805
24. Signing receipts by workmen 805
25. What amounts to "recovery" of compensation 805
26. Offset of overpayment of compensation 805
ARTICLE B — Digests op Various Statutes, with Notes and
Forms 806
Arizona 806
California 806
Connecticut 814
Illinois 815
!°wa 834
Kansas 835
Maryland 836
Massachusetts 83g
Michigan _ 842
Minnesota 856
Nebraska .
863
CONTENTS XXV
PAGE
Nevada 863
New Hampshire 867
New Jersey 867
New York 873
Ohio .874
Oregon 878
Rhode Island 878
Texas 879
Washington 881
West Virginia 881
Wisconsin 887
CHAPTER XVI
APPEALS
ARTICLE A— Introduction 892
1. In general 892
2. Points raised below only considered on appeal 893
3. Reviewing facts 893
4. Determining adequacy of lump sum paid under agreement . . 894
5. Order terminating weekly payments not appealed from is
final 894
6. Dismissal of action and making decision in arbitration pro-
ceedings 894
7. Award of costs 895
ARTICLE B — Specific Pbovisions of Vabious Statutes 895
Arizona 895
California 895
Connecticut 895
Illinois 896
Iowa 896
Kansas 897
Maryland 897
Massachusetts 897
Michigan 897
Minnesota 898
Nebraska 898
Nevada 898
New Hampshire 898
Xxvi CONTENTS
PAGE
New Jersey [J?
New York • °™
Ohio °99
Oregon ™>
Rhode Island • • ■ • 8"
Texas • 8"
Washington 900
West Virginia - 900
Wisconsin ». 90°
CHAPTER XVII
MODIFYING AWARDS OTHERWISE THAN BY APPEAL
ARTICLE A— Introduction • 902
1. Circumstances must have changed to justify review 902
2. Res adjudicata ■ 903
3. New medical evidence on review to show changed circum-
stances 904
4. Terms of application for review binding on applicant 904
5. Modifying award from a date earlier than the date of the
application to modify 904
6. Terminating compensation payments 905
7. Question of recovery from injury is one of fact 906
8. Increasing age as affecting disability 907
9. Refusal to submit to surgical operation 907
10. Reducing payments by reason of ability to do light work. . 908
11. Inability to obtain light work 909
12. Offering suitable employment 910
13. Reducing payments after offer and refusal of light work 910
14. Failure of workman to get or attempt to get light work 911
15. Disability from disease following injury 911
16. Workman permanently injured but suffering increased dis-
ability from disease 912
17. Rolling-mill hand able to work with glasses when vision im-
paired 912
18. Disability due to idleness and softened muscles 913
19. Disability due to brooding over injury. .. 913
20. Inability to get employment due to slackness of work 914
21. Infant earning as much after as he did before accident 914
22. Probable earnings of infant in different grade 914
23. Profits of business enterprise as affecting right to reduce com-
pensation. 915
CONTENTS XXV11
PAGE
24. Apportioning loss between employer and employe1 915
25. Allowance for expenses when work furnished away from home 916
26. Diminishing payments; burden of proof 916
27. Keeping proceeding alive by payment of nominal sum 917
28. Recovering overpayments of compensation 918
29. Permanent partial disability; ability to earn same wages as
before accident 918
30. Increased susceptibility to occupational disease 919
31. Inability to earn old wages in new occupation 919
32. Inability to do same work as before injury 920
33. Lack of evidence as to exact amount workman is able to earn 920
ARTICLE B — Specific Pkovisions op Various Statutes 921
Arizona 921
California 921
Connecticut 921
Illinois 921
Iowa 921
Kansas 921
Maryland 921
Massachusetts 922
Michigan '. 922
Minnesota 922
Nebraska 922
Nevada 922
New Hampshire 922
New Jersey 923
New York 923
Ohio 923
Oregon 923
Rhode Island 923
Texas 923
Washington 924
West Virginia 924
Wisconsin ." 924
CHAPTER XVIII
PHYSICAL EXAMINATION OF CLAIMANTS FOR COMPENSATION
ARTICLE A — Introduction 925
1. Demand that workman's attorney be present at medical
examination , 925
XV1U CONTENTS
PAGE
15. Mother of illegitimate child as dependent of father of child. . 581
16. Inmate of workhouse 582
17. Aliens 582
18. Question of dependency is one of fact 583
19. Amount due partial dependent is a question of fact 583
20. Dependents receiving other income because of death of
workman 583
21. Right of dependents independent of that of deceased 584
22. Claim by dependents when compensation to workman ter-
minated before death : 584
23. Claim for compensation by personal representative of de-
ceased dependent 585
24. Orphan whose mother died prior to death of workman, com-
pensation under Quebec act 586
ARTICLE C — Specific Provisions of Various Statutes, with
Notes of Adjudicated Cases 587
Arizona 587
California 588
Connecticut 594
Illinois 596
Iowa 597
Kansas 599
Maryland 601
Massachusetts 602
Michigan 606
Minnesota 609
Nebraska 612
Nevada 616
New Hampshire 617
New Jersey 618
New York 621
Ohio 623
Oregon 625
Rhode Island 627
Texas 630
Washington 631
West Virginia 634
Wisconsin g3g
CONTENTS • XIX
CHAPTER XII
DISABILITY BENEFITS
PAGE
ARTICLE A— Introduction 644
1. Classification of disability 644
2. Pain and suffering not compensated 645
3. Computing waiting period; consecutive or non-consecutive
days 646
4. Deducting hospital fees from compensation 646
5. Infant, "probable earnings" 646
6. Sundays, holidays and shutdowns occurring in period for
which compensation is due 647
7. Compensation for one day 647
8. Increased period of disability by failure to follow physicians'
instructions 647
9. Voluntary idleness of workman as tending to prolong dis-
ability 647
10. Reduced earnings owing to general fall in wages 648
11. Workmen not entitled to compensation while in prison 648
12. Dismissal for misconduct of workman suffering from partial
permanent disability 648
13. Vocational diseases; contracted partly in the employment of
two employers; apportioning compensation 649
14. Weekly payments required 649
15. Place of payment of compensation 650
16. State institution; compensation payments part of current ex-
penses 650
17. Payment of less than statutory amount as basis of release . . 650
18. Divorced man paying alimony is "single" for compensation
purposes 651
ARTICLE B— Permanent Total Disability 651
1. Total incapacity; refusal of former employers to supply work
to injured employe1 : 651
2. Incapacity to do regular work 651
3. Injuries amounting to permanent total disability 652
ARTICLE C— Permanent Partial Disability 653
1. Minimum amount payable in all cases of specific indemnity 653
2. Under schedule for specific indemnities two weeks' waiting
period should not be deducted 653
XX • CONTENTS
PAGE
3. Consecutive and not concurrent payment for temporary dis-
ability and specific indemnity 654
4. Loss of several fingers; consecutive payments for each, or con-
current payments for all 655
5. Amputation of finger when wound healing 655
6. Loss of use of fingers without amputation 656
7. Injuries to and losses of fingers not otherwise classified 656
8. Loss of toes .„ 658
9. Loss of one eye 659
10. One eye so injured that both cannot be used 664
1 1 . Complete blindness caused to eye of which sight partially de-
stroyed 664
12. Removal of eye already blind 665
13. Loss of hand when other hand already injured 665
14. Injuries to legs 666
ARTICLE D— Temporary Total Disability 667
1. Unsuccessful efforts to obtain employment 667
2. Waiting for opportunity to have operation performed at
hospital 667
3. Heart .trouble developing after injury 668
4. Workmen earning same wages as before the injury 668
5. Miscellaneous specific cases in which compensation was
awarded 668
ARTICLE E — Temporary Partial Disability 670
1. Ability to do light work after accident; exaggeration of
injury 670
2. Inability to obtain employment in district where workman
"ves 671
3. Wages and compensation after accident need not equal wages
before injury 672
4. Workmen receiving same wages after as (or higher than) be-
fore injury 672
5. Wages and compensation in excess of wages before accident 673
6. Clumsiness due to injury as ground of incapacity. 674
7. Disability by disease accelerated by accident; basis of com-
pensation 074
8. Disability made more serious by illness or other contributing
cause 074
9. Re-current attacks of industrial disease 675
10. Miscellaneous injuries for which compensation awarded 675
CONTENTS XXI
PAGE
ARTICLE F — Miscellaneous Cases 676
1. Double compensation 676
2. Deducting insurance benefits to which employes contribute 677
ARTICLE G — Specific Provisions of Various Statutes 678
Arizona 678
California 679
Connecticut 685
Illinois 687
Iowa 691
Kansas 694
Maryland 694
Massachusetts 695
Michigan 697
Minnesota 699
Nebraska 701
Nevada 704
New Hampshire 705
New Jersey 706
New York v 709
Ohio 712
Oregon 714
Rhode Island 718
Texas 720
Washington 721
West Virginia 723
Wisconsin 724
CHAPTER XIII
WAGES WHICH ARE THE BASIS OF COMPENSATION
ARTICLE A— Introduction 730
1. In general 730
2. Actual earnings not "usual" wages paid in that employment 730
3. Absence of agreement as to rate of wages 731
4. Basis of compensation when workman employed in different
grades 731
5. Longshoremen employed by several employers 733
XX11 CONTENTS
PAGE
6. Adding compensation from all sources, including rent, etc . . 735
7. "Tips" as part of earnings 738
8. Intermittent employment due to strikes and other causes 739
9. Employment for less than a week 742
10. Change in rate of wages during year 742
11. Father dependent of son; allowance for son's maintenance. . 743
12. Compensation for previous injury not included in determin-
ing basis of compensation for subsequent injury causing
death. . . * 744
13. Deducting poor-law relief received by dependent 744
14. Deducting wages paid to an assistant in computing compen-
sation 745
15. Wages paid seaman under shipping act taken into account
in awarding compensation 745
ARTICLE B — Specific Provisions op Various Statutes, with
Notes 746
Arizona 746
California 746
Connecticut 748
Illinois 748
Iowa 750
Kansas 751
Maryland 752
Massachusetts 753
Michigan 754
Minnesota 75g
Nebraska 757
Nevada , 757
New Hampshire 757
New Jersey 75g
New York 7gg
otio 760
Oregon 761
Rhode Island 7gj
Texas yen
Washington *rg<j
West Virginia 7go
Wisconsin 704
CONTENTS XX111
CHAPTER XIV
NOTICES OF INJURIES AND OF CLAIMS FOR COMPENSATION
PAGE
ARTICLE A— Introduction 766
1. In general 766
2. Decisions under the British statute 767
ARTICLE B — Specific Provisions of Various Statutes 769
Arizona f 769
California 770
Connecticut 772
Illinois 773
Iowa 774
Kansas 774
Maryland 775
Massachusetts 775
Michigan 778
Minnesota • 779
Nebraska -.. 779
Nevada 780
New Hampshire 780
New Jersey 781
New York 782
Ohio 783
Oregon 784
Rhode Island 784
Texas < 785
Washington 787
West Virginia 787
Wisconsin 788
CHAPTER XV
administration and procedure
ARTICLE A — Introduction 791
. 1. Various methods of adrninistration 791
2. Liberal rules as to procedure 795
3. Right of workman' to take out letters of administration on
estate of deceased employer 795
4. Specifying amount when making claim for compensation . . . 795
XXIV CONTENTS
PAGE
5. Necessity of appointment of guardian ad litem when interests
of incompetent involved 795
6. Agreement to pay compensation is not a consent to submit
to arbitration 796
7. Agreement for compensation bar to arbitration proceedings. 796
8. Effect of agreement to pay compensation " during incapacity " 797
9. Award "during total or partial incapacity" 797
10. Amending pleadings by arbitrator 797
11. Burden of proving the injury was caused by accident is on
the workman 797
12. Inferences in the absence of direct proof 798
13. Burden of proof as to serious and wilful misconduct 800
14. Evidence 800
15. Physician's certificate as evidence 801
16. Sufficiency of finding of incapacity , 801
17. Finding on question of fact as to which there is any evidence
to support. 802
18. Suspensory award 804
19. Award to terminate at specified date in future 804
20. Admission in answer that compensation has been paid
amounts to admission of claim made 804
21. Apportioning compensation among dependents; procedure. . 804
22. Enforcing payment of award; body execution 804
23. New trial ; arbitrator cannot grant 805
24. Signing receipts by workmen 805
25. What amounts to "recovery" of compensation 805
26. Offset of overpayment of compensation 805
ARTICLE B — Digests of Various Statutes, with Notes and
Forms 806
Arizona ggg
California , ggg
Connecticut g24
Illinois 815
Iowa 834
Kansas qqe
Maryland cog
Massachusetts cog
Michigan o^o
Minnesota ' ogg
Nebraska ago
CONTENTS XXV
PAGE
Nevada 863
New Hampshire 867
New Jersey 867
New York 873
Ohio 874
Oregon 878
Rhode Island 878
Texas 879
Washington 881
West Virginia 881
Wisconsin 887
CHAPTER XVI
APPEALS
ARTICLE A— Introduction 892
1. In general 892
2. Points raised below only considered on appeal 893
3. Reviewing facts 893
4. Determining adequacy of lump sum paid under agreement . . 894
5. Order terminating weekly payments not appealed from is
final 894
6. Dismissal of action and making decision in arbitration pro-
ceedings 894
7. Award of costs 895
ARTICLE B — Specific Provisions of Various Statutes 895
Arizona 895
California 895
Connecticut 895
Illinois 896
Iowa 896
Kansas 897
Maryland 897
Massachusetts 897
Michigan 897
Minnesota 898
Nebraska 898
Nevada 898
New Hampshire 898
XXVI CONTENTS
PAGE
New Jersey « 898
New York 898
Ohio 899
Oregon 899
Rhode Island 899
Texas 899
Washington 900
West Virginia -- 900
Wisconsin %. 900
CHAPTER XVII
MODIFYING AWARDS OTHERWISE THAN BY APPEAL
ARTICLE A— Introduction 902
1. Circumstances must have changed to justify review 902
2. Res adjudicata 903
3. New medical evidence on review to show changed circum-
stances 904
4. Terms of application for review binding on applicant 904
5. Modifying award from a date earlier than the date of the
application to modify 904
6. Terminating compensation payments 905
7. Question of recovery from injury is one of fact 906
8. Increasing age as affecting disability 907
9. Refusal to submit to surgical operation 907
10. Reducing payments by reason of ability to do light work . . 908
11. Inability to obtain light work 909
12. Offering suitable employment 910
13. Reducing payments after offer and refusal of light work 910
14. Failure of workman to get or attempt to get light work 911
15. Disability from disease following injury 911
16. Workman permanently injured but suffering increased dis-
ability from disease 912
17. Rolling-mill hand able to work with glasses when vision im-
paired 912
18. Disability due to idleness and softened muscles 913
19. Disability due to brooding over injury. 913
20. Inability to get employment due to slackness of work 914
21. Infant earning as much after as he did before accident 914
22. ProbaHe earnings of infant in different grade 914
23. Profits of business enterprise as affecting right to reduce com-
pensation gig
CONTENTS XXVH
PAGE
24. Apportioning loss between employer and employe1 915
25. Allowance for expenses when work furnished away from home 916
26. Diminishing payments; burden of proof 916
27. Keeping proceeding alive by payment of nominal sum 917
28. Recovering overpayments of compensation 918
29. Permanent partial disability; ability to earn same wages as
before accident 918
30. Increased susceptibility to occupational disease 919
31. Inability to earn old wages in new occupation 919
32. Inability to do same work as before injury 920
33. Lack of evidence as to exact amount workman is able to earn 920
ARTICLE B — Specific Provisions of Various Statutes 921
Arizona 921
California 921
Connecticut 921
Illinois 921
Iowa 921
Kansas 921
Maryland 921
Massachusetts 922
Michigan '. 922
Minnesota 922
Nebraska 922
Nevada 922
New Hampshire 922
New Jersey 923
New York 923
Ohio 923
Oregon 923
Rhode Island 923
Texas 923
Washington 924
West Virginia 924
Wisconsin 924
CHAPTER XVIII
physical examination of claimants for compensation
ARTICLE A— Introduction 925
1. Demand that workman's attorney be present at medical
examination , 925
XXV1U CONTENTS
PAGE
2. Unreasonable demand that workman's medical attendant
be present at examination 926
3. Cause of death submitted to medical referee 926
4. Refusal of workman to undergo surgical operation.. 927
5. Medical referee's report not conclusive on arbitrator 928
ARTICLE B — Specific Pbo visions op Various Statutes 928
Arizona «►. 928
California 928
Connecticut 929
Illinois 929
Iowa 929
Kansas 929
Maryland 929
Massachusetts 930
Michigan 930
Minnesota 930
Nebraska 931
Nevada 931
New Hampshire 931
New Jersey 931
New York 931
Ohio 932
Oregon 932
Rhode Island 932
Texas 932
Washington 932
West Virginia 933
Wisconsin 933
CHAPTER XIX
REPORTS BY EMPLOYERS OF INJURIES TO WORKMEN
ARTICLE A — Specific Provisions of Various Statutes 934
Arizona , 934
California 934
Connecticut 934
Illinois 935
Iowa 935
Kansas g3g
CONTENTS XXIX
PAGE
Maryland 935
Massachusetts 935
Michigan 936
Minnesota 936
Nebraska .937
Nevada 937
New Hampshire 937
New Jersey 937
New York 937
Ohio 938
Oregon 938
Rhode Island < 938
Texas ' 938
Washington 938
West Virginia .• 938
Wisconsin 939
CHAPTER XX
COMPROMISING COMPENSATION CLAIMS
ARTICLE A— Introduction 940
1. In general ; 940
ARTICLE B — Specific Provisions of Various Statutes 945.
Arizona 945
California 945
Connecticut 946
Illinois 946
Iowa 946
Kansas. i 946
Maryland 946
Massachusetts 947
Michigan 947
Minnesota 947
Nebraska 947
Nevada 947
New Hampshire 948
New Jersey 948
New York 949
Ohio • • 949
XXX CONTENTS
PAGE
Oregon 949
Rhode Island 950
Texas 950
Washington 950
West Virginia 950
Wisconsin 950
• CHAPTER XXI
COMMUTATION OP CLAIMS AND AWABDS
ARTICLE A — Specific Provisions of Various Statutes 951
Arizona , 951
California 952
Connecticut. , ; 952
Illinois 952
Iowa 953
Kansas 953
Maryland 953
Massachusetts 953
Michigan 954
Minnesota 954
Nebraska 954
Nevada. , . . 954
New Hampshire 955
New Jersey 955
New York 955
Ohio 956
Oregon, 956
Rhode Island 956
Texas 956
Washington 956
West Virginia 957
Wisconsin 957
CHAPTER XXII
INSURANCE OF COMPENSATION
ARTICLE A — Introduction 953
1. Character and necessity of such insurance 958
CONTENTS XXXI
PAGE
ARTICLE B — Specific Provisions of Various Statutes 962
Arizona 962
California 962
Connecticut , 965
Illinois 966
Iowa ! 969
Kansas v 972
Maryland 972
Massachusetts 973
Michigan 974
Minnesota : 976
Nebraska 978
Nevada 980
New Hampshire 980
New Jersey 980
New York 980
Ohio 983
Oregon 984
Rhode Island 984
Texas 984
Washington 985
West Virginia 985
Wisconsin 986
CHAPTER XXIII
FEDERAL COMPENSATION ACT
ARTICLE A — Classified Decisions of Department under Act . 991
1. Introduction 991
2. Hazardous employments 991
3. Not hazardous employments 992
4. What is an arsenal 993
5. What is employment in a navy yard 993
6. Construction of fortification work 993
7. Construction work in the reclamation of arid lands 994
8. What is a manufacturing establishment 994
9. What is not a manufacturing establishment 996
10. Employe" of manufacturing establishment working elsewhere 996
11. Artisans or laborers only covered by act 997
12. Nature of work, not title, fixes status of employe' 997
XXX11 CONTENTS
PAGE
13. Who is an artisan or laborer? 998
14. Who is not an artisan or laborer? 999
15. Piece workers 1001
16. Services and employments without the act 1001
17. Independent contractor 1003
18. Employe1 of contractor 1003
19. "Injury shall continue for more than fifteen days" 1003
20. Negligence or misconduct , ■ 1004
21. Acts not negligent; compensation granted 1010
22. Acts held to be negligent; compensation refused. . 1024
23. Contributing cause of disability 1030
24. Injury, definition of 1031
25. Injury means disability 1031
26. Injuries before act passed 1032
27. Ability to resume work 1032
28. Successive claims 1033
29. Computing year during which compensation is payable . . 1033
30. Wages as basis of compensation 1034
31. Dependents 1035
32. Filing claim 1042
33. Resignation of employe1 after injury 1046
34. Medical examination 1047
35. Physician's certificate 1048
36. Administration 1048
ARTICLE B — Text of Federal Acts 1049
VOLUME II
CHAPTER XXIV
TEXTS OP THE COMPENSATION ACTS OP THE AMERICAN STATES
Arizona 1053
California . jq7 ^
Connecticut W44:
IUinois ..'..'. 1163
Iowa 1190
Kansas 1218
Maryland 2237
Massachusetts J244
CONTENTS XXX111
PAGE
Michigan 1269
Minnesota 1299
Nebraska 1322
Nevada 1346
New Hampshire 1368
New Jersey 1375
New York 1393
Ohio 1436
Oregon 1485
Rhode Island 1509
Texas 1528
Washington 1543
West Virginia 1572
Wisconsin 1593
CHAPTER XXV
CANADIAN WORKMEN'S COMPENSATION LAWS
Alberta 1616
British Columbia 1640
Manitoba 1655
New Brunswick 1678
Nova Scotia 1698
Quebec 1713
Saskatchewan 1725
CHAPTER XXVI
BRITISH WORKMEN'S COMPENSATION AND NATIONAL INSURANCE ACTS
/
Workmen's Compensation Act 1735
National Insurance Act. . . v 1763
CHAPTER XXVII
GERMAN WORKMEN'S INSURANCE CODE
Text of the code with introductory analysis 1885
EXPLANATION OF ABBREVIATIONS
B. W. C. C. — Butterworth's Workmen's Compensation Cases. Reports
of English workmen's compensation cases from 1907 to 1913, five volumes,
published by Butterworth & Company, London, and edited by Judge
Ruegg and F. J. Coltman.
Cal. Indus. Ace. Bd. — California Industrial Accident Board. These
are decisions made by the California Board, but except for a very few
cases are not published. They are in manuscript form and were furnished
to the author by the Secretary of the Board.
(E. L.). — These letters before the title of a case indicate that the deci-
sion was under the common law or the Employers' Liability Acts as dis-
tinguished from Workmen's Compensation Acts.
Mass. Indus. Ace. Bd. — Massachusetts Industrial Accident Board.
These decisions were furnished to the author by the Secretary of the
Board. They were subsequently published in book form by the Board
in a volume entitled "Reports of Cases under the Workmen's Compensa-
tion Act, July 1, 1912, to June 30, 1913, inclusive."
Mich. Indus. Ace-. Bd. — Michigan Industrial Accident Board. These
decisions were furnished to the author by the Secretary of the Commission.
Many of them were published in The Indicator, an insurance newspaper
published in Detroit, but are not elsewhere published.
Ohio State Lia. Bd. Awd. — Ohio State Liability Board of Awards.
These are manuscript decisions furnished to the author by the Board and
are not published except in this work.
Op. Sol. Dep. C. & L. — Opinions of the Solicitor of the Department of
Commerce and Labor, of the United States. These decisions were pub-
lished in a volume issued from the Government Printing Office in 1912,
reporting the decisions of the Solicitor, under the Federal Compensation
Act, relating to certain government employes. The decisions covered the
period from August, 1908, to August, 1912.
W. C. C. — Workmen's Compensation Cases. English Workmen's
Compensation Cases, published by Butterworth & Company, edited by
R. M. Minton-Senhouse, nine volumes, including the cases decided from
1898 to 1907.
Wis. Indus. Com. — Wisconsin Industrial Commission. These decisions
are in manuscript form and are not elsewhere published. They were
furnished to the author by the Secretary of the Commission.
The other citations are to the regular reports which are well known and
need no special explanation.
xxxv
TABLE OF CASES
PACE
Aberdeen Steam Trawling &
Fishing Co. v. Gill (1907),
45 Scotch L. R. 247; 1 B. W.
C. C. 274 124
Abram Coal Co. v. Southern
(1903), 5 W. C. C. 125 737
Adams v. Acme White Lead &
Color Works, Mich. Indus.
Ace. Bd., Nov. 3, 1913.. .341, 373
Adams v. Southern Ry. Co.,
51 So. Rep. 987; Ala 445
Adams v. Thompson (1911),
5B. W. C. C. 19 514
Adams & West v. Iron Cliffs Co.,
78 Misc. 271; 44 N. W. Rep.
270 424
Adler, Frank, Re: Op. Sol. Dep.
C. & L., pp. 45, 46, 47, 48; de-
cision of the Comptroller of
the Treasury, p. 49 999
Admiral Fishing Co. v. Robin-
son (1910), 102 L. T. 203;
3 B. W. C. C. 247 124
Adolphus, A. B. Re: Op. Sol.
Dep. C. & L., p. 31; citing the
opinion of the Attorney Gen-
eral, dated May 17, 1909,
in the Clark case 1031, 1032
Adomitas v. Simmons Mfg.
Co., Wis. Indus. Ace. Bd.,
Jan. 31, 1912 486
Aga v. Harbach, 117 N. W. Rep.
669; 140 Iowa, 606 116
Agard, Fitz, Re: Op. Sol. Dep.
C. & L., p. 443 1035
Agler v. Michigan Agricultural
College, Michigan Industrial
Accident Board, Nov. 3, 1913;
The Indicator, Nov. 5, 1913,
p. 442 141, 170
PAGE
Aken v. Barnet & Aufsesser
Knitting Co., 118 App. Div.
463; 103 Supp. 1078 108
Alabama Great Southern Ry.
Co. v. Brock, 49 So. Rep. 453;
000 Ala. 000 408
Alabama Great Southern Ry.
Co. v. Hall, 105 Ala. 599; 17
S. Rep. 176 463
Albanese v. Stewart, 2 Brad-
bury's PI. & Pr. Rep. 189 . 12, 34, 61
Alcee, E. V. Re: Op. Sol. Dep.
C. &L., p. 42 ,...1001
Alcee, E. V., Re: Op. Sol. Dep.
C. & L., p. 337 1027
Aldinger v. Ransome Concrete
Co., Cal. Indus. Ace. Bd.,
Sept. 12, 1913 -....582,591
Allaway, Thomas, Re: Op. Sol.
Dep. C. &L., p. 473 1037
Allegar v. American Car &
Foundry Co., 206 Fed. Rep.
437 395
Allen v. Chehalis Lumber Co.,
112 Pac. Rep. 338; 000 Wash.
000 450
Allen v. Globe Indemnity Co.,
Mass. Indus. Ace. Bd 676
Allen v. Hixson, 36 S. E. Rep.
810; 111 Ga. 460 459,460
Alleyne, Archibald, Re: Op.
Sol. Dep. C. & L., p. 357. . . .1025
Alston, Frank, Re: Op. Sol. Dep.
C. & L., p. 330 1028
American Car and Foundry Co.
v. Adams, 99 N. E. Rep. 993;
178 Ind. 607 468
Amys v. Barton (1911), 5 B. W.
C. C. 117 514,801
Anaya, Salomon, Re: Op. Sol.
Dep. C. & L., p. 358 .1025
XXXVU
XXXVUL
TABLE OP CASES
Volume 2 begins at page 1053
PAGE
Anderson v. Balfour (1910), 44
Irish L. T. 168; 3 B. W. C. C.
588 506
Anderson v. Fife Coal Co. (1909),
47 Scotch L. R. 5; 3 B. W.
C. C. 539 435
Anderson v. Foley Bros., 124
N. W. Rep. 987; 110 Minn. 151 127
Anderson v. Pelham Hod Elevat-
ing Co., 129 App. Div. 639;
133Supp. 989 131
Andrew v. Failsworth Industrial
Soc. (1904), 90 L. T. 611; 6
W. C. C. 11 400,515
Andrewjeski, Anna, v. Wolverine
Coal Co., Mich. Indus. Ace.
Bd. March, 1913 755
Andrews v. Employers' Liability
Assurance Corporation, Mass.
Indus. Ace. Bd. (Appeal pend-
ing to Supreme Judicial Court) . 428
Anglo-Australian Steam Naviga-
tion Go. v. Richards (1911),
4B. W. C. C. 247 911
Anley's Executors v. Neale
(1907), 9 W. C. C. 34 674
Anslow v. Cannock, Chase Col-
liery Co. (1909), 1 K. B. 352;
S. C. (1909) A. C. 435 735
Anslow v. Cannock Chase Col-
liery Co. (1909), 100 L. T.
786; 2 B. W. C. C. 365.... 740
Anys v. Barton (1912), 1KB.
40 402
Appleby v. The Horseley Co. &
Lovatt (1899), 80 L. T. 853;
1 W». C. C. 103 739
Archambault v. London Guar-
antee & Accident Co., Mass.
Indus. Ace. Bd 579
Arkadelphia Lumber Co. v.
Smith, 78 Ark. 505; 95 S. W.
Rep. 800 412
Armitage v. Lancashire & York-
shire Ry. Co. (1902), 2 K. B.
178 400
PAGE
Armitage v. Lancashire & York-
shire Ry. Co. (1902), 86 L. T.
883; 4 W. C. C. 5 509
Armstead, G. M., Re: Op. Sol.
Dep. C. & L., p. 240 509
Armstrong v. West Coast Life
Ins. Co. 000 Utah, 000; 1214
Pac. Rep. 518 !.. 359
Arnold, W. E., Re: Op. Sol. Dep.
C. & L., p. 120 994
Arnott v. Fife Coal Co. (1911),
48 Scotch L. R. 828; 4 B. W.
C. C. 361 659
Ashley v. Lilleshall Co. (1911),
5B.W. C. C. 85 391
Astley v. R. Evans & Co. (1911),
104 L. T. 373; 4 B. W. C. C.
209; aff'd 4 B. W. C. C. 319. . 518
Atkinson, J. B., Re: Op. Sol.
Dep. C. & L., p. 197 393
Augusta, Bank of, v. Earle, 13
Pet. 519 58
Augusto v. Standard Lumber Co.
Cal. Indus. Ace. Bd., July 3,
1913 681
Avery, B. F. & Sons, v. Cottrill's
Guardian, 107 S. W. Rep. 332;
32 Ky. Law Rep. 914 474
Avery, Jack, Re: Op. Sol. Dep.
C. & L., p. 423 1004
B
Babcock & Wilcox . v. Young
(1911), 48 Scotch L. R. 298;'
4B. W. C. C. 367 732
Bacema, Nicolas, Re: Op. Sol.
Dep. C. & L., p. 333 1029
Bacon v. U. S. Mutual Accident
Assn., 123 N. Y. 304 358
Badolato, Samuele, Re: Op. Sol.
Dep. C. & L., p. 505 1043
Bageard v. Consolidated Trac-
tion Co., 64 N. J. L. 316; 45
Atl. Rep. 620; 49 L. R. A. 424;
81 Am. St. Rep. 498 1013
TABLE OP CASES
XXXIX
Volume 2 begins at page 1053
PAGE
Bagnall v. Levinstein (1906), 96
L. T. 184; 9 W. C. C. 100. .. . 107
Bailey v. Interstate Cas. Co., 8
App. Div. 127; 40 N. Y. Supp.
513; aff'd 158 N. Y. 723; 53
N. E. Rep. 1123 352, 395
Bailey v. Kenworthy (1906), 1
B. W. C. C. 371 732, 742
Bailey, E. E., Be: Op. Sol. Dep.
C. & L., p. 232 513
Bailey v. Plant (1900), 3 W. C. C.
209 805
Baiona v. Employers' Liability
Assur. Corp., Mass. Indus.
Ace. Bd 374
Baird, Elida A., Re: Claim No.
504, Ohio St. Lia. Bd. Awd.,
Nov. 11, 1912 623,761
Baird Co., William, v. Burley
(1908), 45 Scotch L. R. 416;
1 B. W. C. C. 7 509
Baker, S. W., Jr., Re: Op. Sol.
Dep. C. & L., p. 82..- 998
Baker's Adm'r v. Lexington & E.
Ry. Co., 89 S. W. Rep. 149;
28 Ky. Law Rep. 140 442
Baker v. Duwamish Mill Co.,
86 Pac. Rep. 167; 43 Wash. 467
Baker v. Jewell (1910), 3 B. W.
C. C. 503 804
Baker v. Mt. Shasta Power Co.,
Cal. Indus. Ace. Bd., May 28,
1913 681
Ball v. William Hunt & Sons
(1912), 5 B. W. C. C. 459. 661, 667
Ball v. William Hunt & Sons
(1911), 104 L. T. 327; 4 B. W.
C. C. 225 665
Ballou v. Potter, 106 S. W. Rep.
1178; 32 Ky. Law Rep. 779 .. . 502
Banister v. Kriger, 36 N. J. Law
J., 307; 000 N. J. Law, 000;
85 Atl. Rep. 1027. . . .653, 654, 955
Bargewell v. Daniel (1907), 123
L. T. J. 487; 9 W. C. C. 142 . . . 139
Barnabas' v. Bersham Colliery
PAGE
Co. (1910), 102 L. T. R. 621;
3B. W. C. C. 216 798
Barnabas v. Bersham Colliery
Co. (1910), 4B.W.C.C. 119.. 363
Barnes v. Nunnery Colliery Co.
(1911), 5 B. W. C. C. 195;
aff'g(1910),4B.W.C.C.43.. 496
Barrow v. B. R. Lewis Lumber
Co., 95 Pac. Rep. 682; 14
Idaho, 698 475
Bartlett v. Tutton & Sons (1901),
85 L. T. 531; 4 W. C. C. 133. 730
Bartonshill Coal Co. v. Reid, 3
Marq. H. L. Cases, 266 4
Bates v. • Davies' Executors
(1909), 2 B. W. C. C. 459 462
Bates-Smith v. General Motor
Cab Co. (1911), A. C. 188;
4 B. W. C. C. 249, aff'g
(1910), 3 B. W. C. C. 500 125
Baugh, R. W., Re: Op. Sol. Dep.
C. & L., p. 482 1035
Baynes v. Billings, 73 Atl. Rep.
625; 30 R. I. 53 473
Beach v. Public Service Ry. Co.
(Essex Com. Pleas), April,
1912; N. J. Law J 619
Beadle v. Milton and Others
(1903), 114 L. T. 550; 5 W. C.
C. 55 394
Beadle and Others v. Owners of
S. S. "Nicholas" (1909), 101
L. T. 586; 3 B. W. C. C. 102. . 895
Beale v. Fox (1909), 2 B. W. C.
C. 467 485
Beaumont v. Underground Elec-
tric Rys. Co. of London (1912),
5 B. W. C. C. 247 391
Bedore v. General Ice Delivery
Co., Mich. Indus. Ace. Bd.,
Oct. 15, 1913; The Indicator,
Oct. 20, 1913, p. 417 491
Beech v. Bradford Corporation
(1911), 4 B. W. C. C. 236.. 943
Beech v. Packard Motor Co.,
Mich. Indus. Ace. Bd., Oct.
xl
TABLE OF CASES
Volume 2 begins at page 1053
PAGE
15, 1913; The Indicator, Oct.
20, 1913, at p. 418 655, 656
Belgrave, Levi, Re: Op. Sol.
Dep. C. & L., $. 471 1037
Belknap v. Mervy-Elwell Co.,
Cal. Indus. Ace. Bd., May 27,
1913 493,591
Bell, George, Re: Op.*Sol. Dep.
C. & L., p. 92 996
Belmon, Constantin, Re: Op.
Sol. Dep. C. & L., p. 355. . . .1025
Belton Oil Co. v. Duncan, 127
S. W. Rep. 884; Tex. Civ.
App 472
Belt Ry. Co. of Chicago v.
Charters, 123 111. App. 322 ... . 457
Bender v. Owners of Steamship
"Zent" (1909), 100 L. T. 639;
2 B. W. C. C. 22 518
Benson v. Lancashire & York-
shire Ry. Co. (1903), 89
L. T. 715; 6 W. C. C. 20. .405, 435
Bentley v. Massachusetts Em-
ployes Insurance Association,
Mass. Indus. Ace. Bd. (Ap-
peal pending to Supreme Judi-
cial Court) 579
Bentley, A. & Sons Co., v.
Bryant, 147 S. W. Rep. 402;
148 Ky. 634 449
Bergemann v. Schwarzenbach,
Huber & Co. (Morris Common
Pleas), 36 N. J. Law J. 209. . 781
Bess v. Brownstein Louis Co.,
Cal. Indus. Ace. Bd., Sept. 2,
1913 681
Best v. New York Central & Hud-
son R. R. Co., 117 App. Div.
739; 102 Supp. 957 432
Bevan v. Energlyn Colliery Co.
(1911), 5B. W. C. C. 169.... 743
Bier, Anton v. City of Janesville,
Wis. Indus. Com., Feb. 15,
1912 669
Biggart v. S. S. "Minnesota"
(1911), 5 B. W. C. C. 68 419
PAGE
Birmingham Cabinet Manufac-
turing Co. v. Dudley (1910),
102 L. T. 619; 3 B. W. C. C.
169 906
Birmingham Rolling Mill Co. v.
Rockhold, 42 So. Rep. 96; 143
Ala. 115 450
Bist v. London & South Western
Ry. Co. (1907), 96 L. T. 750;
9 W. C. C. 19 481, 482
Black, J. D., Re: Op. Sol. Dep.
C. & L., p. 61 997
Black v. Travelers Insurance Co.,
Mass. Indus. Ace. Bd 359
Blackburn v. Cherokee Lumber
Co., 67 S. E. Rep. 915; 152
N. C. 361 472
Blackburn v. Lachman & Jacobi,
Cal. Indus. Ace. Bd., Oct. 7,
1913 592
Blackhurst, Elijah, Re: Op. Sol.
Dep. C. & L., p. 556 1031
Blaine, Edward, Re: Op. Sol.
Dep. C. & L., p. 89.... 994, 995
Blake v. Head, 106 L.T. Rep. 822 401
Blake v. Head (1912), 5 B. W.
C. C. 303 510
Blakey v. Blakey, 27 Mo. 39; .1000
Blanz v. Erie R. R. Co., 000 N.
J. Law, 000; 85 Atl. Rep.
1030 619
Block, Harry, Re: Op. Sol. Dep.
C. & L., pp. 333, 334 1018
Blount, Hinton, Re: Op. Sol.
Dep. C. & L.,p. 108 993
Blovelt v. Sawyer (1904), 1 K. B.
271;6W.C. C. 16 448
Blyth v. Sewell (1909), 2 B. W.
C C.476 137,271
Boag v. Lochwood Collieries
(1909) 47 Scotch L. R. 47;
3 B. W. C. C. 549 909
Boardman v. Scott & Whitworth
(1901), 3 W. C. C. 33, aff'd
(1901), 85 L. T. 502; 4. W. C.
C 1 366
TABLE OF CASES
xli
Volume 2 begins at page 1053
PAGE
Boldt v. New York Central Ry.
Co., 18 N. Y. 432 429
Bonaldi v. Hamburg-Am. Line,
36 N. J. Law J. 302. . .655, 734, 758
Bonnin v. Town of Crowley, 36
So. Rep. 842; 112 La. 1025. . 467
Boon v. Quance, No. 1 (1909),
102 L. T. 443; 3 B. W. C. C.
106 121, 122
Booth v. Aetna Life Ins. Co.,
Mass. Indus. Ace. Bd 380
Borgnis v. Falk Co., 147 Wis.
327; 133 N. W. Rep. 209;
Bradbury's Workmen's Com-
pensation and State Ins. L.
(1st Ed.), p. 656; 3 N. C. C. A.
649 11,12,29,32
Borland v. Watson, Gow & Co.
(1911),49Sc.L.R.10;5B.W.
C. C. 514 367
Boston Navy Yard, Re: query of
naval constructor of, Op. Sol.
Dep. C. & L., p. 263 1032
Boswell v. Gilbert (1909), 2 B.
W. C. C. 251 529
Bowen, William, Re: Op. Sol.
Dep. C. & L., p. 258 1033
Bowhill Coal Co. v. Malcolm
(1910), 47 Scotch L. R. 449;
3B. W. C. C. 582 914
Bowhill Coal Co. v. Neish and
Others (1908), 46 Scotch L. R.
250; 2 B. W. C. C. 253. .581, 582
Bowie v. Coffin Valve Co., 86
N. E. Rep. 914; 200 Mass.
571 111,129
Boyan, J. H., Re: Op. Sol. Dep.
C. & L., p. 430 1047
Boyd v. Blumenthal, 52 Atl.
Rep. 330; 3 Pennewill (Del.),
564 459
Boyd v. Doharty (1908), 46
ScotchL.R.71;2B.W. C.C.
257 801
Boyd v. Pratt, 72 Wash. 306;
130 Pac. Rep. 371 632
PAGE
Boyd v. Travelers Ins. Co.,
Mass. Indus. Ace. Bd 394
Boyle v. Columbian Fire Proof-
ing Co., 182 Mass. 93; 64
N.E.Rep.726 445
Boyle v. Min. Co., 9 New Mex.
237 1000
Brackrog v. Macaulay Foundry
Co., Cal. Indus. Ace. Bd.,
Sept. 4, 1913 679
Bradley v. Salt Union (1906),
122 L. T. J. 302; 9 W. C. C.
31 488
Brady v. Standard Oil Co., Cal.
Indus. Ace. Bd., Aug. 4, 1913 682
Braithwaite & Kirk v. Cox
(1911), 5 B. W. C. C. 77 919
Branch, G. W., Re; Op. Sol.
Dep. C. & L., p. 467 1036
Brandy v. Owners of S. S.
"Raphael" (1910), 4 B. W.
C. C. 6, aff'd by House of
Lords (1911), 4 B. W. C. C.
307 736
Branford v. North Eastern Rail- t
way Co. (1910), 4 B. W. C. C.
84 911
Breakwell v. Clee Hill Granite
Co. (1911), 5 B. W. C. C. 133 768
Brice v. Edward Lloyd (1909),
2 K. B. 804; 2 B. W. C. C.
26 422, 448
Briggs v. Mitchell (1911), 48
Scotch L. R. 606; 4 B. W. C. C.
400 581
Brinkley, William A. Re: Op.
Sol. Dep. C. & L., p. 485. . . .1040
Brintons, Limited, v. Turvey
(1905), A. C. 230, 7 W. C. C.
1 358
Brintons, Limited, v. Turvey; 7
Minton-Senhause W. C. C. 1
(Anthrax) See page 358 349
British & South American Steam
Navigation Co. v. Neil (1910),
3B.W.C.C.413 145
xlii
TABLE OF CASES
Volume 2 begins at page 1053
PAGE
Broadway Coal Min. Co. v.
Robinson, 150 S. W. Rep.
1000; 150 Ky. 707 440
Broderick v. Detroit Union R.
Sta. & Depot Co. 56 Mich.
261; 22 N. W. Rep. 802
420, 437, 466
Broderick v. Londfcn County
Council (1908), 1 B. W. C. C.
219 370
Bronzetti v. Employers' Liability
Assurance Corporation, Mass.
Indus. Ace. Bd 661
Brooker v. Warren (1907), 23
T. L. R. 201; 9 W. C. C. 26. . 484
Broughton, Joseph, Re: Op. Sol.
Dep. C. & L., p. 434 1004
Brousset v. Fresno Flume and
Lumber Co., Cal. Indus. Ace.
Bd., Oct. 9, 1913 667
Brown v. Byroads, 47 Ind. 435 . . 460
Brown, J. R., Re: Op. Sol. Dep.
C. & L., p. 85 1000
Brown, R. L., Re: Op. Sol. Dep.
*C. & L., p. 108 993
Brown, Thomas, J., v. City of
Mauston, Dec. Wis. Indus.
Com., Feb. 29, 1912. .. .204, 788
Brown v. J. I. Thornycroft & Co.
(1912), 5 B. W. C. C. 386 ... . 660
Brown v. Kidman (1911), 4 B.
W. C. C. 199 362
Brown v. Scott (1899), 1 W. C. C.
11 500
Brown v. Shirley Hill Coal Co.,
94 N. E. Rep. 574; 47 Ind.
App. 354 :... 478
Brown v. The South Eastern &
Chatham Railway Co.'s Man-
aging Committee (1910), 3
B. W. C. C. 428 737,738
Brown v. Toledo & O. C. Ry. Co.,
19 Ohio Cir. Ct. Rep. 510 469
Bryant v. Fissell, 000 N. J. Law,
000; 86 Atl. Rep. 458. 349, 350,
402, 403, 422, 507, 867
PAGE
Bryket v. Lake Shore & M. S.
Ry. Co., 80 N. E. Rep. 1124;
000 Ohio, 000; aff'g 29 Ohio
Cir. Ct. Rep. 614 433
Brzotek v. Illinois Steel Co.,
Wis. Indus. Com., July 22,
1912 669
Buckley v. London & India
Docks (1909), 127 L. T. J.
521; 2 B. W. C. C. 327 736
Buckley v. New York Central
& H. R. Co. 126 Supp. 480. . 436
Bullard, F. S., Re: Op. Sol. Dep.
C. & L., p. 111.. 993
Bunce, William, Re: Op. Sol. Dep.
C. & L., p. 186 389
Bunting, Richard, Re: Op. Sol.
Dep. C. & L., p. 391 1022
Burgess, W. E., Re: Op. Sol.
Dep. C. & L., p. 116 994
Burgess & Co. v. Jewell (1911),
4 B. W. C. C. 145 913
Burke, C. A., Re: Op. Sol. Dep.
C. & L. p. 110 993
Burns, David, Re: Claim No. 3,
Ohio Indus. Ace. Bd., May 22,
1912 555,556,673
Burns, J. J.( Re: Op. Sol. Dep.
C. & L., p. 364 1017
Burns v. Manchester & Salford
Wesleyan Mission (1908), 1 B.
W. C. C. 305 119
Burrell v. Avis (1898), 1 W. C. C.
129 488
Burton v. Chapel Coal Co. (1909,)
46 Sc. L. R. 375; 2 B. W. C. C.
120 303
Burwash v. F. Leyland & Co.
(1912), 5B. W. C. C. 663.... 516
Busby v. Richardson (1901), 3
W. C. C. 54 796
Butler v. Burton-on-Trent Union
(1912), 5 B. W. C. C. 355. . . . 362
Butler v. Pacific Wakefield Co.
et al., Cal. Indus. Ace. Bd.,
Sept. 6, 1913 666
TABLE OF CASES
xliii
Volume 2 begins at page 1053
PAGE
Buzby, H. F., Re: Op. Sol. Dep.
C. & L., p. 112 993
Byles v. Pool and Another
(1909), 2 B. W. C. C. 484. ... 744
Byrne, William, Deceased, Mat-
ter of (1910), 44 Irish L. T. 98;
3 B. W. C. C. 591 795
Byrne v. Baltinglass Rural Dis-
trict Council & Kelly (1911),
45 Ir. L. T. 206; 5 B. W. C. C.
566 132
Cadwalader, Ray, Re: Op. Sol.
Dep. C. & L., p. 144 1002
Cain v. Leyland & Co. (1906),
1 B. W. C. C. 368 731, 732
Caldwell v. Iowa State Travel-
ing Men's Association, 000
Iowa, 000; 136 N. W. Rep. 678 353
Cale, C. E., Re: Op. Sol. Dep. C.
&L., p. 113 994
Callender, Lyall, Re: Op. Sol.
Dep. C. & L., p. 512 1044
Cambrook v. George (1903), 5
W. C. C. 26 472
Cammell, Laird & Co. v. Piatt
(1908), 2 B. W. C. C. 368. . . . 673
Campbell v. Detroit United Ry.,
Mich. Indus. Ace. Bd., Oct. 15,
1913; The Indicator, Oct. 20,
1913, p. 417 382
Canavan v. Owners of the Steam-
ship "Universal" (1910), 3 B.
W. C. C. 355 415
Cannon v. Fargo, 138 App. Div.
20; 122 Supp. 576 501
Capitol Brass Works v. Holle,
Dec. of Mich. Arbitration
Committee, February 1, 1913. 669
Capron v. Strout, 11 Nev. 304. .1000
Cardiff Corporation v. Hall
(1911), 104 L. T. 467; 4 B. W.
C. C. 159 909
Carey, 'Clara, Re: Op. Sol. Dep.
C.&L.,p.llO 993
PAGE
Carlin v. Alexander Stephen &
Sons (1911), 48 Sc. L. R. 862;
5B. W. C. C. 486 920
Carnegie Steel Co. v. Rowan, 39
Ohio Cir. Ct. 202 444
Carney, John, Re: Op. Sol. Dep.
C.&L., p. 136 992
Carolan v. Harrington & Sons
(1911), 2 K. B. 733; 4 B. W.
C. C. 253 927
Carrero, Placido, Re: Op. Sol.
Dep. C. & L., p. 402 1019
Carroll, David, Re: Op. Sol. Dep.
C.&L., p. 285 1032
Carroll v. Gray and Sons (1910),
47 Scotch L. R. 646; 3 B. W.
C. C. 572 907
Carswell v. Sharpe and Others
(1910), 47 Scotch L. R. 335;
3 B. W. C. C. 552 124
Carter, Simeon, Re: Op. Sol.
Dep. C. & L., p. 339 1026
Carter v. Great Western Power
Co., Cal. Indus. Ace. Bd.,
Jan. 13, 1913 682
Case v. Colonial Wharves (1905),
8W.C.C. 114 742
Caspar v. Lewin, 109 Pac. R.
657; 82 Kans. 604 475
Cassidy, James, Re: Op. Sol.
Dep. C. & L., p. 142 1002
Cassidy, J. O., Re: Op. Sol. Dep.
C.&L., p. 224 405
Caton v. Summerlee & Mossend
Iron Co. (1902), 39 Scotch L.
R. 762 433
Cawdor and Garnant Collieries,
The, v. Jones (1099), 3 B. W.
C. C. 59 904
Central Kentucky Traction Co.
v. Miller, 153 S. W. Rep. 750;
147 Ky. 110 457,504
Central Kentucky Traction Co.
v. Smedley, 150 S. W. Rep.
658; 150 Ky. 598 410
Central of Georgia Ry. Co. v.
xliv
TABLE OP CASES
Volume 2 begins at page 1053
PAGE
McWhorter, 42 S. E. Rep. 82;
115 Ga. 476 465
Central of Georgia Ry. Co. v.
Mullins, 66 S. E. Rep. 1028;
7 Ga. App. 381 458
Central R. R. of N. J. v. Jersey
City, 70 N. J. Law, 81 39
Challis v. London & Squth West-
ern Ry. Co. (1905), 7 W. C. C.
23 400,507
Chambers, Joseph, Re: Op. So.
Dep. C. & L., pp. 226, 228. .. . 425
Chamlee v. Planters Hotel Co.,
134 S. W. Rep. 123; 000 Mo.
App. 000 457
Chandler v. Great Western Rail-
way Co. (1912), 5 B. W. C. C.
254 356
Chandler v. Smith & Son (1899),
1 W. C. C. 19 672
Charing Cross, Euston and
Hampstead Ry. Co. v. Boots
(1909), 101 L. T. 53; 2 B. W.
C. C. 385 905
Charles v. Walker (1909), 25 L.
T. R. 609; 2B. W.C.C.5.... 800
Chase, James L., Jr., re, Claim
No. 3493, Ohio Indus. Ace.
Bd., May 19, 1913 453
Cheek v. Harmsworth Bros.
(1901), 4 W. C. C. 3 358
Cheevers v. Fidelity & Deposit
Company of Maryland, Mass.
Indus. Ace. Bd. Rep. Cas.
1913, p. 365 114
Chester E. Hanson v. State of
Wisconsin, Dec. Wisconsin
Industrial Commission, Feb. 4,
1913 208
Chicago, R. I. & P. Ry. Co.
v. Oldridge, 33 Texas Civ. Ap.
436; 76 S. W. Rep. 581 419
Chicago, R. I. & P. Ry. Co. v.
Smith, 63 Pac. Rep. 294; 10
Kans. App. 162 466
Chielinsky v. Hoopes & Towns-
FAGE
end Co., 40 Atl. Rep. 1127; 1
Marv. (Del. Super.) 273 459
Chisholm v. Walker & Co.
(1908), 46 Scotch L. R. 24; 2
B. W. C. C. 261 128
Christ v. Pacific Telephone and
Telegraph Co., Cal. Indus. Ace.
Bd., April 25, 1912. .661, 806, 807
Christiansen v. McLellan, 133
Pac. Rep. 434; 000 Wash. 000 113
Christy v. Standard Oil Co.,-
Cal. Indus. Ace. Bd., May 10,
1912 550,807
Chitty v. Nelson (1908), 2 B. W.
C. C. 496 437
Cianti v. Mt. Whitney Power
and Electric Co., Cal. Indus.
Ace. Bd., Feb. 7, 1913. .664, 945
Cicalese v. Lehigh Valley R. Co.,
69 Atl. Rep. 166; 000 N. J.
Law 000 412
Cincinnati, N. O. & T. P. Ry.
Co. v. Daniels, 141 S. W. Rep.
1194; 146 Ky. 86 430
Cincinnati, N. O. & T. P. Ry.
Co. v. Troxell, 137 S. W. Rep.
543; 143 Ky. 765 443
Clark, A. E., Re: Op. Sol. Dep.
C. &L., p. 34 1001
Clark, A. E, Re: Op. Sol. Dep.
C. &L., p. 92 995
Clark, A. E., Re: Op. Sol. Dep.
C. & L., p. 299 1034
Clark, Edward, Re: Op. Sol. Dep.
C. & L., p. 371 1012
Clark v. Gas Light & Coke Co.
(1905), 7 W. C. C. 119 667
Clark, George, Re: Op. Sol. Dep.
C. & L., p. 399 1023
Clarke, Case of 342
Clarke, A. E., Re: Op. Sol. Dep.
C.&L.,p. 150 341
Clarke, F. A. P., Re: Op. Sol.
Dep. C. & L., p. 105 995
Clarke, David, Re: Op. Sol.
Dep. C. & L., p, 381 1015
TABLE OF CASES
xlv
Volume 2 begins at page 1053
Clarke v. Louisville & N. R. Co.,
Ill S. W. Repr. 344; 33 Ky.
Law Rep. 797 117
Clatworthy v. R. & H. Green
(1902), 86 L. T. 702; 4 W. C.
C. 152 574
Clayton and Shuttleworth v.
Dobbs (1908), 2 B. W. C. C.
488 648
Clem v. Chalmers Motor Car Co.,
Mich. Indus. Ace. Bd., March,
1913 489
Clements, E. B., Re: Op. Sol.
Dep. C. & L., p. 190 361
Cleveland, C, C. & St. L. Ry.
Co. v. Carr, 95 111. App. 576. . 465
Cleverly & Others v. Gas Light
& Coke Co. (1907), 1 B. W.
C. C. 82 567
Clifford v. Joy (1909), 43 Irish
L. T. 193; 2 B. W. Q. C. 32. . 462
Clover, Clayton & Co. v. Hughes
(1910), A. C. 242; 3 B. W. C.
C. 275, aff'g 2 K. B. 798; 2 B.
W. C. C. 15 364-365
Coakley v. Coakley, 215 Mass.
000; 103 N. E. Rep 930 604
Cochran v. Contractors Mutual
Liability Ins. Co., Mass. Indus.
Ace. Bd 489
Cocking v. Ward, 48 S. W. Rep.
287 1000
Cockrala, Sofia, v. Montreal
Mining Co., Wis. Indus. Com.,
Jan. 30, 1913 638
Coe v. Fife Coal Co. (1909),
46 Scotch L. R. 325; 2 B. W.
C. C. 8 364
Cokolon v. Ship '"Kentra"
(1912), 5 B. W. C. C. 658 421
Cole v. Evans, Son, Lescher &
Webb (1911), 4 B. W. C. C.
138 511
Cole v. McNeil, 99 Ga. 250... 1000
Colmeneiro, Miguel, Re: Op. Sol.
Dep. C. & L., p. 327 1030
PAGE
Columbia Greosoting Co. v.
Beard, 99 N. E. Rep. 823;
000 Ind. 000 457
Conley v. Lincoln Foundry Co.,
14 Pa. Sup. Ct. 626 467
Connell v. New York Central
& H. R. R. Co., 144 App. Div.
664; 129 Supp. 666 476
Conway v. Belfast & Northern
R.R.Co., lllr. L.R.345.... 5
.Conway and Another v. Pump-
herston Oil Co. (1911), 48
Scotch L. R. 632; 4 B. W.
C. C. 392 498
Cook v. Dodge, 6 La. Ann. 276 . . 135
Cordler v. Keffel, 119 Pac. R.
658; 161 Cal. 475 420
Corrigan, J. J., Re: Op. Sol. Dep.
C. & L., p. 44 1001
Corrigan v. Hunter, 122 S. W.
Rep. 131; 139 Ky. 315; rehear-
ing denied, 130 S. W. Rep.
798; 000 Ky. 000 117
Cory Brothers & Co. v. Hughes
(1911),2K.B.738;4B. C.C.
291 912
Costello, A., Re: Claim No. 4268,
Ohio St. Lia. Bd. Awd., May
19, 1913 645
Cotter v. Johnson (1911), 45 Ir.
L. T. 259; 5 B. W. C. C. 568. . 137
Coulthard v. Consett Iron Com-
r pany, Limited 569
Cournoyer, F. J., Re: Op. Sol.
Dep. C. & L., p. 582 357
Courtney v. Baker, 70 N. Y.
1 474
Cousins, Edgar, Re: Op. Sol.
Dep. C. & L., p. 356 1025
Cowan, A. J., Re: Op. Sol. Dep.
C.&L., p. 146 1002
Coward, James, Re: Op. Sol. Dep.
C.&L., p. 350 1025
Cox v. Braithwaite & Kirk
(1912), 5 B. W. C. C. 648. ... 920
Craig, Eva Isabelle, Re; Claim
xlvi
TABLE OF CASES
Volume 2 begins at page 1053
PAGE
No. 2208, Ohio Indus. Aoc.
Bd., Mar. 21, 1913 511
Crandall, William G., Re: Op.
Sol. Dep. C. & L., p. 58. .997,
998, 1011
Cranfield v. Ansell (1910), 4
B. W. C. C. 57 905
Crapo v. Kelly, 13 WalJ, 610. .45, 55
Crase v. North Star Mines Co.,
Cal. Indus. Ace. Bd., March 14,
1913 589
Craske v. Wigan (1909), 2 K. B.
635 401
Craske v. Wigan (1909), 100 L.
T. 8; 2 B. W. C. C. 35. .514, 516
Creagh v. Nitram Co., Essex
Common Pleas, Sept. 27,
1912, 35 N. J. Law J. 328. . 654
Crellin, M. A., Re: Op. Sol. Dep.
C. & L., p. 195 344,352
Cremins v. Guest, Keen & Net-
tlefold (1908), 1 K. B. 469; 1
B. W. C. C. 160 ; 409
Cripps v. Aetna Life Ins. Co.,
Mass. Indus. Ace. Bd... 584, 953
Cronin v. Silver (1911), 4 B. W.
C. C. 221 461
Crooks, Z. M., Re: Op. Sol. Dep.
C. & L., pp. 362, 363, 364.. 1019
Crossfield & Sons v. Tanian,
82 L. T. 813; 2 W. C. C. 141 . . 903
Crouch v. Massachusetts Em-
ployes Insur. Association,
Mass. Indus. Ace. Bd 446
Cummings, In re, 32 Fed. Rep.
75 135
Cunningham, J. C, Re: Op. Sol.
Dep. C. & L., p. 63 1001
Cunningham v. Locke Construc-
tion Co. and Southwestern
Surety Ins. Co., Cal. Indus.
Ace. Bd 962
Cunningham v. M'Naughton &
Sinclair (1910), 47 Scotch
L. R. 781; 3 B. W. C. C. 577. . 906
Cunningham v. Northwestern
PAGE
Improvement Co., 44 Mont.
108; 119 Pac. 554 9
Cunningham v. Sheltering Arms,
61 Misc. 501; 115 Supp. 576;
aff'd 135 App. Div. 178; 119
Supp. 1033 120
Currie, Daniel, Re: Op. Sol. Dep.
C. & L., p. 329 1029
Curtis v. Talbot and Kidder-
minster Infirmary Committee
(1911),5B.W.C.C41 464
D
Dabbs, Jr., J. S., Re: Op. Sol.
Dep. C. & L., p. 484 1040
Dale, James, Re: Op. Sol. Dep.
C. & L., p. 350 1029
Dallas Mfg. Co. v. Townes, 41
So. Rep. 988; 148 Ala. 146 111
Darbon v. Gigg (1904), 7 W. C.
C.32 487
Darlington v. Roscoe & Sons
(1906), 8 W. C. C. 4 585
Darlington v. Roscoe & Sons
(1910), 96 L. T. 179; 9 W. C.
C 1 ..585
Darnley v. Canadian Pacific Ry.
Co., 14 B. C. R. 15; 2 B. W. C.
C. 505 488-489
David, Joe, Re: Op. Sol. Dep. C.
&L., p. 394 1010
David v. Windsor Steam Coal
Co. (1911), 4 B. W. C. C. 177 913
Davies v. Gillespie (1911), 5 B.
W. C. C. 64 377
Davis, A. D., Re: Op. Sol. Dep.
C. & L., p. 422 1004
Davis, C. B., Re: Op. Sol. Dep.
C. &L.,p. 315 1005
Davis, J. W., Re: Op. Sol. Dep.
C.&L.,p.606 1031
Davis v. Bhymney Iron Co., 2
W. C. C. 22 408
Day v. Markham (1904), 6 W. C.
C115 58o
TABLE OF CASES
xlvii
Volume 2 begins at page 1053
PAGE
Dean v. London & North West-
ern Railway Co. (1910), 3 B.
W. C. C. 351 371
Deeny v. Wright & Cobb Light-
erage Co., 36 N. J. Law J.
121 35,39,42,45,51
Denton Sleeping Garment Co.
v. Redfield, Mich. Indus.
Ace. Bd., Nov. 3, 1913; The
Indicator, Nov. 5, 1913,
p. 442 : 491
Derbeck, Simon, v. Pfister & Vo-
gel Leather Co., Wis. Indus.
Com., May 18, 1912 668
Derrickson's Adm'r v. Swann-
Day Lumber Co., 115 S. W.
Rep. 191; 000 Ky. 000 458
Detroit Steel Products Co. v.
Jendrus, Mich. Indus. Ace.
Bd., June, 1913 396
Devine v. Contractors Mutual
Liability Ins. Co., Mass. In-
dus. Ace. Bd 677
Devitt and Crosby Magee v. The
Owners of the S. S. "Bain-
bridge" (1909), 2 K. B. 802;
2B. W. C. C. 383 926
Devlin v. Pelaw Main Collieries
(1912), 5 B. W. C. C. 349. . . . 579
Dewhurst v. Mather (1908), 1
B. W. C. C. 328 139
Dickerson v. Bornstein, 137 S.
W. Rep. 773; 144 Ky. 19. . . . 438
Dickinson v. Barmak (1908),
124 L. T. Newspaper, 403 452
Dieselman, J. C, Re: Op. Sol.
Dep. C. & L., p. 314 1005
Dikovich v. American Steel and
Wire Co., 36 N. J. Law J.
304 555,955
Dinnington Main Coal Co. v.
Bruins (1912), 5 B. W. C. C.
367 652
Disourdi v. Sullivan Group Min-
ing Company and Maryland
Casualty Co. (No. 2) (1909),
PAGE
14 C. B. R. 256; 2 B. W. C. C.
508 959
Disourdi v. Sullivan Group Min-
ing Co. and Another (1910),
15 B. C. R. 305; 4 B. W. C. C.
462 958
Disourdi v. Sullivan Group Min-
ing Co. and Maryland Cas-
ualty Co. (No. 3), 14 B. C. R.
273; 2 B. W. C. C. 514 959
Dixon v. Chiquola Mfg. Co., 68
S. E. Rep. 643; 86 S. C. 435 467
Dobby v. Wilson, Pease & Co.
(1909), 2 B. W. C. C. 370. . . . 914
Dobson v. British Oil and Cake
Mills (1912), 5 B. W. C. C.
405 743
Doggett v. Waterloo Taxi-Cab
(1910), 102 L. T. 874; 3 B. W.
C. C. 371 126
Dojak v. St. Paul, Minneapolis,
& Sault. Ste. Marie Ry., Wis.
Indus. Com., Jan. 24, 1913 640
Donaldson, Albert, Re: Op. Sol.
Dep. C. & L., p. 41 997, 999
Donaldson Brothers v. Cowan
(1909), 46 Scotch L. R. 920;
2 B. W. C. C. 390 904
Donnachie v. United Collieries
(1910), 47 Scotch L. R. 412 486, 493
Donnelly ,v. San Francisco
Bridge Co., 117 Cal. 417; 49
Pac. Rep. 559^... 130
Donnelly v. William Baird & Co.
(1908), 45 Scotch L. R. 394;
IB. W. C. C. 95 908
Dothie v. MacAndrew & Co.
(1908), 98 L. T. 495; 1 B. W.
. C. C. 308 737
Dotzauer v. Strand Palace Hotel
(1910), 3 B. W. C. C. 387. . . . 357
Dougherty, Alvina, v. State of
Wisconsin, Wis. Indus. Com.,
June 14, 19*2 639
Douglas v. United Mineral Min-
ing Co. (1910), 2 W. C. C. 15, 488
xlviii
TABLE OF CASES
Volume 2 begins at page 1053
PAGE
Doyle v. Cork Steam Packet Co.
(1912), 5 B. W. C. C. 350. . . . 806
Dozier v. Fidelity & Cas. Co.,
46 Fed: Rep. 446 376,379
Driscoll v. Employers' Liability
Assurance Corporation, Mass.
Indus. Ace. Bd 361
Drummond, E. A., Re: Op. Sol.
Dep. C. & L., p. 261 1033
Duncan v. Columbian Fire
Proofing Co., 182 Mass. 93;
64 N. E. Rep. 726 445
Dunham v. Clare (1902), 66 L.
T. 751; 4 W. C. C. 102 398
Dunham Towing & Wrecking
Co. v. Emily Dandelin, Admx.,
143 111. 409 1008
Dunnigan v. Cavan & Lind
(1911), 48 Scotch L. R. 459;
4B. W. C. C. 386 803
Du Puy, J. L., Re: Op. Sol. Dep.
C. & L., p. 361 1021
Durst v. Bromley Bros. Carpet
Co., 57 Atl. Rep. 986; 208 Pa.
St. 573 437
Duvall v. Armour Packing Co.,
95 S. W. Rep. 978; 119 Mo.
App. 150 '... 466
Dvorak, William, v. Stamping &
Tool Co., Wis. Indus. Com.,
March 5, 1913 675
Dwyer v. General Petroleum
Co., Cal. Indus. Ace. Bd.,
June 24, 1913 681
E
Earnshaw v. Lancashire & York-
shire Ry. Co. (1903), 5 W.
C. C. 28 448
Eaton, Joseph, Re: Op. Sol. Dep.
C. & L., p. 145 1002
Eaton v. Evans (1911), 5 B. W.
C. C. 82 ... 767
Eaves v. Blaenclydaph Colliery
(1909), 2 K. B. 73; 2 B. W.
C. C.329 382,383
PAGE
Edghill, Wesley, Re: Op. Sol.
Dep. C. & L., p. 336 1027
Edison Alleyne (not reported) . . 1014
Edminster, George, v. Waupaca
County, Wis. Indus. Com.,
May 4, 1912 669
Edmunds v. S. S. "Peterston"
(1911), 5 B. W. C. C. 157 499
Edner, Charles, Re: Claim No.
1320, Ohio Indus. Ace. Bd.,
1913 385
Edwards v. International Coal
Co. (1899), 5 W. C. C. 21 462
Edwards v. The Alyn Steel Tin-
plate Co. (1910), 3 B. W. C. C.
141 646
Egerton v. Moore (1912), 5 B. W.
C. C. 284 769
Ehmett v. Mitchell-Tranter Co.,
80 S. W. Rep. 1148; 26 Ky.
Law Rep. 303 460
Eke v. Sir William Hart Dyke
(1910), 3 B. W. C. C. 482 371
EUi v. Vermont Marble Co., Cal.
Indus. Ace. Bd., Aug. 8,
1913 680
Elliott v. Curry & Dodd (1912),
46 Ir. L. T. 72; 5 B. W. C. C.
584 660
Elliott v. Rex (1904), 6 W. C. C.
27 451
Ellis v. Ellis & Co. (1905), 92
L.T. 718; 7W.C.C. 97 121
Ellis v. Knott (1900), 2 W. C. C.
H6 916
Ellis v. The Lockgelly Iron and
Coal Co. (1909), 46 Scotch
L. R. 960; 2 B. W. C. C. 136. . 943
Ellmore, Washington, Re: Op.
So. Dep. C. & L., p. 207 360
Ellsworth v. Metheney, 104 Fed.
Rep. 119; 51 L. R. A. 389. .478, 480
Emmerson v. Donkin and Co.
(1910), 4 B. W. C. C. 74 905
Ensey, C. R., Re: Op. Sol. Dep.
C.&L.,p.592 39i
TABLE OF CASES
xlix
Volume 2 begins at page 1053
PAGE
Esselman, Leon, Re: Op. Sol.
Dep. C. & L., p. 472 1037
Estep v. City of Los Angeles,
Cairindus. Aec. Bd., July 24,
1913 592
Etienne, William, Re: Op. Sol.
Dep. C. & L, p. 126 993
Evans, Margaret, Re: Claim No.
4204, Ohio Indus. Ace. Bd.,
May 29, 1913 506
Evans v. Cory Bros. & Co.
(1912), 5 B. W. C. C. 272. . . . 668
Evans v. Dodd (1912), 5 B. W.
C. C. 305 357
Evans v. Penwyllt Dinas Silica
Brick Co. (1901), 4 W. C. C.
101 129
Evans v. Vickers, Sons and
Maxim (1910), 102 L. T. 199,
3 B. W. C. C. 126, afi'd by
House of Lords 915
Evansville R. R. Co. v. Maddux,
134 Ind. 571; 33 N. E. Rep.
345 445
Evenson, Sigurd, Re: Op. Sol.
Dep. C. & L., 149 1002
Ewald, William, Re: Op. Sol.
Dep. C. & L., p. 331 1027
Ewald v. Chicago & N. W. Ry.
Co., 70 Wis. 420; 36 N. W.
Rep. 12 426
Eyre v. Houghton Main Colliery
Co. (1910), 102 L. T. R. 385;
3B. W. C. C. 250 910
Fahey, William P., Re: Op. Sol.
Dep. C. & L., p. 218 421
Faircloth v. Waring & Gillow
(1906), 8 W. C. C. 99 731
Farmer v. Stafford, Allen & Sons
(1911), 4 B. W. C. C. 223. . . . 369
Farrington v. Lachman & Jacobi,
Cal. Indus. Ace. Bd., July 12,
1913 • 590
PAGE
Farwell v. Boston, etc., R. Co.,
4 Met. 49 4
Featherstone v. Hemsworth Col-
liery (1912), 5 B. W. C. C. 640 920
Feldman V. Westinghouse Elec-
tric and Min. Co., Essex Com-
mon Pleas, Jan. 1913; 36 N. J.
Law J. 48 359
Feltis, A. H., Re: Op. Sol. Dep.
C.&L.,p.95 996
Feneff v. Boston & M. R. Co., 82
N. E. Rep. 705; 196 Mass.
575 410
Fennah v. Midland & Great
Western Railway of Ireland
(1911), 45 Irish L. T. 192; 4
B.W.C.C.440 517
Fenton, H. L., Re: Op. Sol. Dep.
C.&L.,p.99 995
Fenton v. Thorley & Co. (1903),
A. C. 443; 5 W. C. C. 1..349,
368, 377
Fenton v. Thorley & Co., 19 T.
L. R. 684 349
Fernandez, Manuel, Re: Op. Sol.
Dep, C. & L, p. 149 1002
Fernandez, Mariano, Re: Op.
Sol. Dep. C. & L., p. 481 1040
Ferry v. Wright (1908), 1 K. B.
441 735
Field v. MacDonald & Kahn,
Cal. Indus. Ace. Bd., Dee. 10,
1913 682
Fife Coal Co. v. Wallace (1909),
46 Scotch L. R. 727; 2 B. W.
C. C. 264 582
Finkelstein v. Balkin, 103 Supp.
99 128
Fitzgerald v. Clarke & Son
(1908), 2 K. B. 796; 1 B. W.
C. C. 197 ..402,512
Fitzpatrick, C. C, Re: Op. Sol.
Dep. C. & L., p. 241 461
Fitzpatrick v. Hindley Field Col-
liery Co. (1901), 3 W. C. C. 37;
4 W. C. C.7 426
TABLE OE CASES
Volume 2 begins at page 1053
PAGE
Fitzwater v. Warren, 206 N. Y.
355; 99 N. E. Rep. 1042 . 3, 18,
19,20
Flagstaff Silver Min. Co. v. Cul-
lins, 104 U. S. 176 : . . . .1000
Flaherty, E. J., Re: Op. Sol. Dep.
C.&L.,p.403 1013
Flaherty, Patrick, Re: Op. Sol.
Dep. C. & L., p. 225* 406
Flemmings, Cornelius, Re: Op.
. Sol. Dep. C. & L., p. 187 508
Fletcher, W. R., Re: Op. Sol.
Dep. C. & L., p. 610 1033
Fletcher v. Owners of Steamship
"Duchess" (House of Lords),
1911, 4 B. W. C. C. 317 416
Flora, C. B., Re: Op. Sol. Dep.
C. &L., p. 188 397
Floyd v. Kentucky Lumber Co.
66 S. W. Rep. 501; 23 Ky.
Law Rep. 1914 466
Fogg, Seymore, Re: Op. Sol.
Dep. C. & L., p. 415 1003
Follis v. Schaake Machine Works
(1908), 13 B. C. 471; 1 B. W.
C. C. 442 574
Ford v. Wren & Dunham (1903),
5 W. C. C. 48 304
Forde, Joseph, Re: Op. Sol. Dep.
C.&L.,p.244 411
Forsell v. Massachusetts Em-
ployes Insurance Association,
Mass. Indus. Ace. Bd. (Appeal
pending to Supreme Judicial
Court) 580
Forster v. Pierson (1906), 8 W.
C. C. 19 487
Foster, James, Re: Op. Sol. Dep.
C. & L., p. 533 ....1048
Fowler, A. W., Re: Op. Sol. Dep.
C.&L.,p.l42 1002
Fowler, C. O., Re: Op. Sol. Dep.
C. & L., p. 332 1028
Fowler, George, Sons & Co., v.
Brooks, 70 Pac. Rep. 600; 65
Kans. 861 441
PAGE
Fraser, William W., Re: Op. Sol.
Dep. C. & L., p. 377 1015
Frates, W. S., Re: Op. Sol. Dep.
C.&L.,p.416 1003
Freeland v. Summerlee Iron Co.
(1912), 49 Sc. L. R. 841; 5 B.
W. C. C. 598 805
Freeman v. Mercantile Mut.
Ace. Assn., 156 Mass. 351 386
Freitas v. Alameda Sugar Co.,
Cal. Indus. Ace. Bd., Nov. 5,
1913 680
Frith v. S. S. "Louisianian"
(1912), 5 B. W. C. C. 410. . . . 418
Fry v. Cheltenham Corporation
(1911), 5 B. W. C. C. 162. . . . 767
Fulford v. Northfleet Coal and
Ballast Co. (1907), 1 B. W. C.
C. 222 368
Furniss v. Gartside & Co. (1910),
3B. W. C. C.411 462,511
Furness, Withy & Co. v. Ben-
nett (1910), 3 B. W. C. C. 195. 803
Furnivall v. Johnson's Iron and
Steel Co. (1911), 5 B. W. C. C.
43 454
G
Gaffney v. Travelers Ins. Co.,
Mass. Indus. Ace. Bd 452
Gage v. S. Mills Ely Co., 132
Supp. 953 437
Galveston, H. & S. A. Ry. Co. v.
Harris, 107 S. W. Rep. 108;
000 Tex. Civ. App. 000 133
Gamboa, Ernesto, Re: Op. Sol.
Dep. C. & L., p. 397 1023
Game v. Norton Hill Colliery Co.
(1909), 100 L. T. 979; 2 B. W.
C.C. 42 424,893
Garcia, Leon, Re: Op. Sol. Dep.
C. & L., p. 477 1038
Garcia, Santos, Re: Op. Sol. Dep.
C. & L., p. 338 1026
Garnant Anthracite Collieries
TABLE OP CASES
li
Volume 2 begins at page 1053
PAGE
v. Rees (1912), 5 B. W. C. C.
694 919
Garsia, Adolphus, Re: Op. Sol.
Dep. C. & L. p. 130 992
Gaynor v. Standard Accident
Ins. Co., Massachusetts Indus-
trial Accident Board (appeal
pending to Supreme Judicial
Court) 141-142
Geibel v. Elwell, 19 App. Div.
285; 46 Supp. 76 501
George, Robert, Re: Op. Sol.
Dep. C. & L., p. 382 1014
George v. Glasgow Coal Co.
(1908), 45 Scotch L. R. 687;
1 B. W. C. C. 239 486
George v. Glasgow Coal Co.
(1908), 99 L. T. 782; 2 B. W.
C. C. 125 483
Gerow, Wm., Re: Op. Sol. Dep.
C. & L., p. 217 408
Giandini v. General Construc-
tion Co., Cal. Indus. Ace. Bd.,
May 17, 1913 360
Gibbons v. Wilkesbarre, etc.,
St. Ry. Co., 155 Pa. St. 279. .1008
Gibson v. Dunkerley Brothers
(1910), 3 B. W. C. C. 345. . . . 508
Gibson v. New Orleans Terminal
Co., 58 So. Rep. 1015; 131 La.
10 465
Gilbert v. Burlington, C. R. &
N. Ry. Co., 128 Fed. Rep.
529 1024
Gilbert v. Employers' Liability
Assurance Corporation, Mass.
Indus. Ace. Bd 408
Gilbert v. Owners of the "Ni-
zam" (1910), 3 B. W. C. C.
455 405,416
Gilbey v. The Great Western
Railway Co. (1910), 102 L.
T.202;3B. W. C.C. 135.... 801
Gildea v. Natomas Consolidated
of California, Cal. Indus. Ace.
Bd., Nov. 21, 1913 666
PAGE
Gilfillen, Joseph, Re: Op. Sol.
Dep. C. & L., p. 523 1046
Gilkey, Joseph, Re: Op. Sol.
Dep. C. & L., p. 223 406
Gill, Henry, Re: Op. Sol. Dep,
C. & L. p. 134 992
Gillen v. Ocean Accident &
Guarantee Corporation, 000
Mass. 000; 102 N. E. Rep.
346 733
Gilmour v. Dorman, Long & Co.
(1911), 105 L. T. 54; 4 B. W.
C. C. 279 405,433
Gilroy v. Mackie and Others
(Leith Distress Committee)
(1909), 46 Scotch L. R. 325;
2 B. W. C. C. 269 119
Giovanni, Pinna, Re: Op. Sol.
Dep. C. &L., p. 222 420
Glass, H. S., Re: Op. Sol. Dep.
C. & L., p. 306 1007
Goble v. Continental Motor
Car Co., Dec. of Mich. Ar-
bitration Committee, Dec. 18,
1912 492
Golden, J. P., Re: Op. Sol. Dep.
C. & L., p. 50 998
Golden, J. P., Re: Op. Sol. Dep.
C. & L., p. 122 992
Goncalves v. Standard Oil Co.,
Cal. Indus. Ace. Bd., May 29,
1913 671
Gonzalez, M. T., Re: Op. Sol.
Dep. C. & L., pp. 474, 475, 476 . 1038
Gooch v. Citizens Electric St.
Ry. Co., 88 N. E. Rep. 591;
202 Mass. 254 480
Goodall and Clarke v. Kramer
(1910)', 3 B. W. C. C. 315. . . . 907
Goodley, William, Re: Op. Sol.
Dep. C. & L., p. 494. . . . 1042-1043
Gorman v. Fidelity & Casualty
Co., Mass. Indus. Ace. Bd. 509
Gough v. Crawshay Brothers
(1907), 98 L. T. 327; 1 B.
W. C. C. 351 732
lii
TABLE OF CASES
Volume 2 begins at page 1053
PAGE
Gough v. Crawshay Brothers,
1 B. W. C. C. 374 744
Gould v. Sturtevant and Amer-
ican Mutual Liability Ins. Co.,
215 Mass. 000; 102 N. E. Rep.
693 35,51,56,839
Gourlay v. Murray (1908), 45
Scotch L. R. 577; 1 B. W. C.
C. 335 % 581
Graham, E. R., Re: Op. Sol.
Dep. C. & L., p. 504 1044
Granick v. British Columbia Su-
gar Refinery Co. (1910), 15 B.
C. R. 193; 4 B. W. C. C. 452;
rev'g (1909), 14 B. C. R. 251;
2 B. W. C. C. 511 484,895
Grant, J. M., Re: Op. Sol. Dep.
C. &L., p. 76 1000
Grant, Leon, Re: Op. Sol. Dep.
C. & L., p. 528 1046
Grant v. Glasgow and South-
western Ry. Co. (1907), 45
Scotch L. R. 128; 1 B. W. C.
C. 17 453, 454
Grant & Aldcroft v. Conroy
(1904), 6 W. C. C. 153 951
Gray, J. B., Re: Op. Sol. Dep.
C. & L., p. 90 996
Gray v. Northern Pac. Ry. Co.,
121 N. W. Rep. 142; 139 Wise.
419 473
Great Northern Ry. Co. v. Daw-
son (1905), 92 L. T. 145; 7 W.
C. C. 114 737
Greaves v. Mulliners (1901), 3
W. C. C. 189 742
Green, Alexander, Re: Op. Sol.
Dep. C. & L., p. 223 513
Green, L. B., Re: Op. Sol. Dep.
C. & L., p. 199 353
Green, M. T. J., Re: Op. Sol.
Dep. C. & L., p. 83 998
Greene v. Shaw (1911), 46 Ir. L.
T. 18; 5 B. W. C. C. 573. ... 399
Greenhill v. The Daily Record,
Glasgow (1009), 46 Scotch L.
PAGE
R. 483; 2 B. W. C. C.
244 134
Greer v. Lindsay Thompson
(1912), 46 Ir. L. T. 89; 5 B.
W. C. C. 586 471
Griffiths v. Atkinson (1912), 5
B. W. C. C. 345 768
Griga v. Owners of Ship "Har-
elda" (1910), 26 T. L. R. 272;
3B. W. C. C. 116 804
Grissom v. Atlanta & B. Air
Line Ry., 44 So. Rep. 661; 152
Ala. 110 504
Grogan v. Frankfort General
Ins. Co., Massachusetts In-
dustrial Accident Board. . . . 141
Gross v. Fischer Lumber & Mfg.
Co., 43 So. Rep. 1006; 119
La. 201 464
Gross v. Marshall Butters Lum-
ber Co., Mich. Indus. Ace.
Bd., Oct. 15, 1913; The Indi-
cator, Oct. 20, 1913, p. 417.
367, 417
Groves v. Burroughes & Watts
(1911), 4 B. W. C. C. 185. . . . 393
Guest, Keen & Nettlefold v.
Winsper (1911), 4 B. W. C. C.
289 913
Guiseppe, Canu, Re: Op. Sol.
Dep. C. & L., p. 380 1021
Gunderson v. Eastern Brewing
Co., 71 Misc. 519; 130 Supp.
785 502
Gurdon & Ft. S. Ry. Co. v. Cal-
houn, 109 S. W. Rep. 1017; 86
Ark. 76 133
Gurney v. Grand Trunk Ry. Co.,
13 Supp. 645 46
H
Hadlock, C. H., Re: Op. Sol.
Dep. C. & L., p. 366 1017
Hadlock, C. H., Re: Op. Sol.
Dep. C. & L., p. 408 1012
TABLE OP CASES
liii
Volume 2 begins at page 1053
PAGE
Hains & Strange v. Corbet
(1912), 5 B. W. C. C. 372 672
Haldmaier v. Cobbs, 96 111.
App. 315; aff'd 62 N. E. Rep.
853; 195 111. 172 444
Hall v. Furness, Withy & Co.
(1909), 3 B. W. C. C. 72 796
Hall v. Tamworth Colliery Co.
(1910), 4 B. W. C. C. 107. . . . 744
Halvorsen v. Salvesen (1911), 49
Sc. L. R. 27; 5 B. W. C. C.
519 418
Hamilton, J. W., Re: Op. Sol.
Dep. C. & L., p. 297 1034
Hanlon v. Milwaukee County,
Dec. Wis. Indus. Com., Dec. 9,
1912 204
Hannon v. San Francisco Board
of Education, Cal. Indus. Ace.
Bd 682
Hansen, O. R., Re: Op. Sol. Dep.
C. &L., p. 141 1003
' Hanson, John, Re: Op. Sol. Dep.
C.&L.,p.36 1003
Hanson v. State of Wisconsin,
Wisconsin Industrial Accident
Board, February 4, 1913 120
Hapelman v. Poole (1908), 25
T. L. R. 155; 2 B. W. C. C.
48 503, 513
Harding, J. F., Re: Op. Sol. Dep.
C.&L.,p.446 1035
Harding v. Brynddu Colliery
Co. (1911), 2 K. B. 747; 4
B. W. C. C. 269 499
Hargreave v. Haughhead Coal
Co. (1912), 5 B. W. C. C. 445 391
Harland & Wolff v. Badcliffe
(1909), 43 Irish L. TV 166; 2
B.W. C.C. 374 804
Harris, Allen, v. City of Mil-
waukee, Wis. Indus. Com.,
Sept. 14, 1912 657
Harris, Harry, v. Milwaukee
Dustless Brush Co., Wis. In-
dus. Com., March 12, 1913. . . 670
PAGE
Harrison v. Whitaker Bros., 2
W. C.C. 12 503
Hart, Harry, v. Majestic Serv-
self, Michigan Industrial
Board, Feb. 1913 553
Hart v. Mammoth Copper Min-
ing Co., Cal. Indus. Ace. Bd.,
May 15, 1913 746
Harvey v. Texas & P. Ry. Co.,
166 Fed. Rep. 385 428
Hatfield v. Adams, 96 S. W.
Rep. 583; 29 Ky. Law Rep.
880 501
Hathaway v. Argus Printing Co.
(1900), 3 W. C. C. 177 738
Hawes, Mrs. R., Re: Op. Sol.
Dep. C. & L., p. 220 446
Hawkes v. Richard Coles and
Sons (1910), 3 B. W. C. C. 163 943
Hawkins v. Powell's Tillery
Steam Coal Co. (1911), 104
L. T. 365; 4 B. W. C. C. 178. . . 363
Hayes v. Colchester Mills, 37
Atl. Rep. 269; 69 Vt. 1 470
Haylett v. Vigor & Co. (1908),
1 B.W. C.C. 282 374
Haynes, Sam, Re: Op. Sol. Dep.
C. &L., p. 611 1048
Hays, J. D., Re: Op. Sol. Dep.
C. &L., p. 68 1000
Hays Wharf, Proprietors of, v.
Brown (1909), 3 B. W. C. C.
84 927
Headley, James, Re: Op. Sol.
Dep. C. & L., p. 395 1023
Hedley v. Pinkney & Sons S. S.
Co., 1 Q. B. 58; 61 L. J. Q. B.
179 5
Heilig v. Southern Ry. Co., 67
S. E. Rep. 1009; 152 N. C. 469 429
Heldmaier v. Cobbs, 96 111.
App. 315; aff'd 62 N. E. Rep.
853; 195 111. 172 445
Helme Co., George W., v. Mid-
dlesex Common Pleas, 00 N. J.
Law, 000; 87 Atl. Rep. 72. . . . 655
liv
TABLE OF CASES
Volume 2 begins at page 1053
PAGE
Helmke v. Thilmany, 107 Wis.
216; 83 N. W. Rep. 360 420
Hendricksen v. Owners of Steam-
ship "Swanhilda" (1911), 4
B. W. C. C. 233 651
Hendrickson v. Wisconsin Cen.
Ry. Co., 122 N. W. Rep. 758;
00 Wise. 000 458
Hendry v. United tbollieries
(1908), 45 Scotch L. R. 944;
IB. W. C. C. 289 586
Hendry v. The United Collieries
(1910), 47 Scotch L. R. 635;
3B. W. C. C. 567 435
Henneberry v. Doyle (1911),
46 Ir. L. T. 70; 5 B. W. C. C.
580 .' 472
Henry, Isaiah, Re: Op. Sol. Dep.
C. &L., p. 510 1044
Hensey v. White (1900), 81
L. T. 767; 2 W. C. C. 1 . . .368, 369
Herrera, Jose, Re: Op. Sol. Dep.
C.&L.,p.370 1020
Herron, Leander, Re: Op. Sol.
Dep. C. & L., p. 96 995
Hewitt and Others v. Owners of
the Ship "Dutchess" (1910),
102 L. T. 204; 3 B. W. C. C.
239 416
Hewitt, Elizabeth, Re: Op. Sol.
Dep. C. & L., p. 210 343, 352
Hewlett v. Hepburn,2 W. C. C.
123 740
Hichens v. Magnus Metal Co.,
Hudson Com. Pleas, June 25,
1912; 35 N. J. Law J. 327. ... 375
Hicks, Richard, Re: Op. Sol.
Dep. C. & L., p. 179 359
Hicks v. Maxton (1907), 1 B. W.
C. C. 150 35,38,43
Higgins v. Campbell & Harri-
son and Turvey v. Brintons,
Limited (1904), 1 K. B. 328;
6 W. C. C. 1; affirmed by the
House of Lords (1905), A. C.
230; 7 W. C.C.I 352
PAGE
Higgins v. Poulson (1902), 5
B.W.C. C.340 797
Hight, Francis, Re: Op. Sol. Dep.
C. &L., p. 389 1021
Hill, E. L., Re: Op. Sol. Dep. C.
&L., p. 204 345
Hill, E. L., Re: Op. Sol. Dep. C.
&L., p. 287 1032
Hill v. Begg (1908), 1 B. W. C. C.
320 138
Hill v. Granby Consolidated
Mines (1906), 12 B. C. 118; 1
B.W.C.C.436 483
Hill v. Ocean Coal Co. (1909),
3B. W. C. C. 29 649
Hinds, William, Re: Op. Sol.
Dep. C. & L., p. 342 1026
Hoare v. Arding and Hobbs
(1911), 5 B. W. C. C. 36 768
Hoare v. Barge "Cecil' Rhodes"
(1911), 5 B. W. C. C. 49 124
Hodgson v. Owners of West
Stanley Colliery (1910), 102
L. T. 194; A. C. (H. L.) 229;
3 B. W. C. C. 260. .572, 575,
576, 583
Hoffman, Emma, Re: Claim
No. 2293, Ohio St. Lia. Bd.
Awd., March, 1913 624
Hogan, Michael, Re: Op. Sol.
Dep. C. & L., p. 142 1002
Hollingsworth v. Pineville Coal
Co., 74 S. W. Rep. 205; 24 Ky.
Law Rep. 2437 460
Holmes v. G. N. Rail. Co. (1900),
2Q.B.409;2.W.C.C. 19.... 408
Holmes v. Great Northern Ry.
Co., 2 W. C. C. 19 411
Holness v. Mackay & Davis
(1899), 80 L. T. 831; 1 W. C.
C. 13 406, 427
Holt v. Yates and Thorn (1909),
3B.W. C. C. 75 914
Honor v. Painter (1911), 4 B. W.
C. C. 188 362
Hood & Son, H. P., v. Maryland
TABLE OF CASES
lv
Volume 2 begins at page 1053
PAGE
Cas. Co., 206 Mass. 223; 92
N. E. 329 358
Hooper v. Standard Life & Acci-
dent Ins. Co., 00 Mo. 000; 148
S. W. Rep. 116 386
Hopkins v. Michigan Sugar Co.,
Mich. Indus. Ace. Bd., June,
1913 453, 847
Hopwood v. Oliver & Partington
(1910), 3 B. W. C. C. 357 487
Horn, Harriet H., Re: Claim
No. 1013, Ohio Indus. Ace.
Bd., Dec. 23, 1912. . .437, 735, 761
Horn v. Arnold Schwinn & Co.,
150 111. App. 559 459
Horsman v. Glasgow Navigation
Co. (1909), 3 B. W. C. C. 27. . 944
Hosegood, B. and Sons, v. Wil-
son (1910), .4 B. W. C. C.
30 918
Hoskins v. J. Lancaster (1910),
3B. W. C. C. 476 426
Hott, C. E., Re: Op. Sol. Dep.
C.&L.,p.71 998
Hott, C. E., Re: Op. Sol. Dep.
C. &L., p. 237 455
Houghton v. Pilkington, 107
L. T. Rep. 235; The Policy-
holder, Nov. 16, 1912, p. 768. . 505
Houghton v. Root Construction
Co., 35 N. J. Law J. 332. .502, 620
Houghton v. Sutton Heath and
Lea Green Collieries Co.
(1900), 3 W. C. C. 173 737
Houghton v. W. G. Root Const.
Co., 35 N. J. Law J. 332. .3p2, 321
Houston, E. & W. T. Ry. Co. v.
McHale, 105 S. W. Rep. 1149;
47 Tex. Civ. App. 360 430
Houston, etc., Ry. Co. v. Reason,
61 Tex. 613 1013
Houston & T. C. R. Co. v. Tur-
ner, 91 S. W. Rep. 562; 99 Tex.
547 451
Howard, In re: 63 Fed. Rep. 263 135
Howell v. Bradford & Co. (1911),
PAGE
104 L. T. 433; 4 B. W. C. C.
203 567, 584
Howe v. Femhill Collieries
(1912), 5 B. W. C. C. 629. . . . 354
Howell, Stanley, Re: Op. Sol.
Dep. C. & L., p. 442 1035
Howells v. Vivian and Sons
(1901), 85 L. T. 529; 4 W. C.
C. 106 573, 574
Howlan v. New York & New
Jersey Telephone Co., 131
App. Div. 443; 115 Supp. 316
47, 60
Hubbe v. Lynch (Essex Common
Pleas, Jan. 23, 1913), 36 N. J.
Law J. 000 140
Huckle v. The London County
Council (1910), 3 B. W. C. C.
536 304
Huckle v. The London County
Council (1910), 4 B. W. C. C.
113 942
Huff, F. J., Re: Op. Sol. Dep.
C.&L.,p.458 1035
Huff, Frank J., Re: (Op. of the
Comptroller of the Treasury),
Op. Sol. Dep. C. & L.,
p. 459 1033
Hughes v. Postlethwaite (1910),
4B. W. C. C. 105 123
Hugo v. H. W. Larkins & Co.
(1910), 3 B. W. C. C. 228. . . . 355
Hugo, Schmeltzer & Co. v. Paiz,
128 S. W. Rep. 912; 00 Tex.
Civ. App. 000 471
Humber Towing Co. v. Barclay
(1911), 5 B. W. C. C. 142 908
Humphreys v. City of London
Electric Lighting Co. (1911),
4B. W. C. C.275 672
Hunt, Grandville, Re: Op. Sol.
Dep. C. & L., p. 326 1025
Hunt, Mary, v. Milwaukee
County, Wis. Indus. Co.,
Oct. 21, 1912 636
Hurle v. Am. Mut. Lia. Ins. Co.
lvi
TABLE OF CASES
Volume 2 begins at page 1053
PAGE
(Mch. 1914), 00 Mass. 000;
00 N. E. Rep. 000 370
Hutchinson v. Ward, 192 N. Y.
375, 381 60
Hutton, W. P., Re: Opinions of
Attorney General, p. 322 1048
Hutton, W. P., Re: Op. Sol.
Dep. C. & L., p. 321* 1018
Hyndman v. Craig & Co. (1910),
44 Irish L. T. 11; 4 B. W. C. C.
438 419
Illinois Cent. R. Co. v. Timmons,
100 S. W. Rep. 337; 30 Ky.
Law Rep. 1155 116
Indiana Pipe-Line & Refining
Co. v. Neusbaum, 52 N. E.
Rep. 471; 21 Ind. App. 361 .. . 454
Inness, Dudley, Re: Op. Sol.
Dep. C. & L., p. 123 992
Inniss, Dudley, Re: Op. Sol.
Dep. C. & L., p. 63 998
International Great Northern
Ry. Co. v. Ryan, 82 Texas,
565; 18 S. W. Rep. 219 431
Interstate Casualty Co. v. Bird,
18 Ohio Cir. Ct. 488 361
Irons v. Davis &Timmins (1899),
80 L. T. 673; 1 W. C. C. 26 : . . 645
Irving, J. B., Re: Op. Sol. Dep.
C. & L., p. 211 345
Ismay, Imrie & Co. v. William-
son, ,99 L. T. 595; 1 B. W. C. C.
232 376
Ives v. South Buffalo Ry. Co.,
201 N. Y. 271; 94 N. E. Rep.
431 . 9, 10, 15, 16, 19, 21, 29, 69, 208
Jackson, Alexander, Re: Op. Sol.
Dep. C. & L., p. 424 1004
Jackson, John, Re: Op. Sol.
Dep. C. & L., P. 41 997, 999
PAGE
Jackson v. General Steam Fish-
ing Co. (1909), A. C. 523; 101
L. T. 401; 2 B. W. C. C. 56
414, 427
Jacobson v. Merril & Ring Mill
Co., 119 N. W. Rep. 510; 107
Minn. 74 430
Jacoby Co., A. H., v. Williams,
65 S. E. Rep. 491; 110 Va. 55 463
James v. Ocean Coal Co. (1904),
6W.C.C. 128 743
Jamieson v. Clark (1908), 46
Scotch L. R. 73; 2 B. W. C. C.
228 123
Jarvis, Alexander, Re: Op. Sol.
Dep. C. & L., p. 137 992
Jarvis v. Hitch, 00 Ind. App..
000; 65 N. E. Rep. 608 450
Jefferson, J. E., Re: Op. Sol.
Dep. C. & L., p. 457 1036
Jenkins v. Standard Colliery
Co. (1911), 5 B. W. C. C. 71. . 355
Jenkinson v. Harrison, Ainslie &
Co. (1911), 4 B. W. C. C.
194 497
Jenson v. Will & Finck, 89 Pac.
Rep. 113; 150 Cal. 398 469
Jesson v. Bath (1902), 4 W. C. C.
9 428
Jewell, Samuel, Re: Op. Sol. Dep.
C.&L.,p. 144 1003
Jiminez, Jesus, Re: Op. Sol. Dep.
C. & L., p. 526 1044
Jobson v. W. Cory & Sons
(1911), 4 B. W. C. C. 284. . . . 585
John v.- Albion Coal Co. (1901),
4 W. C. C. 15 487
Johnson, Albert, Re: Op. Sol.
Dep. C. & L., p. 147 1002
Johnson v. Adshead, 2 W. C. C.
158 804, 805
Johnson v. E. C. Clark Motor
Co., 139 N. W. Rep. 30; 173
Mich. 277 474
Johnson v. London Guarantee &
Accident Co., Mass. Indus.
TABLE OF CASES
lvii
Volume 2 begins at page 1053
PAGE
Ace. Bd. -(App. pending to
Sup. Jud. Ct.) 373
Johnson v. Marshall Sons & Co.,
22T. L. R.565 482
Johnson v. Marshall, Sons & Co.
(1906), 94 L. T. 828; 8 W. C.
C. 10 483, 484, 485, 800
Johnson v. Oceanic Steam Navi-
gation Co. (1912), 5 B. W. C.
C. 322 945
Johnson v. Owners of Ship "Tor-
rington" (1909), 3 B. W. C. C.
68 377
Johnson v. Phoenix Bridge Co.,
133 App. Div. 807; 118 Supp.
88 : 47
Johnson v. Railroad Co., 53
Am. St. Rep. 39 1013
Johnston v. Fargo, 184 N. Y. 379 20
Johnston v. Monasterevan Gen-
eral Store Co. (1908), 42
Irish L. T. 268; 2 B. W. C. C.
183 136
Jones, A. T., Re: Op. Sol. Dep.
C. &L., p. 68 1000
Jones, J. F., Re: Op. Sol. Dep.
C. & L. 1, 120 992
Jones, William A., Re: Claim
No. 4173, Ohio Indus. Ace.
Bd., June 4, 1913 112, 456
Jones v. Corporation of Liver-
pool, 14 Q. B. D. 890 113
Jones v. London & South West-
ern Ry. Co. (1901), 3 W. C. C.
46 484
Jones v. New Brynmally Colliery
Co. (1912), 5 B. W. C. C. 375 675
Jones v. Ocean Coal Co. (1899),
80 L. T. 582; 1 W. C. C. 94 . . . 739
Jones v. Owners of the Ship
"Alice and Eliza" (1910), 3
B. W. C. C. 495 122
Jones v. Tirdonkin Colliery Co.
(1911), 5 B. W. C. C. 3 919
Jones v. Walker (1899), 1 W. C.
C.142 731
PAGE
Joos, Gottlob, Re: Op. Sol. Dep.
C. & L., p. 238 432
Joseph, John, Re: Op. Sol. Dep.
C. &L., p. 229 446
Joyce v. Wellingborough Iron
Co. (1911), 5 B. W. C. C. 126 499
Judd v. Metropolitan Asylums
Board (1912), 5 B. W. C. C.
420 767
K
Kahalewai, Solomon, Re: Op.
Sol. Dep. C. & L., p. 411 1011
Kane v. Merry & Cunninghame
(1911), 48 Scotch L. R. 430;
4B. W. C. C. 379 496
Kane. y. Northern Central Rail-
way, 128 U. S. 91 1007
Kansas City v. McDonald, 80
Mo. App. 444 997
Kansas City Southern Ry. Co.
v. Brunty, 133 Fed. Rep. 13. .1024
Karemaker v. Owners of S. S.
"Corsican" (1911), 4 B. W.
C. C. 295 379
Kaui, David, Re: Op. Sol. Dep.
C. & L., p. 495 1043
Kawalki v. Wausau Sulphate
Fibre Co., Wis. Indus. Ace.
Bd., Aug. 24, 1912 394
Kearbn v. Kearon (1911), 45
Irish L. T. 96; 4 B. W. C. C.
435 413
Keast v. The Barrow Haematite
Steel Co. (1899), 1 W. C. C.
99 739
Keating, P. J., Re: Op. Sol. Dep.
C. & L., p. 73 998
Keehan v. City of Milwaukee,
Wis. Indus. Ace. Bd., Sept. 6,
1912 397
Keen's Adm'r v. Keystone Cres-
cent Lumber Co., 118 S. W.
Rep. 355; 000 Ky. 000. . . . . 131
Keeling v. The Monckton Col-
■ lieries, Limited. 573
iviii
TABLE OF CASES
Volume 2 begins at page 1053
PAGE!
Keeling v. The New Monckton
Collieries, Limited 571
Kelly, D. J., Re: Op. Sol. Dep.
C. & L., p. 255 1033
Kelly v. Auchenlea Coal Co.
(1911), 48 So. L. R. 768; 4 B.
W. C. C. 417 %. 370
Kelly v. Kerry County Council
(1908), 42 Irish L. T. 23; 1 B.
W. C. C. 194... 515
Kelly v. Owners of the "Foam
Queen" (1910), 3 B. W. C. C.
113 405,417
Kelly v. People's Outfitting Co.,
Mich. Indus. Ace. Bd., Oct. 15,
1913; The Indicator, Oct. 20,
1913, at page 417 580
Kelly v. Tyra, 115 N. W. Rep.
636; 000 Minn. 000; aff'g
114 N. W. Rep. 750; 103
Minn. 176 457
Kelly v. York Street Flax
Spinning Co. (1909), 43 Irish
L.T.J.81;2B.W.C.C493.. 740
Kempson v. Owners of Schooner
"Moss Rose" (1910), 4 B. W.
C. C- 101 944
Kendall & Gent v. Pennington
(1912), 5 B. W. C. C. 335. . . . 952
Kennedy, M. A., Re: Op. Sol.
Dep. C. & L., p. 103 995
Kennedy v. Chase, 52 Pac. Rep.
33; 119 Cal. 637 478
Kent, L. B., Re: Op. Sol. Dep.
C. <fe L., p. 352 1025
Kerr v. Stewart (1909), 43
Irish L. T. 119; 2 B. W. C. C.
454 796
Kerr v. William Baird & Co.
(1911), 48 Scotch L. R. 646;
4B. W. C. C. 397 497
Keyes Davis Co. v. Allerdyce,
Michigan Industrial Ace.
Board, April, 1913 35, 37
Keyser v. Burdick & Co. (1910),
4 B. W. C. C. 87 414
PAGE
Kiefer v. Grand Trunk Ry. Co.,
12 App. Div. 28; 42 Supp. 171 46
Kimball v. Cushman, 103 Mass.
.194 109
King, Anna, Re: Claim No. 1645,
Ohio St. Lia. Bd. Awd., Jan.
29, 1913 760
King, Ho, Re: 14 Fed. R. 724. . 997
King v. Phoenix Assurance Co.
(1910), 3 B. W. C. C. 442. . . . 959
Kitchenham v. Owners of S. S.
"Johannesburg" (1911), 1 K.
B. 5236 (1911), A. C. 417 401, 402
Kitchenham v. Owners of S. S.
"Johannesburg" (1910), 4 B.
W. C. C. 91, affirmed by the
House of Lords, 4 B. W. C. C.
311 417
Klatt, Reinhold, v. Milwaukee
Electric Ry. & Light Co.,
Wis. Indus. Com., April 22,
1913 658,659
Kline, Wm. L., Re: Op. Sol. Dep.
C. & L., p. 75 998
Klotz v. Newark Paving Co.,
36 N. J. Law J. 271 620
Knisley v. Pratt, 148 N. Y.
372 4,19
Knott v. Tingle Jacobs & Co.
(1910), 4 B. W. C. C. 55.... 739
Koenig, E., v. International
Harvester Co., Wis. Indus.
Com., March 6, 1913 662
Koontz, O. D., Re: Op. Sol. Dep.
C. & L., p. 229 425
Korp, J. J., Re: Op. Sol. Dep.
C. & L., p. 297 1034
Krauser v. Ruckel, 17 Hun, 463 1000
Krueger v. Bartholomay Brew-
ing, 182 N. Y. 544; aff'g 94
App. Div. 58; 87 Supp. 1054. . 468
Krznarich v. Crown Columbia
Paper Co. and The Employers
Liability Assurance Corpora-
tion, Ltd., Cal. Indus. Ace.
Bd., Nov. 7, 1913 666
TABLE OF CASES
lix
Volume 2 begins at page 1053
PAGE
Krzus v. Crow's Nest Pass Coal
Co. (1912), 5 B. W. C. C. 727;
rev'g (1911) 4 B. W. C. C.
469 582
Kuehnle, F. C, Re: Op. Sol. .
Dep. C. &L., p. 531 1048
Kunza v. Chicago & N. W.
Ry. Co., 123 N. W. Rep. 403;
140 Wise. 440 473
Kuschmann, Charles, v. Fuller-
Warren Co., Wis. Indus. Com.,
Feb. 27, 1913 662
Lacorte, Atancio, Re: Op. Sol.
Dep. C. & L., p. 258 1033
Lagerholm, Fritzihoff, Re: Op.
Sol. Dep. C. & L., p. 86 998
Lambert, John, Re: Op. Sol.
Dep. C. & L., p. 94 996
Lamington, The, 87 Fed. 752. . . 46
Lamkin, John, Re: Op. Sol.
Dep. C. & L., p. 100 996
La Mire, G. E., Re: Op. Sol.
Dep. C. & L., p. 43 1001
Langley v. Reeve (1910), 3 B. W.
C. C. 175 372
Laragay v. East Jersey Pipe Co.,
72 Atl. Rep. 57; 000 N. J.
Law, 000; rev'g 68 Atl. Rep.
1073; 000 N. J. Law, 000. .. . 467
Lata v. American Mutual Lia-
bility Ins. Co., Mass. Indus.
Ace. Bd 381
Latak v. Employers' Liability
Assurance Corporation, Mass.
Indus. Ace. Bd 664
Lawrence, A. J., Re: Op. Sol.
Dep. C. &L., p. 140 1002
Lawrie v. James Brown & Co.
(1908), 45 Scotch L. R. 477;
1 B. W. C. C. 137 944
Lax-Fos Co. v. Rowlett, 139
S. W. Rep. 836; 144 Ky. 690. . 443
Leach v. Oakley, Street & Co.
(1910),4B.W.C.C.91 414
PAGE
Leavenworth v. Ransome Con-
crete Co., Cal. Indus. Ace. Bd.,
May6, 1913 388
Lee v. Fidelity & Casualty Co.,
Mass. Indus. Ace. Bd 488
Lee v. Stag Line (1912), 5 B. W.
C. C. 660 516
Lee v. Steamship "Bessie," 5 B.
W. C. C. 55 578
Lee v. William Baird & Co.
(1908), 45 Scotch L. R. 717;
1 B. W. C. C. 34 660
Leeds & Liverpool Canal Co. v.
Hesketh (1910), 102 L. T. 663;
3B. W. C. C. 301...': 906
Lees v. Waring & Gillow (Fergu-
son, third party), (1909), 2
B. W. C. C. 474 649
Legee v. Lacy Manufacturing Co.,
Cal. Indus. Ace. Bd., July 28,
1913 663
Leishman v. William Dixon
(1910), 47 Scotch L. R. 410;
3 B. W. C. C. 560 487
Lemont, Walter, Re: Op. Sol.
Dep. C. & L, p. 355 1025
Lenk v. Kansas & T. Coal Co.,
80 Mo. App. 374 109
Lanzy, Ed., Re: Op. Sol. Dep.
C. & L, p. 291 1034
Leonard v. Columbia Steam
Navigation Co., 84 N. Y. 48 . . 46
Leonard, Nicholas, Re: Op. Sol.
Dep. C. &L, p. 247 412
Lesandro, Anna v. Milwaukee
Electric Ry. & Light Co.,
Wis. Indus. Com., Dec. 13,
1912 957
Letter of Comptroller Trace-
well to the Isthmian Canal
Commission, Sept. 1, 1908,
Op. Sol. Dep. C. & L., p. 618;
15 Comp. Dec, p. 115. .1048, 1049
Letter of Comptroller Tracewell
to the Isthmian Canal Com-
mission April 20, 1909, Op.
Ix
TABLE OF CASES
Volume 2 begins at page 1053
PAGE
Sol. Dep. C. & L., p., 629;
also 15 Compt. Dec. 646 1036
Letter of Comptroller Tracewell
to the Isthmian Canal Com-
mission, January 24th, 1910,
Op. Sol. Dep. C. & L., p. 633;
16 Comp. Dec, p. 477.... 1042
Letter of ComptrollerJTracewell
to the Secretary of War, May
9, 1912, Op. Sol. Dep. C. & L.,
p. 635; 18 Comp. Dec. 872,
Re: 1042
Letter of Comptroller Tracewell
to the Secretary of the Interior,
December 10, 1909, Op. Sol.
Dep. C. & L., p. 632; 15 Comp.
Dec. 464, Re: 1033, 1034
Letter of Comptroller Tracewell
to the Secretary of War, Nov.
3, 1909, Op. Sol. Dep. C. & L.,
p. 630; 16 Comp. Dec, p. 290,
Re: 1042
Lewandowski, Harry, v. Illinois
Steel Co., Wis. Indus. Com.,
Oct. 2, 1912 657, 658
Lewis v. Coupe, 85 N. E. Rep.
1053; 200 Mass. 182 457
Lewis v. Globe Indemnity Co.,
Mass. Indus. Ace. Bd 362
Lick, Christian, v. L. R. Stoll-
berg Co., Wis. Indus. Com.,
Jan. 23, 1913 933
Liggett, John, Re: v. Thomas B.
Jeffery Co., Dec. Wis. Indus.
Com., Jan. 23, 1913 676
Limron v. Pere Marquette R.
Co., Mich. Indus. Ace. Bd.,
July, 1913 654
Lindsay, William, Re: Op. Sol.
Dep. C. & L., p. 491 1041
Lindsay v. M'Glashen & Son
(1908), 45 Scotch L. R. 559;
1 B. W. C. C. 85 571,578
Linnell v. North Star Mines Co.,
Cal. Indus. Ace Bd., Dec. 11,
1913 664
PAGE
Linton v. Smith, 8 Gray (Mass),
147 127
Lipscomb, R., Re: Op. Sol. Dep.
C. &L., p. 34 1003
Liston v. St. Louis Transfer Ry.
Co., 130 S. W. 381; 000 Mo.
App. 000 469
Little, Joseph, Re: Op. Sol.
Dep. C. & L., p. 60 1000
Little, Joseph, Re: Op. Sol. Dep.
C. &L., p. 66 997
Little v. Hackett, 116 U. S. 379 . . 115
Littleford v. Connell (1909), 3
B.W. C.C.I 583
Liverpool, Josephus, Re: Op. Sol.
Dep. C. & L., p. 353 1025
Lloyd, William M., Re: Op. Sol.
Dep. C. & L., p. 209 346
Lloyd v. Sugg & Co. (1900),
81 L. T. 768; 2 W. C. C. 5. . . . 386
London & North- Western Rail-
way v. Taylor (1910), 4 B. W.
C. C. 11 912
Long v. Bergen Common Pleas,
36 N. J. Law J. 246 872
Long v. Bergen County Court of
Common Pleas, 000 N. J. Law,
000; 86 Atl. Rep. 529 955
Longa v. Stanley Hod Elevator
Co., 69 N. J. Law, 31; 54 Atl.
Rep. 251 ill
Loomis v. Lehigh Valley R. R.
Co., 208 N. Y. 312.. .53, 54, 60, 61
Lopez, R. R., Re: Op. Sol. Dep.
C.&L.,p.330 1030
Lopez, Elroy, Re: Op. Sol. Dep.
C.&L.,p.217 411
Losh v. Evans & Co. (1902),
5W.C.C. 17 463
Loughman v. Home Brewing Co.,
Essex Common Pleas, 1913;
36 N. J. Law J. 000 654
Louisville & N. R. Co. v. Chamb-
lee, 54 So. R. 681; 000 Ala. 000 467
Louisville & N. R. Co. v. Hooker,
64 S. W. Rep. 638; 111 Ky.
TABLE OF CASES
Ixi
Volume 2 begins at page 1053
PAGE
707; s. c. 65 S. W. Rep. 119;
111 Ky. 707 452
Louisville & N. R. Co. v. Hol-
land, 51 So. Rep. 365; 000
Ala. 000 494
Lovelady and Others v. Berrie
(1909), 2 B. W. C. C. 62 372
Lowe v. Myers & Sons (1906),
2 K. B. 265; 8 W. C. C. 22 . 795, 804
Lowe v. Pearson (1899), 79 L. T.
654;1W,C.C.5 498
Lowry v. Sheffield Coal Co.
(1907), 24 T. L. R. 142; 1 B.
W. C. C. 1 439
Luttrell, T. F., Re: Op. Sol. Dep.
C.&L.,p. 181 380
Lynch v. Pierce, 1 Bradbury's
PI. & Pr. Rep. 594 440
Lynch v. Texas & P. Ry. Co.,
133 S. W. Rep. 522; 000 Tex.
Civ. 000 476
Lysons v. Andrew Knowles &
Sons 743
Lyte, G. D., Re: Op. Sol. Dep.
C.&L.,p.310 1008
M
Macandrew v. Gilhooley (1911),
48 Scotch L. R. 511; 4 B. W.
C. C. 370 943
MacGillivray v. The Northern
Counties Institute for the
Blind (1911), 48 Scotch L. R.
811; 4 B. W. C. C. 429 119
McAllister, A. C, Re: Op. Sol.
Dep. C. & L., p. 546 1031
McAllister, William H, Re: Op.
Sol. Dep. C. & L., p. 93 996
McAvin v. City Electric Co.,
Cal. Indus. Ace. Bd., March 8,
1912; aff'd by Superior Ct.
216, 588, 771, 807
McCarrel, William, Re: Op. Sol.
Dep. C. & L., p. 490 1041
McCarthy, Edward, Re: Op.
Sol. Dep. C. & L., p. 374 1022
PAGE
M'Carthy v. Norcott (1908), 43
Irish L. T. 17; 2 B. W. C. C.
279 139,271
McClelland v. Massachusetts
Insurance Association, Mass.
Indus. Ace. Bd 489
McClelland v. Todd (1909), 43
Irish L. T. J. 75; 2 B. W. C.
C. 472 116
McClure v. Detroit Southern R.
Co., 109 N. W. Rep. 847; 146
Mich. 457 129
McCormick, M. D., Re: Op. Sol.
Dep. C. &L., 148 1002
McCrae, George, Re: Op. Sol.
Dep. C. & L., p. 293 1034
McCue v. National Starch Mfg.
Co., 142 N.Y. 106 459
McDaid v. Steel (1911), 48
Scotch L. R. 765; 4 B. W. C.
C. 412 497
McDermott, Charles, Re: Op.
Sol. Dep. C. & L., p. 368. . . .1024
McDermott v. Owners of S. S.
Tintoretto (1911), A. C. 35; 4
B. W. C. C. 123 745
McDonald v. Mallory, 77 N. Y.
546 45,55
McDonald v. Owners of Steam-- '
ship "Banana" (1908), 1 B.
W. CO. 185 419
McDonald or Duris v. Wilson's
& Clyde Coal Co. (1912), 5 B.
W. C. C. 478 672
McDougall v. M'Dougall (1911),
48 Scotch L. R. 315; 4 B. W. C.
C. 373 110
McFadden, William E., Re: Op.
Sol. Dep. C. & L., p. 309. . . .1006
McFarland v. Central R. R. Co.,
000 N. J. Law 000; 87 Atl.
Rep. 44 619,868
McGaffigan v. Fidelity & De-
posit Co. of Maryland, Mass.
Indus. Ace. Bd 314
McGhee v. Summerlee Iron Co.
lxii
TABLE OP CASES
Volume 2 begins at page 1053
PAGE
(1911), 48 Scotch L. R. 807;
4 B. W. C. C. 424 659
McGill, Julia, v. Dunn County,
Wis. Indus. Com., Oct. 4,
1912 653
McGill v. Maine & N. H. Gran-
ite Co., 46 Atl. Rep. 684; 70
N.H. 125 „ 504
McGregor v. Auld, 83 Wis. 539;
53 N. W. Rep. 845 419
McGuigan v. Maryland Casu-
alty Co., Mass. Indus. Ace.
Bd 367
McHenry Coal Co. v. Render,
104 S. W. Rep. 996; 31 Ky.
Law, 1274 474
Mclnnes v. Dunsmuir & Jackson
(1908), 45 Scotch L. R. 804;
1 B. W. C. C. 226 363
Mclntyre v. Long Island R. Co.,
150 App. Div. 783; 135 Supp.
309 432
McKee v. Great Northern Rail-
way Co. (1908), 42 Irish L. T.
132; 1 B. W. C. C. 165 421
McKee v. John S. Stein & Co.
(1909), 47 Scotch L. R. 39; 3
B. W. C. C. 544 745
McKrill v. Howard & Jones
(1909), 2 B. W. C. C.
460 107, 449
McLaren et al., v. Caledonian
Ry. Co. (1911), 48 Sc. L. R.
885; 5 B. W. C. C. 492 399
McLauchlan v. Anderson (1911),
48 Scotch L. R. 349; 4 B. W. C.
C. 376 410
McLean v. Moss Bay Hematite
Iron and Steel Co. (1909),
100 L. T. 871; 2 B. W. C. C.
282 581
McLean v. Moss Bay Hematite
Iron and Steel Co. (1910), 3
B. W. C. C. 402 572, 573, 576
McLuckie, . Alexander, v. John
Watson (Edinburgh Court of
Sessions, First Div. June 12,
1913). See Market World
and Chronicle, July 12, 1913,
p. 56 442
McMurray, Alexander, Re: Op.
Sol. Dep. C. & L., p. 462. . . . 1035
McNally John, v. Hudson and
Manhattan R. Co. (Hudson
Common Pleas), Dec. 1913,
000 N. J. Law J. 000 396, 397
McNamara & Co. v. Burtt
(1911), 4 B. W. C. C. 151. . . . 910
McNeice v. Singer Sewing Ma-
chine Co. (1911), 48 Scotch
L. R. 15; 4 B. W. C. C. 351 .. . 453
McNicholcase 604
McNichol v. Patterson, Wilde
& Co. and Employers' Lia-
bility Assur. Corp. Lim., 215
Mass. 000; 102 N. E. Rep.
697 402, 506, 507, 839
McShane v. Harrison, The Pol-
icy Holder, April 10, 1913,
p. 296 511
Maciesa.v. Mass. Consolidated
Mining Co., Mich. Indus.
Ace. Bd., Oct. 15, 1913; The
Indicator, Oct. 20, 1913.. .417, 658
Mack v. Pacific Telephone & Tel-
egraph Co., Cal. Indus. Ace.
Bd., Oct. 7, 1912 392, 675, 928
Mackay v. Central R. Co., 4
Fed. 617 46
Mackay, Finlay, Re: Op. Sol.
Dep. C. & L. p. 106 993
Mackay, Finlay, Re: Op. Sol.
Dep. C. & L., p. 138 1002
Mackay, Katherine G., v. La-
Crosse County, Wis. Indus.
Com., Feb. 13, 1912 639
Mackinnon v. Miller (1909), 46
Scotch L. R. 299; 2 B. W. C.
C 64 517,530
Madix v. Hotchgreve Brewing
Co. 000 Wis. 000; 143 N. W.
Rep. 189 128
TABLE OF CASES
Ixiii
Volume 2 begins at page 1053
PAGE
Magda, Mike, v. Plonkington
Packing Co., Wis. Indus. Ace.
Bd., April 23, 1913 470
Magee v. Mississippi Cent. R.
Co., 48 So. Rep. 723; 95 Miss.
678 429
Maginn v. Carlingford Lough
Steamship Co. (1909), 43
Irish L. T. 123; 2 B. W. C. C.
224 566
Mahomed v. Maunsell (1907),
IB. W. C. C. 269 303
Maillo, J. H., Re: Op. Sol. Dep.
C.&L.,p.498 1045
Main Colliery Co. v. Davies
(1900), A. C. 358; 1 W. C. C.
92; 2 W. C. C. 108 576, 583
Maiorano v. Baltimore & O. R.
Co., 213 U. S. 268 583
Maki, John, v. Superior Steve-
dore Co., Wis. Indus. Com.,
Dec. 10, 1912 671
Malcomson v. Wappoo Mills,
86 Fed. Rep. 192 1000
j Malone, J. L., Re: Op. Sol. Dep.
I C. & L., p. 261 1033
Malone v. Cayzer, Irvine & Co.
(1908), 45 Scotch L. R. 351;
IB. W. C.C. 27 385
Maltbie v. Belden, 167 N. Y.
307; rev'g 45 App. Div. 384;
60 Supp. 824 468
Manaloc, Antonio, Re: Op. Sol.
Dep. C. & L., p. 301 1034
Mann, Samuel, Re: Op. Sol.
Dep. C. & L., p. 392 1023
Marks v. Came (1908), 100 L.T.
950; 2 B. W. C. C. 186 530
Marks v. Rochester Ry. Co.',
41 App. Div. 66; 58 Supp.
210 501
Marriott v. Brett & Beney
(1911), 5 B. W. C. C. 145. . . . 496
Marshall v. Burt & Mitchell Co.,
69 Atl. Rep. 183; 000 N. J.
L. 000 457
PAGE
Marshall v. East Holywell Coal
Co. (1905), 7 W. C. C.
19 340, 351
Marshall v. Orient Steam Navi-
gation Co. (1910), 1 K. B. 79;
3B.W. C. C. 15 927
Marshall v. Owners of Ship
"Wild Rose" (1909), 100 L.
T. 739; 2 B. W. C. C. 76 800
Marshall v. Owners of Ship
"Wild Rose" (1910), 3 B. W.
C. C. 514 800
Marshall v. Sherman, 148 N. Y.
9 60
Martin, N. M., Re: Op. Sol. Dep.
C. &L., p. 499 1046
Martin v. Barnett (1910), 3 B.
W. C.C. 146 665
Martin v.Fullerton& Co. (1908),
45 Scotch L. R. 812; 1 B. W.
C. C. 168 416
Martin v. Kansas City, M. & B.
R. Co., 27 So. Rep. 646; 77
Miss. 720 441
Martin v. Manchester Corpora-
tion (1912), 5 B. W. C. C.
259 397
Martin v. North Jersey Street
Ry. Co., 80 Atl. Rep. 477;
000 N. J. Law, 000 471
Martin v. Travelers' Ins. Co.,
1 F. & F. 505 363
Martinez, Antonio, Re: Op. Sol.
Dep. C. & L., p. 412 1019
Mason, J. W. D., Re: Op. Sol.
Dep. C. & L., p. 480 1039
Mathews v. Kerlin, 48 So. Rep.
123; 122 La. 606 468
Matthews v. Bedworth (1899),
lW.C.C. 124 505
Maundrell v. Dunkerton Col-
lieries Co. (1910), 4 B. W. C.
C. 76, 78 916
Mawdsley v. West Leigh Collier
Co. (1911), 5 B. W. C. C.
80 482
Ixiv
TABLE OF CASES
Volume 2 begins at page 1053
PAGE
Maxson v. J. I. Case Threshing
Machine Co., 116 N. W. Rep.
281; 81 Nebr. 546 474
Mayott, J. E., Re: Op. Sol. Dep,
■ C. &L., p. 616 1047
Mead v. Lockhart (1909), 2 B.
W. C. C. 398 903
Mederos v. Essex Lumber Co.,
Cal. Indus. Ace. Bd., May 13,
1913 458
Medler v. Medler (1908), 1 B.
W. C. C. 332 578
Meeker, H. L., Re: Op. Sol. Dep.
C.&L., p. 56 1001
Megrigian v. Michigan Malleable
Iron Co., Dec. of Mich. Arbi-
tration Committee, Jan. 17,
1913 662
Meissner, E. J., Re: Op. Sol. Dep.
C. & L., p. 103 996
Melchor, G. P., Re: (alias Mar-
tin Lorenzo), Op. Sol. Dep. C.
& L., p. 521 1045
Mellen Lumber Co. v. Indus.
Com. of Wis., 000 Wis. 000;
142 N. W. Rep. 187 673
Meller v. Merchants' Mfg. Co.,
150 Mass. 362; 23 N. E. Rep.
100 459
Melling, I. R., Re: Op. Sol. Dep.
C. & L., p. 101 996
Mericle v. Acme Cement Plas-
ter Co., 136 N. W. Rep. 916;
155 Iowa, 692 470
Merrill v. General Construction
Company, Cal. Indus. Ace.
Bd 771
Merriweather v. Sayre Mining
& Mfg. Co., 49 So. Rep. 916;
000 Ala. 000 130
Merry & Cuninghame v. Black
(1909), 46 Scotch L. R. 812:
2 B. W. C. C. 372 648
Messmer v. Bell & Coggeshall
Co., 117 S. W. Rep. 347; 000
Ky. 000 130
PAGE
Meyer v. Fidelity Co., 96 Iowa,
378 , 361
Michel, August, Re: Op. Sol.
Dep. C. & L., p. 139 1003
Michael v. Henry, 58 Atl. Rep.
125; 209 Pa. St. 213 460
Michigan School for the Blind,
In re: January 22, 1913. .606, 847
Midgette v. Branning Mfg. Co,,
64 S. E. Rep. 5; 150 N. C. 333 131
Migeles, Jose, Re: Op. Sol. Dep.
C. &L., p. 125 992
Mileta v. Newport Mining Co.,
Mich. Indus. Ace. Bd., July,
1913 443
Miller, William, Re: Claim No.
3483, Ohio State Lia. Bd.
Awd., April 18, 1913 513
Miller, William R., Re: Op. Sol.
Dep. C. & L., p. 299 1034
Miller v. California Stevedore
and Ballast Co. and The Fi-
delity and Deposit Co., Cal.
Indus. Ace. Bd., Oct. 2, 1913 354
'Miller v. Pillsbury, 00 Cal. 000;
128 Pac. R. 327 151
Miller v. Public Service Ry. Co.,
00 N. J. Law, 000; 85 Atl. Rep.
1030 '.
Miller v. State of California,
California Industrial Accident
Board, March 6, 1912; aff'd by
the Supreme Court of Cali-
fornia 151
Milliken v. Travelers Insurance
Co., Mass. Indus. Aec. Bd. . . 371
Milliken v. U. S. Fidelity &
Guar. Co., Mass. Indus. Aec.
Bd. Rep. Gas., p. 187 366
Milner v. Great Northern Ry.
Co. (1900), 82 L. T. 187; 2
W. C. C. 51 144
Miner v. Franklin County Tele-
phone Co., 75 Atl. Rep. 663;
83 Vt. 311 470
Minneapolis, St. Paul & S. S. M.
TABLE OF CASES
lxv
Volume 2 begins at page 1053
PAGE
Ry. Co. v. Industrial Commis-
sion of Wisconsin, 00 Wis.
000; 141 N. W. Rep. 1119, 205, 298
Minnesota Iron Co. v. Kline, 199
U.S. 593 87
Miro, Augustin, Re: Op. Sol.
Dep. C. & L., p. 595 389
Missouri, K. & T. Ry. Co. of
Texas v. Balliet, 107 S. W.
Rep. 906; 48 Tex. Civ. App.
641 411
Missouri, K. & T. Ry. Co. of
Texas v. Romans, 114 S. W.
Bep. 157; 00 Tex. Civ. App.
000 132
Missouri, etc., R. Co. v. Baker,
14 Kan. 567... 1000
Missouri Pacific Ry. v. Mackey,
127 U. S. 205 87
Mitchell, A. V., Re: Claim No.
3834, Ohio State Lia. Bd.
Awd., June 2, 1913 476
Mitchell v. Glamorgan Coal Co.
(1907), 23 T. L. R. 588; 9
W. C. C. 16 798
Mitchell v. Grant & Aldcroft
{1905), 7 W. C. C. 113 384
Mitchell v. S. S. "Saxon" (1912),
5B. W. C. C. 623 418
Mitchell-Tranter Co. v. Ehmett,
65 S. W. Rep. 835; 23 Ky.
Law Rep. 1788; 55 L. R. A.
710 437, 477
, Mitchinson v. Day Bros. (1913),
IK. B. 603 402
Molloy v. South Wales Anthra-
cite Colliery Co. (1910), 4
B. W. C. C. 65 438, 440
Montgomery Cotton .Mills v.
Bowdoin, 58 S, Rep. 732; 00
Ala. App. 000 441
Moore, J. B., Re: Op. Sol. Dep.
C. &L., p. 114 994
Moore, W. G., Re: Op. Sol. Dep.
C. &L., p. 56 1001
Moore v. Crow' sNest Pass Coal
PAGE
Company (1910), 15 Br. C. R.
391;4B.W. C. C.451 797
Moore v. Manchester Liners
(1910), A. C. 498; 3 B. W. C.
C. 527 402, 410
Moore v. Manchester Liners
(1908), 3 B. W. C. C. 527,
rev'g 1 K. B. 417; 2 B. W.
C. C. 87 415
Moore v. Naval Colliery Co.
(1911), 5 B. W. C. C. 87 767
Moore v. W. R. Pickering Lum-
ber Co., 29 So. Rep. 990; 105
La. 504 430
Morgan, D. H., Re: Op. Sol.
Dep. C. & L., p. 139 1002
Morgan v. Dixon (1910), 48
Scotch L. R. 296; 4 B. W. C,
C. 363 926
Morgan v. Owners of S. S.
"Zenaida," 25 T. L. R. 446;
2B. W. C. C. 19 376
Moronen v. McDonnell, 00
Mich. 000; 143 N. W. Rep.
8 449
Morris, J. R., Re: Op. Sol. Dep.
C.&L.,p.376 1020
Morris v. Duluth S. S. & A. Ry.
Co., 108 Fed. Rep. 747 1024
Morris v. Lambeth Borough
Council (1905), 8 W. C. C. 1 . . 448
Morrisett v. Elizabeth City Cot-
ton Mills, 65 S. E. Rep. 514;
151 N. C. 31 469
Morrison v. Clyde Navigation
Trustees (1908), 46 Scotch L.
R. 38; 2 B. W. C. C. 99 461
Morter v. Great Eastern Ry.
Co. (1908), 2 B. W. C. C. 480 145
Mortimer v. Secretan (1909),
100 L. T. 721; 2 B. W. C C.
446 796
Morton, D. O., Re: Op. Sol. Dep.
C. &L., p. 385 1014
Moses v. Standard Oil Co., Cal.
Indus. Ace. Ed., Feb. 24, 1913 590
lxvi
TABLE OP CASES
Volume 2 begins at page 1053
PAGE
Moss & Co. v. Akers (1911), 4
B. W. C. C. 294 894
Mountain v. Parr (1899), 80
L. T. 342; 1 W. C. C. 110. . . . 805
Mountain Copper Co. v. Bas-
signani, Cal. Indus. Ace. Bd.,
Oct. 29, 1913 683
Moyse v. Northern Pacific Ry.
Co., 108 Pac. R. 106lS 41 Mon-
tana, 272 432
Mueller, Marthias, v. Milwaukee
Electric Ry. Co., Wis. Indus.
Com., Feb. 15, 1913 638
Mueller v. Oelkers Mfg. Co., 36
N. J. Law J. 117... 140, 490,
658, 731, 758
Mulhall v. Fallon, 176 Mass. 266 36
Mulhern v. McDavitt, 16 Gray,
404 605
Mullen v. D. Y. Stewart & Co.
(1908), 45 Scotch L. R. 729;
IB. W. C. C.204 512
Muller v. Oakes Mfg. Co., 113
App. Div. 689; 99 Supp. 923
420, 421
Muller v. The Batavia Line
(1909), 2 B. W. C. C. 495 918
Mullins, S. J., Re: Op. Sol. Dep.
C. &L., p. 40.... .......997, 999
Mulrooney v. Todd and the
Bradford Corporation (1908),
100 L. T. 99; 2 B. W. C. C. 191 530
Mulverhffl, J. F., Re: Op. Sol.
Dep. C. & L., p. 538 1030
Munoz, A. G., Re: Op. Sol. Dep.
C. & L., p. 510 1044
Murphy v. American Mutual
Liability Ins. Co., Mass. In-
dus. Ace. Bd. (App. pending
to Sup. Jud. Ct.) 603
Murphy v. Berwick (1909), 43
Irish L. T. 126; 2 B. W. C. C.
103 509
Murphy v. Columbian Fire
Proofing Co., 182 Mass. 93; 64
N. E. Rep. 726 445
PAGE
Murphy v. Enniscorthy Board
of Guardians (1908), 42 Irish
L. T. 246; 2 B. W. C. C. 291 . . 120
Murray, William, Re: Op. Sol.
Dep. C. & L., p. 201 346, 351
Murray v. Denholm & Co.
(1911), 48 Sc. L. R. 896; 5 B.
W. C. C. 496 510
Mutual Accident Assn. v. Barry,
131 U. S. 100, 121; 9 Sup. Ct.
R. 755; 33 L. Ed. 60 350
N
National Telephone Co. v. Smith
(1909), 46 Scotch L. R. 988;
2 B. W. C. C. 417. 952
Natomas Consolidated of Cali-
fornia v. Selfridge, Cal. Indus.
Ace. Bd. (filed Nov. 19, 1912) 591
Naylor v. Musgrave Spinning
Co. (1911), 4 B. W. C. C. 286 461
Neice v. Farmers' Co-operative
Creamery & Supply Co., 133
N. W. Rep. 878; 00 Nebr. 000 451
Nekoosa-Edwards Paper Co. v.
Industrial Commission, 00
Wis. 000; 141 N. W. Rep. 1013 493
Nellis, James, Re: Op. Sol. Dep.
C. &L., p. 221 502
Nelson, Andrew, Re: Op. Sol.
Dep. C. & L., p. 383 1014
Nelson v. Belfast Corporation
(1908), 42 Ir. L. T. 223; 1 *
B. W. C. C. 158' 438 "
Nelson v. California Stevedore
and Belfast Co. & Pacific
Coast Casualty Co., Cal.
Indus. Ace. Bd 945
Nelson v. Great Western Power
Co., Cal. Indus. Ace. Bd.,
Sept. 16, 1913 589 '
Nelson v. La Crosse County,
Wis. Indus. Com., Feb. 13,
1912 639
Nelson v. Western Steam Nav.
TABLE OP CASES
lxvii
Volume 2 begins at page 1053
PAGE
Co., 100 Pac. Rep. 325; 52
Wash. 177 132
Nelson v. Withrow, 14 Mo. App.
270 1000
Neumann v. Milwaukee Railway
and Light Co., Wis. Indus.
Ace. Bd., May 2, 1912 495
Nevadjic, Jelena, v. Northwest-
ern Iron Co., Dec. Wis. In-
dus. Com., June 14, 1912; aff'd
00 Wis. 000; 142 N. W. Rep.
271 579, 638
Neville v. Kelly Bros. & Mitchell
(1907), 13 B. C. 125; 1 B. W.
C. C. 432 514
New Monckton Collieries v.
Keeling (1911), 4 B. W. C. C.
332, reversing Keeling v. New
Monckton Collieries (1910),
4B.W. C. C.49. 577
New York Ship Building Com-
pany v. Buchanan, 00 N. J.
Law, 000; 87 Atl. Rep. 86 955
Nicholas, J. V., Re: Op. Sol.
Dep. C. & L., p. 97 995
Nicholson v. Piper (1906), 96
L. T. 75; 9 W. C. C. 123, aff'd
House of Lords (1907), A. C.
215; 97 L. T. 119; 9 W. C. C.
128 894
Niddrie v. Benhar Coal Co. v.
Young (1912), 49 Sc. L. R.
518; 5 B. W. C. C. 552 578
Niebuhr, "Frank C, v. State of
Wisconsin, Wis. Indus. Com.,
April 24, 1913 558
Niemeier, Edward, Re: (alias
W. J. Niemeir), Op. Sol. Dep.
C.&L.,p.444 1035
Nihill v. Board of Supervisors of
Santa Clara County, Cali-
fornia, Cal. Indus. Ace.
Bd 682
Nisbet v. Rayne & Burn (1910),
2 K. B. 689; 3 B. W. C. C. 507
400, 505
PAGE
Nitram Co. v. Creagh, 00 N. J.
Law, 000; 80 Atl. Rep. 435 .. . 654
Nochols v. London Guarantee &
Accident Co., Mass. Indus.
Ace. Bd. (App. pending to Sup.
Jud. Ct.) 584
Noden v. Galloways (1911), 5
B. W. C. C. 7 390
Nolan v. Porter and Sons (1909),
2B. W. C. C. 106 407, 417
Norfolk & W. Ry. Co. v. Bon-
durant's Adm'r, 59 S. E. Rep.
1091; 107 Va. 515 133
Noriega, Ymsel, Re: Op. Sol.
Dep. C. & L., p. 296 1034
Norman & Burt v. Walder
(1904), 90 L. T. 531; 6 W. C.
C. 124 915
North American Life & Accident
Ins. Co. v. Burroughs, 69
Penn. 43 368
Northern Coal and Coke Co. v.
AUera, 104 Pac. Rep. 197; 46
Colo. 224 479
Northwestern Iron Co. v. In-
dustrial Com. of Wis., 00 Wis.
000; 142 N. W. Rep. 271 579
Nurse, George, Re: Op. Sol.
Dep. C. & L., p. 501 1044
O
O'Brien, Michael, Re: Op. Sol.
Dep. C. & L., p. 298 1034
O'Brien v. Star Line (1908), 45
Scotch L. R. 935; 1 B. W. C.
C. 177 415
O'Brien v. Western Steel Co.,
13 S. W. Rep. 402; 100 Mo.
182 477
O'Donovan v. Cameron, Swan
& Co. (1901), 2 Irish R. 633. . 585
O'Hara v. Hayes (1910), 44 Irish
L. T. 71; 3 B. W. C. C. 586. . . . 364
O'Hare v. Badger Brass Mfg.
Co., Wis. Indus. Com., Jan. 23,
1913 657
lxviii
TABLE OF CASES
Volume 2 begins at page 1053
PAGE
O'Keefe v. Lovatt (1901), 4 W.
C. C. 109 567
Oklobezcka, Nic, v. Northwest-
ern Iron Co., Wis. Indus.
Com., Dec. 19, 1912 653
Old Times Distillery Co. v.
Zehnder, 52 S. W. Rep. 1051;
21 Ky. Law Rep. 753 112
Oliver v. Northern Pacific Ry.
Co., 196 Fed. Rep. 432 112
Olsen, J. P., Re: Op. Sol. Dep.
C. &L. p. 107 993
Olsen, J. P., Re: Op. Sol. Dep.
C.&L.,p. 112 994
Olsen v. Andrews, 168 Mass. 261;
47 N, E. Rep. 90 419,428
Olson v. Minneapolis & St. L. R.
Co., 78 N. W. Rep. 975; 76
Minn. 149 436
O'Neill v. Ropner & Co., 42 Irish
L. T. 3; 2 B. W. C. C. 334. ... 908
O'Neil v. The Anglo-American
Oil Co. (1909), 2 B. W. C. C.
434 952
Opinions of Justices as to Con-
stitutionality of House Bill
2154; Senate Bill No. 615, 209
Mass. 607; 96 N. E. Rep.
308;1N.C. C. A.557.11, 29,
30, 87, 314
Orrell Colliery Company v. Scho-
field '. 569
Osband v. Tabor (1912), "The
Policy Holder," April 10,
1912, p. 296 384
Osborne, Elemo, Re: Op. Sol.
Dep. C. & L., p. 419 1004
Osborne v. Jackson, 11 Q. B. D.
619 1000
Osbourne, Simeon, Re; Op. Sol.
Dep. C. & L., p. 489 1040
Osgood, F. T., Re: Op. Sol. Dep.
C. & L., p. 304 1009
Ourand, H. A., Re: Op. Sol. Dep.
C.&L.,p. 171 343
Owners of the Steamship "Se-
PAGE
gura" v. Blampied (1911), 4
B. W. C. C. 192 894
Owners of Steamship "Swansea
Vale" v. Rice (1911), 104 L.
T. 658; 4 B. W. C. C. 298. . . . 799
Owners of Vessel "Tynron" v.
Morgan (1909), 100 L. T. 461;
2B. W. C. C. 406 917
Pabisiz v. Newark Spring Mat-
tress Co., 36 N. J. Law J.
114 651,948
Paddington Borough Council
v. Stack (1909), 2 B. W. C. C.
402 927
Paducah Box & Basket Co. v.
Parker, 136 S. W. Rep. 1012;
143 Ky. 607, 115
Page v. Burtwell (1908), 1 B.
W. C. C. 267 304
Palacios, Eloy, Re: Op. Sol. Dep.
C. & L., p. 126 992
Palmarei v. Grand Trunk Ry.
Co., Market World & Chron-
icle (N. Y.), Oct. 26, 1912,
p. 534 587
Panganiban, Bonifacio, Re: Op.
Sol. Dep. C. & L., p. 379, . . .1016
Pangburn, J. H., Re: Op. Sol.
Dep. C. & L., p. 109 993
Papius, Popanx, Re, Op. Sol.
Dep. C. & L., p. 249 454
Paradise v. City of Rice Lake,
Wis. Indus. Ace. Bd 468
Parker v. Hambrook (1912), 5
B. W. C. C. 608 495
Parker v. Pont (1911), 5 B. W.
C. C. 45 439
Parkinson Sugar Co. v. Riley,
50 Kansas, 41; 31 Pac. Rep.'
1090 431
Passus, Pete, Re: Op. Sol. Dep.
C. &L., p. 289 1033
Paterson v. A. G. Moore & Co.
TABLE OF CASES
lxix
Volume 2 begins at page 1053
PAGE
(1910), 47 Scotch L. R. 30;
3 B. W. C. C 541 915
Patterson, Gertrude, Re: Claim
No. 1014, Ohio St. Lia. Bd.
Awd., Dec. 16, 1912 874
Patton, Parker, Re: Op. Sol.
Dep. C. & L., p. 484 1040
Paul v. Travelers Ins. Co.,
112 N. Y. 472 370
Payne and Another v. Clifton
(1910), 3 B. W. C. C. 439. . . . 893
Payne v. New York, Susque-
! hanna & W. R. Co., 201 N. Y.
436 47,60
Payne v. Riverside Scrap Iron
and Metal Co., Mich. Indus.
Ace. Bd., October 15, 1913;
The Indicator, October 20,
1913, at page 417 668
Peabody, Harry, v. Town of
i Superior, Dec. Wis. Indus.
Com., June 1, 1912 542
Pearce v. London & South
Western Ry. Co. (1899), 2
W. C. C. 152 451
Pearce v. London and South
Western Ry. Co. (1900), 82
L. T. 487; 2 W. C. C. 47. . . . 144
Pederson v. D., L. & W. R. Co.,
197 Fed. Rep. 537 178
Pedez, Elias, Re: Op. Sol. Dep.
C. & L., p. 135 991
Pedrick, B. G., Re: Op. Sol. Dep.
C. & L., p. 53 999
Peel v. Lawrence & Sons (1912),
5B. W. C. C. 274 436
Peers v. Astley and Tyldesley
Collieries Co. (1901), 3 W.
C. C. 185 742
Peffer, Sam., Re: Op. Sol. Dep.
C. &L., p. 53 998
Pendar v. H. & B. American
Mach. Co., 000 Rhode Island,
000; 87 Atl. Rep. 1 62
Pendergast v. Yandes, 124 Ind.
159r 1000
PAGE
Pendo v. Mammoth Cooper Min-
ing Co., Cal. Indus. Ace, Bd.,
May 20, 1913 360
Penn v. Spiers & Pond (1908),
1 B. W. C. C. 401 739,801
Pensabene v. Auditore Co.,
2 Bradbury's PI. and Pr. Rep.
197; s. c. 2 Bradbury's PI.
and Pr. Rep. 212. 12, 34, 57,
61, 178
Pent, T. C, Re: Op. Sol. Dep.
C. & L., p. 143 1002
Perkins, Charles, Re: Op. Sol.
Dep. C. & L., p. 470 1035
Perlsburg v. Muller, 35 N. J.
Law J. 202. .40, 42, 302, 321,
508, 620, 948
Perron, L. F., Re: Op. Sol. Dep.
C. & L., p. 536 1043
Perron, L. F., Re= Op. Sol. Dep.
C. & L., p. 579 393
Perry v. Anglo-American Deco-
rating Co. (1910), 3 B. W. C.
C.310 407
Perry v. Ocean Coal Co. (1912),
5B. W. C. C. 421 391
Perry v. Wright (1908), 98 L. T.
327; 1 B. W. C. C. 351 732
Perry v. Wright (1907), 98 L. T.
327; 1 B. W. C. C. 351, at page
356 of the last-mentioned
report 740
Petry, J. H., Re: Op. Sol. Dep.
C. & L., p. 366 1017
Pfeffer v. Stein, 26 App. Div.
535; 50 Supp. 516 441
Philadelphia, B. & W. R. Co.
v. Tucker, 35 App. Dec.
123 429
Philip, Jarvis, Re, Op. Sol. Dep.
C.&L., p. 181 387
Phillips, R. B., Re: Claim No.
3514, Ohio Indus. Ace. Bd.,
May 5, 1913 439
Phillips v. Williams (1911), 4
B. W. C. C. 143 439
lxx
TABLE OF CASES
Volume 2 begins at page 1053
PAGE
Pickett, I. W., Re: Op. Sol.
Dep. C. & L., p. 62 997
Pickett v. Pacific Mutl. Life
Ins. Co., 144 Pa. St. 79 370
Pierce v. The Provident Cloth-
ing and Supply Co. (1911),
104 L. T. 473; 4 B. W. C. C.
242 453
to
Pietrovosky v. Western Meat
' Co., Cal. Indus. Ace. Bd.,
Dec. 22, 1913 667
Pigeon v. Employers' Liability
Assur. Corp., 215 Mass. 000;
102 N. E. Rep. 932 . . 114, 447,
840, 897
Pimms v. Pearson (1909), 2
B. W. C. C. 489 383
Pioneer Mining & Mfg. Co. v.
Talley, 43 So. Rep. 800; 000
Ala. 000 476
Pittsburg, C. & St. L. R. Co. v.
Adams, 105 Ind. 151; 5 N. E.
Rep. 187 459
Pittsburg Vitrified Pav. & Bldg.
Brick Co. v. Fisher, 100 Pac.
Rep. 507; 79 Kans. 576. .430, 479
Pliska, Felis, v. Hatton Lumber
Co., Wis. Indus. Com., June 14,
1912 640
Poetsch & Peterson and South-
western Surety Ins. Co. v.
Malaret, Cal. Indus. Ace.
Bd., Dec. 8, 1913 590
Pohl, August, Re: Op. Sol. Dep.
C. & L., p. 185 388
Pollard v. Goole and Hull Steam
Towing Co. (1910), 3 B. W.
C. C. 360 531
Polled v. Great Northern Rail-
way Co. (No. 2) (1912), 5
B. W. C. C. 620. See same
case on previous appeal (1911),
5B. W. C. C. 115 578
Pollock v. United States, etc.,
Association v. Newman, 84
Va. 52 370
PAGE
Pomfret v. Lancashire & York-
shire Ry. Co. (1903), 89 L. T.
000; 5 W. C. C. 22 409
Pope v. Hill's Plymouth Co.
(1911), 5 B. W. C. C. 175;
aff'g 3 B. W. C. C. 339 434
Popke, August, v. Waupaca
County, Wis. Indus. Com.,
May 4, 1912 669
Porton v. Central (Unemployed)
Body of London (1908), 100
L. T. 102; 2 B. W. C. C. 296. . 119
Posey, J. A., Re: Op. Sol. Dep.
C. & L., p. 145 1002
Poulton v. Kelsall (1912), 5 B. W.
C. C. 318 510
Powell v. Bryndu Colliery Co.
(1911), 5 B. W. C. C. 124. . . . 495
Powers, S. A., Re: Op. Sol. Dep.
C. & L., p. 497 1045
Powers, S. W., Re: Op. Sol.
Dep. C. & L., p. 176 350
Powers v. Smith (1910), 3 B. W.
C. C. 470 364
Price, Stephen, Re: Op. Sol.
Dep. C. & L., p. 127 993
Price v. Burnyeat, Brown & Co.
(1907), 2 B. W. C. C. 337 ... . 670
Price v. Marsden & Sons (1899),
80 L. T. 15; 1 W. C. C. 108. . 742
Priestley v. Fowler, 3 M. & W. 1 4
Princeton Coal Mining Co. v.
Downer, 93 N. E. Rep. 000
Ind. App. 000 130
Priolean, T. G., Re: Op. Sol.
Dep. C. & L., p. 43 1001
Proctor ■& Sons v. Robinson
(1909), 3 B. W. C. C. 41 909, 917
Producers' Oil Co. v. Barnes,
120 S. W. Rep. 1023; 000
Tex. Civ. App. 000 470
Pryce v. Penrikyber Navigation
Colliery Co. (1901), 85 L. T.
477; 4 W. C. C. 115 583
Pugmire v. Oregon Short Line
R. Co., 92 Pac. Rep. 762; 13
TABLE OF CASES
Ixxi
Volume 2 begins at page 1053
PAGE
Utah, 27; 13 L. R. A. (N. S.)
565 118
Punkosski v. New Castle Leather
Co., 57 Atl. Rep. 559; 4 Penn-
ewill (Del. Super.), 544 457
Purse v. Hayward (1908), 1
B. W. C. C. 216 367
Putman v. Pacific M. Co., 000
Oregon, 000; 130 Pac. R. 986 . . 426
Pyrah, Jacob, Re: Op. Sol. Dep.
C. &L., p. 101 995
Quinlan v. Barber Asphalt Pav-
ing Co., 000 N. J. Law, 000;
87 Atl. Rep. 127 619
Quinn v. Flynn (1910), 44
Irish L. T. R. 183; 3 B. W. C
C.594 928
Quinn v. M'Callum (1908),
46 Scotch L. R. 141; 2 B. W.
C. C. 339.. 917
R
Race, Christine, v. Mitchell
Lewis Motor Co., Wis. Indus.
Com., Nov. 25, 1912 638
Radcliffe v. The Pacific Steam
Navigation Co. (1910), 102 L.
T. 206; 3 B. W. C. C. 185. . . 903
Radic v. American Car and
Foundry Co., Dec. of Mich.
Arbitration Committee, Dec.
18, 1912 656
Ralins v. Great Western Power
Co., Cal. Indus. Ace. Bd.,
Dec. 5, 1912 588, 589
Rankel v. Buckstaff-Edwards
Co., 120 N. W, Rep. 269; 138
Wise. 442; 20 L. R. A. (N. S.)
1180 132
Ransom, William H., Re: Op.
Sol. Dep. C. & L., p. 85 1000
Rathbun-Jones Engineering Co. 42
PAGE
Rawlins, Allen, Op. Sol. Dep.
C.&L.,p.l33 991
Rayman v. Fields, No. 2 (1910),
102 L. T. R. 154; 3 B. W. C.
C. 123 893
Raymond v. United States Cas-
ualty Co., Mass. Indus. Ace.
Bd 395
Rayner v. Sligh Furniture Co.,
Mich. Indus: Ace. Bd., June,
1913 423, 492
Redburn, Frank, Re: Op. Sol.
Dep. C. & L., p. 118 992
Redondo, J. G., Re: Op. Sol.
Dep. C. &L., p. 456 1036
Reed v. Great Western Ry. Co.
(1908), 99 L. T. 781; 2 B. W.
C. C. 109 461
Reed v. Missouri, K. & T. Ry.
Co., 68 S. W. Rep. 364; 94 Mo.
App. 371 431
Reed v. Smith, Wilkinson & Co.
(1910), 3 B. W. C. C. 223. . . . 531
Reeks v. Kynoch (1901), 4 W.
C. C. 14 483
Rees v. Penrikyber Navigation
Colliery Co. (1902), 87 L. T.
661; 5W.C.C. 117 582
Rees v. Powell Duffryn Steam
Coal Co. (1900), 4 W. C. C.
17 483
Rees v. Thomas (1899), 80 L. T.
578; 1 W. C. C. 9 503
Reeves, A. F., Re: Op. Sol. Rep.
C. &L., p. 54 1001
Refuge Assurance Co. v. Millar
(1911), 49 Sc. L.R. 67; 5 B.
W. C. C. 522 452,768
Regan v. Travelers Ins. Co.,
Mass. Indus. Ace. Bd 754
Reinburg, A. L., Re: Op. Sol.
Dep. C. &L., p. 311 1006
Reisinger, C. L., Re: Op. Sol.
Dep. C. &L. p., 124 992
Rennie v. Reid (1908), 45 Scotch
L. R. 814; 1 B. W. C. C. 324 139
lxxii
TABLE OF CASES
Volume 2 begins at page 1053
PAGE
Renwick, Altman, Re: Op. Sol.
Dep. C. & L., p. 136 993
Revie v. dimming (1911), 5 B.
W. C. C. 483 496
Rex v. Coney Island and Brook-
lyn R. R. Co., 2 Bradbury's
PI. & Pr. Rep. 296 303
Rex v. Solomons (19^9), 2 K.
B. 980 127
Reynolds v. Seneca Tails Mfg.
Co., 137 App. Div. 446; 122
Supp. 797 444
Rhatigan v. Brooklyn Union
Gas Co., 136 App. Div. 727;
121 Supp. 481 109
Rhoades v. Varney, 91 Maine,
222; 39 Atl. Rep. 552 110
Rhodes v. Soothill Wood Colliery
Co. (1908), 100 L. T. 15; 2 B.
W. C. C. 377 804
Richardson v. Owners of Ship
"Avonmore" (1911), 5 B. W.
C. C. 34 413
Richardson v. Stage, 43 Tex. 456 135
Richards v. Sanders & Sons
(1912), 5 B. W. C. C. 352. . . . 801
Richmond v. Sitterding, 101 Va.
354; 99 Am. St. Rep. 879; 43
S. E. Rep. 562; 65 L. R. A.
445 127
Ricketts, Ferdinand, Re: Op.
Sol. Dep. C. & L., p. 341. . . .1029
Rider v. C. H. Little Co.,
Mich. Indus. Ace. Bd., April,
1913 115,656
Riggs, C. H., Re: Op. Sol. Dep.
C. & L., p. 119 992
Riker v. Liondale Bleach Dye
and Print Works, 36 N. J.
Law J. 305 357, 647
Riley v. Cudahy Packing Co.,
117 N. W. Rep. 765; 82 Nebr.
319 444,445
Riley v. W. Holland & Sons
(1911), 1 K. B. 1029; 4 B. W.
C. C. 155 438
PAGE
Rimmer v. Wilson, 93 Pac. Rep.
1110; 000 Colo. 000 467
Rintoul v. Dalmeny Oil Co.
(1908), 45 Scotch L. R. 809;
1 B. W. C. C. 340 576
Roberts, J. W., Re: Op. Sol. Dep.
C.&L.,p. 335 1028
Roberts, S. J., Re: Op. Sol. Dep.
C. &L., p. 99 • 996
Roberts v. Benham (1910), 3 B.
W. C. C. 430 803
Roberts & Ruthven v. Hall
(1912), 5 B. W. C. C. 331. . . . 920
Robertson v. Allen Brothers &
Co. (1908), 98 L. T. 821; 1 B.
W. C. C. 172 415
Robertson v. Hall Brothers
Steamship Co. (1910), 3 B. W.
C. C. 368 576
Robideaux v. Hebert, 43 So.
Rep. 887; 118 La. 1089 128
Robinson, H. L., Re: Op. Sol.
Dep. C. & L., p. 302 1007
Robinson v. Anon (1904), 6 W.
C. C. 117 575
Robson, Eckford & Co. v. Blakey
(1911), 49 Sc. L. R. 254; 5 B.
W. C. C. 536 378
Rock, Theodore, Re: Op. Sol.
Dep. C. & L., p. 464 1037
Rock v. Indiana Orchard Mills,
142 Mass. 522; 8 N. E. Rep.
401 463
Rockwell, A, M., Re: Op. Sol.
Dep. C. & L., p. 242 380
Rodger v. Paisley School Board
(1912X 49 Sc. L. R. 413; 5 B.
W. C. C. 547 362
Rodger v. Paisley School Board
(1912), 49 Sc. L. R. 413; 5 B.
W. C. C. 547 456
Rodriguez, A. G., Re: Op. Sol.
Dep. C. & L., p. 444 1036
Rodriguez, Eulogio, Re: Op. Sol.
Dep. C. & L., p. 189. . . .397, 398
Roper v. Greenwood (1901).
TABLE OF CASES
lxxiii
Volume 2 begins at page 1053
PAGE
83 L. T. R. 471; 3 W. C. C.
23 368, 369
Rosasco v. Ideal Opening Die
Co., 79 Misc. 507; 141 Supp.
23 20, 21
Rosenquist v. Bowring & Co.
(1908), 98 L. T. 773; 1 B. W.
C. C. 395 737
Rothwell v. Davies (1903), 5 W.
C. C. 141 396
Rowland v. Wright (1908), 1
K. B. 963 400
Rowland v. Wright (1908), 1 B.
W. C. C. 192 513
Ruabon Coal Co. v. Thomas
(1909), 3 B. W. C. C. 32 907
Rugan, E. A., Re: Op. Sol. Dep.
C. & L., p. 220 422
Russell v. Lachman & Jacobi,
Cal. Indus. Ace. Bd., June 18,
1913 589
Russell v. Oregon Short Line R.
Co., 155 Fed. Rep. 22 479
Ryalls v. Mechanics Mills, 150
Mass. 190 400
Ryan, James, Re: Op. Sol. Dep.
C.&L.,p. 116 994
Ryan, M. J., Re: Op. Sol. Dep.
C.&L.,p.341 1030
Ryan v. County Council of Tip-
perary (S. R.) (1912), 48 Ir.
L. T. 69; 5 B. W. C. C. 578. . . 115
Ryan v. Phipps, 146 App. Div.
642; 131 Supp. 438 464
S
Sabanas, Halecio, Re: Op. Sol.
Dep. C. & L., p. 340 1026
Said, Ibrahim, v. J. H. Welsford
& Co. (1910), 3 B. W. C. C.
233 797
Saleska v. Rikard Lumber Co.,
Dec. of Mich. Arbitration
Committee, Jan. 6, 1913 656
Salzmann, Charles, Re: Op. Sol.
Dep. C. & L., p. 599 1047
PAGE
Sanderson v. Globe Indemnity
Co., Mass. Indus. Ace. Bd 412
Santini v. Mammoth Copper
Min. Co., Cal. Indus. Ace.
Bd., Oct. 14, 1913 382
Sapcote & Sons v. Hancock
(1911), 4 B. W. C. C. 184. .. . 917
Sapp v. State, 116 Ga. 182 1013
Scanlon, C. B., Re: Op. Sol. Dep.
C. & L., p. 590; s. c, p. 591 .. . 358
Schenk, C. B., Re: Op. Sol. Dep.
C. &L, p. 118 994
Schlosser, J. W., Re: Op. Sol.
Dep. C. & L, p. 105 996
Schmidt, Edward, Re: Claim No.
6, Ohio Industrial Accident
Board, July 10, 1912 35, 42
Schmitz v. City of Appleton,
Wisconsin Industrial Accident
Board, September 30, 1912
118, 206
Schmnoske v. Asphalt Ready
Roofing Co., 129 App. Div.
500; 114 Supp. 87 443
Schoen v. Chicago, St. P., M. &
0. Ry., 127 N. W. Rep. 433;
112 Minn. 38 112
Schofield v. Orrell Colliery Co.
(1908), 100 L. T. 104; 2 B. W.
C.C.301 568, 581
Schroeder, C. L., Re: Op. Sol.
Dep. C. & L., p. 172. . . .>343, 373
Schroeder v. Barker & Stewart
Lumber Co., Wis. Indus.
Com., Nov. 20, 1912 636
Schultz, Frank, Re: Op. Sol.
Dep. C. & L, p. 409 1011
Schwartz v. Indiarubber, Gutta-
percha and Telegraph Works
Co. (1912), 2 K. B. 299; 5 B.
W. C. C. 390 35, 38
Schweitzer v. Hamburg Amer-
ican Line, 3 Bradbury's PI. &
Pr. Rep. 285; 78 Misc. 448;
138 Supp. 944 44, 61
Schweitzer v. Hamburg Amer-
lxxiv
TABLE OF CASES
Volume 2 begins at page 1053
PAGE
ican line, 149 App. Div. 900;
134Supp. 812 44
Scotstoun Estate Co. v. Jackson
(1911), 48 Scotch L. R. 440;
4B. W. C. C. 381 802
Second Employers' Liability
Cases, 223 U. S. 1; Brad-
bury's Workmen's Compensa-
tion and State Ins. L. (1st
Ed.), p. 785. .18, 19, 29, 30, 47, 60
See v. Leidecker, 152 Ky. 724;
154 S.W. Rep. 10 115
Seiniski v. Wilmington Leather
Co., 83 Atl. Rep.' 20;, 00 Del.
Supr. 000 \ 457
Self v. Adel Lumber Co., 64 S. E.
Rep. 112; 5 Ga. App. 846. .. . 408
Senior v. Fountains- & Burnley
(1907), 23 T. L. R. 634; 9 W.
C.C. 116 572, 573,577
Sexton v. Newark District Tele-
graph Co., 00 N. J. Law, 000;
2 Bradbury's PI. and Pr. Rep.
221; 3 N. C. C. A. 569; 86 Atl.
Rep. 451 12, 33, 40, 42
Seywald v. The Ford Motor
Co., Cal. Indus. Ace. Bd., June
26, 1913 , 455
Shadoan's Adm'r v. Cincinnati,
N. O. & T. P. R.-Co., 82
S. W. Rep. 567; 26 Ky. Law
Rep. 828. 451
Shaffer, Laura M., Re: Claim
No. 41, Ohio St. Lia. Bd.
Awd., June 14, 1912. .580, 623, 784
Shappard, A. H., Re: Op. Sol.
Dep. C. & L., p. 80. . . , 1000
Sharf v. Packard Motor Co.,
Mich. Indus. Ace. Bd., April,
1913 392
Sharman v. Holliday & Green-
wood (1903), 90 L. T. 46; 6
W. C.C. 147 904
Sharp v. Johnson & Co. (1905),
92 L. T. 675; 7 W. C. C. 28
420, 427
PAGE
Sharpe v. Midland Ry. Co.
(1903), 88 L. T. 545; 5 W.
C. C. 128, aff'd Midland Ry.
Co. v. Sharpe (1904), 6 W. C.
C. 119.. 737
Shaw v. Wigan Coal & Iron Co.
(1909), 3 B. W. C. C. 81. .509, 512
Shea v. Westinghouse Electric
& Mfg. Co., 147 App. Div.
660; 132 Supp. 612. . : 442
Sheeran v. F. & J. Clayton &
Co. (1909), 44 Irish L. T. 52;
3B. W. C. C. 583 350
Sheeran, John, Re: 28 Op.
Atty. Gen. 254; same case re-
ported Op. Sol. Dep. C. & L.,
p. 169 342, 343, 372, 376
Ship "Victoria" v. Barlow
(1911), 45 Ir. L. T. 260; 5 B.
W. C. C. 570 125
Shirt v. The Calico Printers'
Ass'n (1909), 100 L. T. 740;
2B. W. C. C. 342 395
Short v. Fort Dodge Light and
Power Co., 128 N. W. Rep.
366; 149 Iowa, 303 472
Short, C. L., Re: Op. Sol. Dep.
C. & L., p. 375 1022
Short v. Medberry, 29 Hun, 39 . . 1000
Simmons, Arnold, Re: Op. Sol.
Dep. C. & L., p. 343 1025
Simmons v. Faulds (1901), 3
W. C.C. 169 128
Simmons v. The Heath Laundry
Co. (1910), 102 L. T. R. 210;
3B. W. C. C. 200 738
Simmons v. White Bros. (1899),
80 L. T. 344; 1 W. C. C. 89 . . . 572
Simpson, H. G., Re: Op. Sol.
Dep. C. & L., p. 251 436
Simpson v. Ebbw-Vale Steel,
Iron & Coal Co. (1905), 92 L.
T. 282; 7 W. C. C. 101 107
Sims v. Omaha, K. C. & E. Ry.
Co., 89 Mo. App. 197 500
Sinclair v. Maritime Passengers.
TABLE OF CASES
lxxv
Volume 2 begins at page 1053
PAGE
Assur. Co., 30 L. J. Q. B. 77;
4L. T. 15 376
Sinclair v. Maritime Passengers
Ins. Co., 3 Ellis & Ellis,
476 370
Singer Mfg. Co. v. Rahn, 132
U. S. 518 109
Skailes v. Blue Anchor Line
(1910), 4 B. W. C. C. 16 736
Skates v. Jones & Co. (1910),
3B. W. C. C. 460 529
Skill, J. W., Re: Op. Sol. Dep.
C. & L., p. 121 994
Sloss-Sheffield Steel & Iron Co.
v. Bibb, 51 So. Rep. 345; 00
Ala. 000 129
Sloss-Sheffield Steel & Iron Co.
v. Moore, 59 So. Rep. 311; 000
Ala. App. 000 459
Small, David, Re: Op. Sol. Dep.
C.&L.,p. 128 992
Smith, G. H., Re: Op. Sol. Dep.
C. &L., p. 148 1002
Smith, William, Re: Op. Sol.
Dep. C. & L., pp. 307, 309 ... . 1018
Smith v. Coles (1905), 93 L. T.
754; 8 W. C. C. 116 142
Smith v. Cord Taton Colliery Co.
(1900), 2 W. C. C. 121 394
Smith v. Hughes (1905), 8 W. C.
C. 115 907
Smith v. Lancashire & Yorkshire
Ry. Co. (1899), 79 L. T. 633;
1W.C.C.1 460
Smith v. Massachusetts Em-
ployes Insurance Association,
Mass. Indus. Ace. Bd 603
Smith v. Morrison (1911), 5
B. W. C. C. 161 456
Smith v. Munger Laundry Co.,
Cal. Indus. Ace. Bd., Nov. 19,
1913 351
Smith v. South Normanton Col-
liery Co. (1902), 88 L. T. 5;
5 W. C. C. 14 405, 424
Smith v. Western & A. R. Co.,
PAGE
67 S. E. Rep. 818; 134 Georgia,
216 118
Sneddon and Others v. Green-
field and Coal Brick Co.
(1910), 47 Scotch L. R. 337; 3
B. W. C. C. 557 426
Snow v. Housatonic R. Co., 8
Allen (Mass.), 441 1007
Southall v. Cheshire County
News Co. (1912), 5 B. W. C. C.
251 385
Southern Coal & Coke Co. v.
Swinney, 42 So. Rep. 808; 00
Ala. 000. 431
Southern Railway Co. v. Bent-
ley, 56 So. Rep. 249; 1 Ala.
App. 359 478
Southern Ry. Co. v. Guyton, 25
So. Rep. 34; 122 Ala. 231 465, 469
Southern Ry. Co. in Kentucky
v. Pope's Adm'r, 119 S. W.
Rep. 237; 133 Ky. 835 500
Southern Ry. Co. v. West, 62
S. E. Rep. 141; 4 Ga. App.
672 409
Spence v. W. Baird & Co. (1912),
49 Sc. L. R. 278; 5 B. W. C. C.
542 390
Spiers v. Elderslie Steamship
Co. (1909), 46 Scotch L. R.
893; 2 B. W. C. C. 205 530
Spooner v. Detroit Saturday
Night Company, Michigan
Industrial Accident Board,
July, 1913 141
Spreckels Bros. Commercial Co.
v. Moore, Cal. Indus. Ace. Bd.,
Oct. 8, 1913 683
Spreckels Bros. Commercial Co.
v. Nelson, Cal. Indus. Ace.
Bd., June 24, 1913 591
Stagg v. Edward Western Tea
and Spice Co., 69 S. W. Rep.
391; 169 Mo. 489 457
Stallknecht v. Pennsylvania R.
R. Co., 13 Hun, 451 46
lxxvi
TABLE OF CASES
Volume 2 begins at page 1053
PAGE
Standing v. Eastwood & Co.
(1912), 5 B. W. C. C. 268. . . . 125
Stapleton v. Dinnington Main
Coal Co. (1912), 5 B. W. C. C.
602 352
Stark v. Port Blakely Mill Co.,
87 Pac. Rep. 339; 44 Wash.
309 # 471
State v. Babcock, 30 N. J. Law,
29 39
State v. Clausen, 65 Wash. 156;
117 Pac. Rep. 1101; Brad-
bury's Workmen's Compensa-
tion and State Ins. L. (1st
Ed.), p. 703; 3 N. C. C. A.
599 12, 29, 31
State ex rel. Yaple v. Creamer,
85 Ohio St. 349; 97 N. E. Rep.
602; Bradbury's Workmen's
Compensation and State Ins.
L. (1st Ed.), p. 764; 1 N. C.
C. A. 30 11, 29, 30, 31
Statham v. Galloways, Limited,
2W.C.C.149 500
Steel v. Cammell, Laird & Co.
(1905), 7 W. C. C. 9 340, 349* 373
Stegman, Richard, v. Harley-
Davidson Motor Co., Wis.
Indus. Com., Apr. 22, 1913. . . 676
Stephens v. Dudbridge Iron-
works Co. (1904), 6 W. C. C.
48 304
Sterling Laundry Company v.
Smith, Cal. Indus. Ace. Bd.,
Dec. 22, 1913 683
Stevens v. Insoles (1911), 5 B.
W.C. 164 767
Stevens v. Pacific Telephone and
Telegraph Co., California In-
dustrial Accident Board, Oct.
22, 1912 550
Stewart v. Wilsons & Clyde
Company (1903), 5 Falc. 120, 368
St. Louis & S. F. Ry. Co. v. Bag-
well, 124 Pac. Rep. 320; 33
Okla. 189 502
PAGE
Stodden v. Anderson & Winter
Mfg. Co., 116 N. W. Rep. 116;
138 Iowa, 398 466
Stoll v. Pacific Coast Steamship
Co., 205 Fed. 169; Market ,
World and Chronicle of N. Y.,
May 24, 1913; 3 N. C. C. A.
606, note 12, 29
Stone Vi Boscawen Mills, 52
Atl. Rep. 119; 71 N. H. 288. . . 473
Stone v. Travelers Insurance
Company, Mass. Indus. Ace.
Bd 371
Stone- Webster Engineering Cor-
poration v. Collins, 199 Fed.
Rep. 581 409
Strayer, H. C, Re: Op. Sol. Dep.
C.&L.,p.359 1021
Strong, Albert, Re: Op. Sol.
Dep. C. & L., p. 104 995
Stuart v. Nixon & Bruce (1901),
3W.C.C.1 743
Sturgeon, James, Re: Op. Sol.
Dep. C. & L., p. 535 1044
Sturgis v. Boyer, 24 How.
123 131
Sudell v. Blackburn Corporation
(1910), 3 B. W. C. C. 227 120
Suleman v. Owners of the "Ben
Lomond" (1909), 2 B. W. C.
C. 499 646
Sullivan, Jos. L., Re: Op. Sol.
Dep. C. & L., p. 492 1041
Sundine v. London Guarantee &
Accident Co., Mass. Indus.
Ace. Bd. (App. pending to the
Sup. Judicial Ct.) 423, 424
Superior Terminal Elevator Co.
v. F. A. Ball, Wis. Indus. Com.,
Feb. 24, 1913 670
Suttle v. Choctow, O. & G. Co.,
144 Fed. Rep. 668 1024
Sutton v. Wabash R. Co., 152
HI. App. 138 476
Swinbank v. Bell Bros. (1911),
5B.W.C.C.48 355
TABLE OF CASES
lxxvii
Volume 2 begins at page 1053
PAGE
Taff Vale Railway Co. v. Lane
(1910), 3 B. W. C. C. 297. . . . 916
Tamworth Colliery Co. v. Hall
(i911), 4 B. W. C. C. 313. . . . 744
Tanner, Jane, v. Milwaukee Gas
Light Co., Wis. Indus. Com.,
Feb. 19, 1912 639
Taylor, W. H., Re: Op. SoL Dep.
C.&L.,p.324 1030
Taylor v. Bolckow, Vaughan &
Co. (1911), 5 B. W. C. C. 130 390
Taylor v. George W. Bush &
Sons Co., 5 Pennywill, 378; 61
Atl.Rep.236 446
Taylor v. Grant Lumber Co.,
127 S. W. Rep. 962; 94 Ark.
566 464
Taylor v. Jones (1907), 1 B. W.
C. C. 3 427
Terlecki v. Strauss & Co. (Mer-
cer Common Pleas, May 9,
1913), 36 N. J. Law J. 185. . . . 422
Terre Haute & I. R. Co. v.
Fowler, 56 N. E. Rep. 228; 154
Ind. 682; 48 L. R. A. 531 475
Texas M. R. R. Co. v. Taylor,
44 S. W. Rep. 892; 00 Tex. Civ.
App. 000 463
Thaokway v. Connelly and Sons
(1909), 3 B. W. C. C. 37 798
Thennard, Joseph, Re: Op. Sol.
Dep. C. & L., p. 131 991
Therricault v. England, 116
Pac. R. 581 ; 43 Mont. 376 443
Thoburn v. Bedlington Coal Co.
(1911), 5 B. W. C.C. 128. .. . 393
Thomas v. Fairbairn, Lawson &
Co. (1911), 4 B. W. C. C.
195 651, 675
Thomas v. Wisconsin Central
Ry. Co., 122 N. W. Rep. 456;
108 Minn. 485 '. 444
Thompson, H. A., Re: Op. Sol.
Dep. C. & L., p. 418 1004
PAGE
Thompson, R. F., Re: Op. Sol.
Dep, C. & L., p. 303 1008
Thompson, Samuel, Re: Op. Sol.
Dep. C. & L. p. 129 992
Thompson v. Ashington Coal
Co. (1901), 3 W. C. C. 21.354, 355
Thompson v. Nautilus Steam-
ship Co., The Policyholder,
July 10, 1912, p. 553 515
Thompson v. R. W. Gould &
Co. (1910), A. C. 409; 103
L. T. 81; 3 B. W. C. C. 392. . . 795
Thompson v. Standard Oil Co.,
Cal. Indus. Ace. Bd., July 30,
1913 682
Thomson, W. B., Re: Op. Sol.
Dep. C. & L., pp. 360, 361 ... . 1018
Thomson v. Flemington Coal
Co. (1911), 48 Scotch L. R.
740; 4 B. W. C. C. 406 451
Thurber v. Harlem Bridge, etc.,
Rd., 60 N. Y. 326 1008
Tiernan, T. F., Re: Op. Sol. Dep.
C. &L., p. 367 1017
Timmins v. Leeds Forge Co.,
2W.C.C. 10 367
Timmins v. Leeds Forge Co.,
16 T. L. R. 521 368
Tinkle v. St. Louis & S. F. R.
Co., 110 S. W. Rep. 1086; 212
Mo. 445 118
Tischman v. Central R. R. Co.,
00 N. J. Law, 000; 87 Atl. Rep.
144 619
Toledo, B. G. & F. Ry. Co. v.
Pfisterer, 26 Ohio Cir. Ct. Rep.
669 471
Tomalin v. S. Pearson & Son
(1909), 100 L. T. 685; 2 B. W.
C. C. 1.... 35, 39
Tombs v. Bomford (1912), 5 B.
W. C. C. 338 137
Torregrosso v. Universal Caster
& Foundry Co., Essex Com-
mon Pleas, Sept. 20, 1912;
000 N. J. Law J. 000 618
lxxviii
TABLE OF CASES
Volume 2 begins at page 1053
PAGE
Torres, Ramon, Re: Op. Sol.
Dep. C. & L., pp. 325, 326. . ..1029
Torvalson v. Minneapolis, St.
Paul and Sault Ste. Marie R.
R. Co., Dec. 2, 1912 205
Trahey, G. W., Re: Op. Sol. Dep.
C. & L., p. 87 1000
Trammell, J. V., Re: £p. Sol.
Dep. C. & L., p. 206 344, 352
Traviso, Pedro, Re: Op. Sol.
Dep. C. &L., p. 124 992
Traynor v. Robert Addie & Sons
(1910), 48 Scotch L. R. 820;
4B. W. C. C. 357 497
Treiman, John, Re: Op. Sol.
Dep. C. & L., p. 166 342
Trodden v. J. McLennard &
Sons (1911), 4 B. W. C. C. 190 413
Truesdale v. Employers' Lia-
bility Assurance Corporation,
Mass. Indus. Ace. Bd \ 488
Tucker v. Buffalo Cotton Mills,
57 S. E. Rep. 626, 76 S. C. 539 116
Tucker v. Oldbury Urban Dis-
trict Council (1910), 5 B. W.
C. C..296 801
Turner v. Brooks & Toxey
(1909), 3 B. W. C. C. 22 383
Turner v. G. Bell and Sons
(1910), 4 B. W. C. C. 63 893
Turner v. Miller and Richards
(1910), 3 B.W. C. C. 305.... 575
Turner, Robert, Re: Op. Sol.
Dep. C. & L., p. 319 1010
Turner's, Limited, v. Whitefield, 571 •
Tutton v. Owners of Steamship
"Majestic" (1909), 100 L. T.
644, 2£. W. C. C. 346 928
U
Union Pacific Ry. Co. v. Mc-
Donald, 152 U. S. 262 1008
United Collieries v. Hendry
(1909), 101 L. T. 129; A. C.
(H. L.) 383; 2 B. W. C. C. 308 585
PAGE
United States Board & Paper
Co. v. Landers, 93 N. E. Rep.
232; 47 Ind. App. 315 109
United States Cement Co. v.
Koch, 85 N. E. Rep. 490; 42
Ind. App. 251 501
United States Mutual Accident
Ins. Ass'n v. Barry (1888),
131 U. S. 100 368
United States v. Bevans, 3
Wheat. 336; 3 Dall. 320 58
Upper Forest and Western Steel
and Tinplate Co. v. Thomas
(1909), 2 B. W. C. C. 414. . . . 904
Upper Forest and Western Steel
and Tinplate Co. v. Grey
(1910), 3 B. W. C. C. 424 648
Vamplew and Others v. Park-
gate Iron & Steel Co. (1903),
88 L. T. 756; 5 W. C. C. 114. . 128
Van Sittert, E. H., Re: Op. Sol.
Dep. C. & L., p. 72 998
Van Sittert, E. H., Re: Op. Sol.
Dep. C. & L., p. 132 991
Varesick v. British Columbia
Copper Co. (1906), 12 B. C.
286; 1 B. W. C. C. 446 582
Vassar v. Atlantic Coast Line R.
Co., 54 S. E. Rep. 849; 142
N. C. 68; 7 L. R. A. (N. S.) 950 117
Vaughan v. Booth, 13 Eng. L. &
Eq. 351, 354 136
Veseth, J. A., Re: Op. Sol. Dep.
C. &L. pi. 94 996
Veseth, J. A., Re: Op. Sol. Dep.
C. & L., p. 147 1002
Vickers Sons and Maxim v.
Evans (1910), 3 B. W. C. C.
403 915
Villafranca, Feliciano, Re: Op.
Sol. Dep. C. & L., p. 542 1048
Villafranca, Feliciano, Re: Op.
Sol. Dep. C. & L., p. 612 1048
TABLE OP CASES
lxxix
Volume 2 begins at page 1053
PAGE
Villanueva, Enrique, Re: Op.
Sol. Dep. C. & L., p. 615 1047
Villar v. Gilbey (1907), A. C. 139 580
Vincent v. Natomas Consoli-
dated of California, Cal. Indus.
Ace. Bd., Dec. 5, 1913 682
Voshefskey v. Hillside Coal &
Iron Co., 21 App. Div. 168;
47 Supp. 386 46, 47
Vulicas, Marcus, Re: Op. Sol.
Dep. C. & L., p. 45 999
W
Wagen v. Minneapolis & St.
L. R. Co., 82 N. W. Rep. 1107;
80 Minn. 92 117
Wagner, Charles, Re: Op. Sol.
Dep. C. & L., p. 532 1048
Waiswell v. General Accident
Assur. Corp., Mass. Indus.
Ace. Bd 372
Waite v. Oakland California
Towel Co., Cal. Indus. Ace.
Bd., Oct. 10, 1913 591
Waites v. Franco-British Ex-
hibition (Incorporated) (1909),
2B. W. C. C. 199 528
Wakefield v. State, 41 Texas,
556 135
Walker v. Crystal Palace Foot-
ball Club (1909), 101 L. T.
645; 3 B. W. C. C. 53 107
Walker v. Hockney Brothers
(1909), 2 B. W. C. C. 20. . .340, 352
Walker v. Lilleshall Coal Co.
(1900), 81 L. T. 769; 2 W. C. C.
7 356
Walker v. Mullins (1908), 42
Irish L. T. 168; 1 B. W. C. C.
211 354
Walker v. Murrays (1911), 48
Sc. L. R. 741; 4 B. W. C. C.
409 368
Walsh, J. J., Re: Op. Sol. Dep.
C.&L.,p. 193 375
PAGE
Walsh v. Hayes (1909), 43
Irish L. T. 114; 2 B. W. C. C.
202 531
Walters v. Staveley Coal & Iron
Co. (1911), 105 L. T. 119; 4
B. W. C. C. 303 405, 433
Walton, Re : 35 N. J. Law J. 184 758
Walton v. South Kirby 920
Warby v. Plaistowe & Co.
(1910), 4 B. W. C. C. 67 926
Ward v. Chicago, St. P., M. &
O. Ry. Co., 85 Wise. 601. . . .1013
Ward v. London and North West-
ern Ry Co. (1901), 3 W. C. C.
192 674
Ward v. Miles (1911), 4 B. W. .
C. C. 182 674
Warncken v. Richard More-
land & Son (1908), 100 L. T.
12; 2 B. W. C. C. 350. . . .927, 928
Warner v. Couchman (1911),
■ 5 B. W. C. C. 177; aff'g 4
B. W. C. C. 32 377,379
Warner v. Couchman (1912),
A. C. 35 402
Warwick Steamship Co. v. Cal-
laghan (1912), 5 B. W. C. C.
283 918
Washington, N. C, Re: Op. Sol.
Dep. C. &L., p. 143 1002
Waterhouse v. State, 21 Tex.
App. 663; 2 S. W. Rep. 889. . 135
Watkins v. Guest, Keen &
Nettlefolds (1912), 5 B. W.
C. C. 307 410
Watson, T. H., Re: Op. Sol. Dep.
C. & L., p. 596 1047
Watson v. Butterley Co. (1902),
5 W. C. C. 51 487
Watson v. Sherwood (1909),
2B. W. C. C. 462 436
Webber v. Kales Haskel Co.,
Dec. of Mich. Arbitration
Committee, Dec. 19, 1912.. 657
Weigand, C. A., Re: Op. Sol.
Dep. C. & L., p. 317 1009
lxxx
TABLE OF CASES
Volume 2 begins at page 1053
PAGE
Weighill v. South Heaton Coal
Co., (1911), 4 B. W. C. C. 141 485
Weil, P. C, Re; Op. Sol. Dep.
C. & L., p. 543 366
Welch v. Ellis, 15 Can. L. T.
148 1000
Wells, O. P., Re: Op. Sol. Dep.
C. & L., p. 421 1003
Wells v. Cardiff Steam Coal
Collieries Co. (1909), 3 B. W.
C. C. 104 803
Wells v. Kentucky Distilleries
& Warehouse Co., 138 S. W.
Rep. 278; 144 Ky. 438 116
Welsh v. Employers' Liability
•Assurance Corporation, Mass.
Indus. Ace. Bd 366
Wentworth v. Pacific-Wakefield
Co., Cal. Indus. Ace. Bd.,
Feb. 24, 1913 589
Weston v. Crown Columbia
Paper Co., Cal. Indus. Ace.
Bd., Dec. 3, 1913 506
Westover v. Hoover, 129 N. W.
Rep. 285; 88 Nebr. 201 110
Whatley v. Zenida Coal Co.,
26 So. Rep. 124; 122 Ala.
118 423,424
Wharton, William, Re: Op. Sol.
Dep. C. & L., p. 250 508
Wheeler, Ridley & Co. v. Daw-
son (1912), 5 B. W. C. C. 645 395
Whelan v. Great Northern Steam
Fishing Co. (1909), 100 L. T.
912; 2 B. W. C. C. 235 123
Whelan v. Moore (1909), 43
Irish L. T. 205; 2 B. W. C. C.
114 504
Whitbread v. Arnold (1908), 99
L. T. 103; 1 B. W. C. C. 317. . 407
White v. Sheepwash (1910),
3 B. W. C. C. 382 356
White v. Wiseman (1912), 5
B. W. C. C. 654 742
White, W. and Sons, v. Harris
(1910), 4 B. W. C. C. 39. . . . 649
PAGE
Whitecraft v. Pennsylvania R. R.
Co., Camden Common Pleas
(May 9, 1913), 36 N. J. Law
J. 182 178
Whitehead v. Reader (1901),
3 W. C. C. 40 494
Whitehead v. Reader (1901),
2 K. B. 48.... 498
Whiteley Malleable Castings
Co. v. Wishon, 85 N. E.
Rep. 832; 000 Ind. App.
000 457
Whiteman, P. M., Re: Op. Sol.
Dep. C. & L., p. 66 1000
Whitford v. Panama R. R. Co.,
23 N. Y. 465 46, 57, 58, 59
Whitton v. South Carolina &
G. R. Co., 32 S. E. Rep. 857;
106 Ga. 796 465
Wicks v. Dowell & Co., 2 K. B.
225 361
Wilken, Carl, v. Superior Steve-
dore Co., Wis. Indus. Com . . 652
Wilkes, Andrew, Re: Op. Sol.
Dep.C.&L.175 352
Wilkes (or Wicks) v. Dowell &
Co. (1905), 2 K. B. 225; 7
W. C. C. 14 361
Wilkie v. Thomas Forman Co.,
Mich. Indus. Ace. Bd., Oct.
15, 1913; The Indicator, Oct.
20, 1913, at p. 417 515
Williamette Falls Transp. Co.
v. Remick, 1 Oreg. 169 1000
Williams, E. R., Re: Op. Sol.
Dep. C. & L., p. 70 998
Williams, Frances R., Re: Claim
No. 296, Ohio St. Lia. Bd.
Awd., Nov. 15, 1912 624, 760
Williams, Francis, Re: Op. Sol.
Dep. C. & L., p. 372 1022
Williams v. Choctaw, O. & G. R.
Co., 149 Fed. Rep. 104....1028
Williams v. Duncan (1898) 1
W. C. C. 123 340,373
Williams v. Kansas City, S. & G.
TABLE OF CASES
lxxxi
Volume 2 begins at page 1053
PAGE
Ry. Co., 45 So. Rep. 924; 120
La. 870 113
Williams v. Ocean Coal Co.
(1907), 97 L. T. 150; 9 W. C.
C. 44 568, 570, 580
Williams v. Wigan Coal & Iron
Co. (1909), 3 B. W. C. C.
65 462
Williams v. Wynnstay Collieries
(1910), 3 B. W. C. C. 473. . . . 733
Williams v. State, 41 Texas, 649 135
Williams v. Vauxhall Colliery
Co. (1907), 23 T. L. R. 591;
9W.C.C. 120 567
Williamson v. Berlin Mills Co.,
190 Fed. Rep. 1 494
Williamson v. Standard Oil Co.,
Cal. Indus. Ace. Bd., June 26,
1913 680
Willoughby v. Great Western
Ry. Co. (1904), 6 W. C. C. 28 . 385
Wilson v. Banner Lumber Co.,
32 So. Rep. 460; 108 La. 590 412
Wilson v. Chesapeake & Ohio
Ry. Co., 113 S. W. Rep. 101;
130 Ky. 182 449
Wilson v. Laing (1909), 46 Scotch
L. R. 843; 2 B. W. C. C. 118. . 512
Windfelder, Frank A., v. City
of Milwaukee, Wis. Indus.
Com., December 21, 1911 ... . 640
Winn v. Cabot, 18 Pick. (Mass.)
553; Wheeler v. Randall, 6
Mete. (Mass.) 529; Common-
wealth v. Carmalt, 2 Binn.
(Perm.) 235 142
Winnicott v. Orman, 102 Pac.
Rep. 570; 39 Montana, 339. . 129
Wise v. Lillie & Sugar Appara-
tus Mfg. Co., 113 Pac. R.
403; 84 Kans. 86 110
Wite, J. S. K., Re: Op. Sol. Dep.
C.&L.,p.l83 388
Wolfe v. Mosler Safe Co., 139
App. Div. 848; 124 Supp.
541 Ill
PAGE
Wood, James, Re: Op. Sol. Dep.
C. & L., p. 349 1025
Wood v. Cobb, 3 Allen, 58 109
Wooden v. Western N. Y., etc.,
R. Co., 126 N. Y. 10 60
Wordsworth v. Dunnam, 98 Ala.,
610 1013
Worthington, George, Re: Op.
Sol. Dep. C. & L., p. 98 995
Wright v. Kerrigan (1911), 45
Irish L. T. 82; 4 B. W. C. C.
432 799,801
Wright v. Lindsay (1911), 49
Sc. L. R. 210; 5 B. W. C. C. 531 805
Wright v. Scott (1912), 5 B. W.
C. C. 431 499
Wygant, G. W., Re: Op. Sol.
Dep. C. & L., p. 90 996
Wyman v. Berry, 75 Atl. Rep.
123; 106 Me. 43 110
Yates v. South Kirby Feather-
stone & Hemsworth Collieries
(1910), 103 L. T. 170; 3 B. W.
C. C. 418 380,381
Yazoo & M. V. R. Co. v. Kern,
138 S. W. Rep. 988; 000 Ark.
000 459
Yazoo & M. V. R. Co. v. Slaugh-
ter, 45 So. Rep. 873; 92 Miss.
289 116
Yazoo & M. V. R. Co. v. Stans-
berry, 53 So. Rep. 389; 97
Miss. 831 117
Yenne v. Standard Oil Co.,
Cal. Indus. Ace. Bd., July
28, 1913 387
Yohe v. Erie R. Co. (Hudson
Common Pleas, March 31,
1913), 36 N. J. Law J. 154. . . 619
Yongue v. St. Louis & S. F. R.
Co., 112 S. W. Rep. 985;
133 Mo. App. 141 501
Young v. Northern California
lxxxii
TABLE OP CASES
Volume 2 begins at page 1053
PAGE
Power Co., Cal. Indus. Ace.
Bd., June 2, 1913 380
Ystradowen Colliery Co. v.
Griffiths (1909), 100 L. T. 869;
2 B. W. C. C. 357 386
Z
Zacias, L. T., Re: Op. Sol. Dep.
C. &L., p. 44 999
PAGE
Zeikus v. Florida East Coast Ry.
Co., 153 App. Div. 345; 138
Supp. 478 60
Ziemer v. Crucible Steel Co.,
99 App. Div. 169; 90 Supp.
962 47
Zupa, John, Re: Op. Sol. Dep.
C. & L., p. 479 1039
BRADBURY'S
WORKMEN'S COMPENSATION AND
STATE INSURANCE LAW
SECOND EDITION
CHAPTER I
INTRODUCTION
ARTICLE A — Synopsis of sation acts in the
the Development of the United States 9
Compensation Principle. . 1 7. Elective laws and the
1. Economic principles in- constitutional ques-
volved 1 tion involved 11
2. Origin and nature of 8. Brief review of the
the so-called common- american laws thus
law defenses 3 far passed 21
3. Changes wrought by ARTICLE B — Two Fun-
workmen's compensa- damental Problems Es-
tion laws 6 pecially important in
4. Exceptional cases in America 34
which compensation 1. Extra-territorial effect
is denied 6 0F compensation laws 34
5. The British and German 2. Actuarial principles un-
compensation acts 7 derlying state insur-
6. Efforts to pass compen- ance laws 63
ARTICLE A— SYNOPSIS OF THE DEVELOPMENT OF THE
COMPENSATION PRINCIPLE
1. Economic principles involved.
It is difficult for American lawyers to reconcile themselves
to the fundamental changes which workmen's compensation
1 1
2 bbadbuby's workmen's compensation law
Economic principles involved
laws accomplish in the principles underlying doctrines with
which they have long been familiar. The declaration that
an employer shall be responsible for injuries to his workmen,
whether or not the master is at fault, has, until very recently,
in most parts of the United States, met with almost in-
stant opposition whenever it has been made. Neverthe-
less, the compensation principle, when carefully analyzed,
undoubtedly rests on sound economic, legal and moral
foundations. Testimony from foreign countries and a
rapidly increasing fund of evidence from many of the States
in the Union, prove that it is not taking the employer's
property without due process of law to compel him to
pay compensation to an injured workman, when the in-
jury is due to a risk which is necessarily incident to the
business. An assertion to the contrary is an economic
fallacy. The amount paid in compensation to injured work-
men will be added to the cost of the article produced and
in the readjustment, which is inevitable, the expense will be
borne by the community generally. All experience proves
this beyond question. It is believed by those who have given
the most careful thought to the subject that this expense or
burden on the community will be less, in the long run, when
the compensation principle is put in operation, than it is at
present, when inadequate provision is made, through public
and private charity, for taking care of the injured workmen
and the dependents of those who are killed. That the
widows and young children of the workmen who are killed
frequently are dependents upon the community there is no
denying. The same is true, of course, as to the families of
workmen who are seriously injured, and sometimes to a
greater degree than if the workman had been killed. It is
often more difficult for the family to get along while the
father is seriously injured and requires medical and other
attention, than it would be had the father been killed. The
children who are left with a mother not able to care for them
not infrequently grow up in bad surroundings and a good
INTRODUCTION
Origin and nature of the so-called common-law defenses
many of them, a little later on, help to make bad surroundings
for other children in the same situation. This condition of
affairs is an expense to the community, not only directly
but indirectly. Moreover, equitable compensation laws
tend, to a very great extent, to make workmen more con-
tented than they otherwise would be, with the knowledge
that in any event they will not have to meet starvation for
themselves and their families should they be the victims of
one of the number of inevitable industrial accidents. This
is an important factor in the efforts to secure the greatest
industrial efficiency.
2. Origin and nature of the so-called common-law de-
fenses.
The doctrines of assumption of risk, contributory negli-
gence and negligence of fellow servant have played an im-
portant part in English and American law. Up to a very
recent time the rule had long been established that a work-
man assumed all the risks which were necessarily incident
to his employment and also all the risks which were obvious
and concerning which he had actual information, or should
have had knowledge by reason of the fact that they were
open and obvious. This doctrine of assumption of risk was
carried to the extent that even though the employer was
negligent and failed in many respects to perform his duty
in safeguarding his workmen, nevertheless if an employe
continued to work after these risks, due to the negligence of
the employer, had become obvious and well known to the
workman, he assumed such risk and could not recover if
he was injured by reason of any of the dangers thus assumed.
The doctrine of assumption of risk has received much
legislative attention, irrespective of the workmen's compen-
sation statutes. It has been modified, from time to time,
by the courts. Probably the most radical judicial modifica-
tion of recent times is to be found in the case of Fitzwater v.
Warren, 206 N. Y. 355. The Court of Appeals squarely
4 Bradbury's workmen's compensation law
Origin and nature of the so-called common-law defenses
overruled the leading case of Knisley v. Pratt, 148 N. Y.
372, and held, in effect, that an employe" could not be held
to have assumed the risks of his employment in relation
to an injury which was caused by an employer's violation
of a statutory safety regulation.
It has also been the rule, even when the employer was
negligent, that if^it could be demonstrated that the negli-
gence of the employe contributed in any manner to the in-
jury of which complaint was made, then the employer was
discharged completely and the employe was entirely without
remedy. This rule also has been modified by statutes other
than workmen's compensation acts. The rule of "compara-
tive negligence" and the doctrine of the "last clear chance"
have been adopted in some jurisdictions. The rule of contrib-
utory negligence in one form or another is still in force, how-
ever, in most of the jurisdictions where compensation laws
have not been adopted.
The fellow-servant doctrine dates from 1837, when it
was established in England in the case of Priestley v. Fowler,
3 M. & W. 1. In that case two butcher boys were on a
wagon, being employed by the same master. One of them
was injured by reason of the negligence of the other. The
court decided that in such a case the master was not liable.
The principle thus established was the germ from which the
entire law, known generally as the fellow-servant doctrine,
was developed. Five years later, in 1842, Chief Justice Shaw
of Massachusetts, in the case of Farwell v. Boston, etc., R. Co.,
4 Met. 49, followed the doctrine announced in the earlier
English case. The same rule was subsequently promulgated
and settled in the House of Lords in England in 1858, in the
case of Bartonshill Coal Co. v. Reid, 3 Marq. H. L. Cas. 266.
The same doctrine was thereafter followed by the courts of
the various States of the Union.
In England the doctrine was applied with great rigor.
Employes of all grades of employment were held to be fellow
servants with those in practically every other grade. Or-
INTRODUCTION
Origin and nature of the so-called common-law defenses
dinary seamen were held to be fellow servants of the captain.
Hedley v. Pinkney & Sons S. S. Co., 1 Q. B. 58; 61 L. J. Q. B.
179. General superintendents and general managers were
held to be fellow servants of laborers. Conway v. Belfast &
Northern R. R. Co., 11 Ir. L. R. 345.
In this country the fellow^servant doctrine was not applied
uniformly. In somewhat early cases the alter ego principle
was applied by the courts. That is, if the master should
employ a superintendent who, in the absence of the master,
was clothed with essentially the same power and discretion
which the master could exercise while present, he was held
to be the alter ego of the master and not a fellow servant of
the master's other employes. The master, therefore, was
liable for the negligent acts of this alter ego. The vice-
principal doctrine was another modification of the fellow-
servant rule. This and other rules were greatly modified
from time to time by statute in the various States, as well as
by the National Legislature. The result was such a con-
fusion that it would be impossible to deduce general rules of
anything like universal application from the conflicting
statutes and decisions of the courts of forty-eight States, the
acts of Congress and the decisions of the Federal tribunals.
On the question of the burden of proof there was also much
confusion. Some of the States required the employe to prove
by a fair preponderance of evidence, every fact upon which
his cause of action depended. He must prove that his master
was negligent; that he, the employe, was free from contrib-
utory negligence; and that the injury was due exclusively
to the negligence of the master.
On the question of the defense of the assumption of risk
and that the injury was due to the negligence of a fellow
servant, varying rules as to the burden of proof have been
announced in the different jurisdictions. If, however, there
is any general rule which has for its support more than a
majority of the cases, it doubtless is that assumption of
risk and negligence of fellow servant are defenses which must
6 bradbury's workmen's compensation law
Exceptional cases in which compensation is denied
be proved affirmatively by the master. On the question of
contributory negligence, however, the original rule, in most
jurisdictions, was that the employe must show that he was
himself free from fault. This rule was changed in many
jurisdictions at an early date and doubtless the general,
although not the universal, rule is now that contributory
negligence is an ajfirmative defense, which must be pleaded
and proved by the master.
3. Changes wrought by workmen's compensation laws.
The compensation acts abolished all these burdens of
proof by starting with the assumption, in all cases, that
neither party was guilty of negligence and that the injury
was the inevitable result of the occupation in which the em-
ploye" was engaged. This being so, the law placed the burden
on the employer of compensating injured workmen, or the
dependents of those who were killed, according to a specific
schedule of benefits, depending, as a rule, upon the amount
which the workman was earning at the time of the injury.
To this amount has been added, in certain instances, allow-
ances for medical and surgical attention and funeral benefits.
None of the American compensation acts cover all em-
ployes. Probably the New Jersey statute is the broadest of
any in this respect. It covers all except casual employes.
Some of them include only the so-called extra-hazardous
trades, while others exclude merely farm laborers and do-
mestic servants.
4. Exceptional cases in which compensation is denied.
Certain exceptions have been made in these laws, pro-
viding that under particular circumstances compensation
shall not be paid. These exceptions are, generally, that
if the accident is due to the wilful act and, in some cases,
to the intoxication of the employe, that then all compensa-
tion is denied. There is an infinite variety of statutes on this
subject. The British statute is remarkably liberal to the
workmen in this respect. It provided that if the injury is
intkA
DUCTION
The British and German Compensation Acts
due to the "serious and wilful misconduct" of the employe
that compensation shall not be paid unless the injury results
in the death or "serious and permanent disablement" of
the workman. This provision has been attacked very
bitterly, but still remains a part of the British Compensation
Act. It is the law of England, at the present time, that
should a workman in a powder factory, for example, be
instructed not to smoke or light a match within the works
and this workman should become intoxicated, go into the
works, strike a match to light his pipe, and then throw the
match where it would cause an explosion, and the explosion
should kill the workman together with the employer, the
dependents of the workman would still have a claim for
compensation against the estate of the employer. None of
the acts of the American States have gone this far. The
provision in some of them is that if the workman is guilty
of serious and wilful misconduct he shall not have compen-
sation, but the general provision is that compensation shall
be denied only when the injury is due to the wilful intention
of the workman to injure himself.
5. The British and German Compensation Acts.
The British Compensation Act was not adopted without
a struggle. Efforts were made on several occasions to pass
such a statute, and they all failed, until 1897, when the first
compensation act was passed by the British Parliament.
This act was amended several times, notably in 1900, and
again in 1906, after a thorough discussion and the considera-
tion of the report of a committee appointed to investigate
the subject.
In Germany the first compensation law was enacted on
July 6, 1884. This has been amended and extended from
time to time until the year 1911 when all the provisions of
the various acts were unified and codified 1 into an act which
1 The entire Code with an introduction and explanatory notes will be
found in another part of this work.
8 bradbury's workmen's compensation law
The British and German Compensation Acts
was intended to take effect January 1, 1912. Owing to the
administrative changes, involved in the consolidation of the
various parts of the social insurance laws, the actual taking ef-
fect of the Code of July 6, 1911, was postponed to January 1,
1913. Compensation acts of one sort or another have been
passed in practically all the European countries.
The German plan is considerably different from that of
England and also is unlike the system adopted in any of the
American States. In Germany the compensation laws are
divided into three general divisions: They are the Sickness
Insurance, the Accident Insurance, and the Disability In-
surance. Contributions by the workmen themselves play
an important part in the system. For example, for the first
thirteen weeks of either sickness, or disability caused by
accident, the workmen are cared for by what is known as the
Sickness Fund, which is supported by the workmen con-
tributing two-thirds and the employers one-third. As to all
disability which lasts more than thirteen weeks the Accident
Fund becomes responsible. The Disability Insurance takes
care of superannuated workmen and covers other forms
of disability which are not provided for in the other sub-
divisions of the statute. Workmen contribute one-half of
the money necessary to support the Disability Fund.
All these insurance funds are managed by officers elected
by workmen and employers. The Accident Fund is sup-
ported entirely by contributions from the employers and is
managed by them.
The German law requires all employers to join the Acci-
dent Insurance Fund of the trade in which he is engaged as
a condition to his engaging in the trade. There is Govern-
ment supervision of the entire system.
In England the liability is purely a personal one on the
employers, who usually carry the risk either by insuring
in stock liability companies or in mutual associations.1
1 See the full text of the British Act in a subsequent portion of this
work.
INTRODUCTION
Efforts to pass compensation acts in the United States
6. Efforts to pass compensation acts in the United States.
In the United States a compensation act relating to miners
only was passed in Maryland in 1902. It was declared to be
unconstitutional by the lower courts of Maryland, from the
decision of which no appeal was ever taken. The decision
is not reported.
A compensation act was also passed in Montana in 1909,
applying to miners only, and this was likewise declared to
be unconstitutional a short time after it became effective
by its terms. Cunningham v. Northwestern Improvement Co.,
44 Mont. 108; 119 Pac. 554. The decision of the Montana
court was on very narrow grounds. Many of the principles
underlying compensation statutes were sustained in the
opinion handed down by the court. The statute was held
to be unconstitutional solely on the ground that it permitted
employes to elect, after an accident happened, whether
they would claim compensation under the act or sue for
damages under the common law as modified by statutes
other than the compensation law.
Congress passed a compensation act 1 in .1908 applicable
to certain specified employes of the United States Govern-
ment. (Act of May 30, 1908.) This has been extended from
time to time to cover other employes but is not yet universal
in its application. (Acts of March 4, 1911, and March 11,
1912.)
New York passed a compulsory compensation act in
1910, which law was made Article 14a, of the Labor Law,
being Chapter 674 of the Laws of 1910. This was a compul-
sory workmen's compensation act applying to certain dan-
gerous employments. This law was declared to be uncon-
stitutional by the Court of Appeals in January, 1911, in the
case of Ives v. South Buffalo Railway Co., 201 N. Y. 271; 94
N. E. Rep. 431. The particular point of that decision was
that a law which imposed upon an employer who had not
1 The Federal Compensation Act with many notes of Departmental
decisions will be found in another portion of this work.
10 Bradbury's workmen's compensation law
Efforts to pass compensation acts in the United States
been guilty of any fault, the obligation to pay compensation
for injuries occurring by reason of a danger which was in-
herent in and inseparable from a particular employment,
resulted in the taking of property without due process of law
under the Fourteenth Amendment to the Federal Constitu-
tion and under § 6, Article I, of the State Constitution.1
In the same year that the compulsory law, which was held
to be unconstitutional, was passed, the Legislature of New
York also adopted an elective compensation law. (L. 1910,
c. 354; Labor Law, §§ 205-212.) This act has been a dead
letter.
After the decision in the Ives case the New York Legis-
lature passed a constitutional amendment permitting the
enactment of a compulsory law and the amendment was
adopted by vote of the people at the election in 1913. In
the same year the Legislature, which was then convened in
Special Session, passed the Act found in other portions of this
work.
Undoubtedly the Ives case had a profound effect on all
subsequent legislation in the United States on this subject.
It did not, however, have the effect of entirely stopping
the efforts to secure such legislation. New Jersey was the
first to hit upon a plan of adopting an elective or optional
workmen's compensation law. That is, employers were
permitted to elect whether they would accept the principles
of the compensation act and agree to pay their workmen the
schedule of compensation provided in the law in all instances
where they were injured or killed, or would elect to stand on
their common-law rights, in which latter event the law pro-
vided that all the common-law defenses of assumption of
risk, contributory negligence and negligence of fellow servant
should be denied to the employer. Other States followed
rapidly in the footsteps of New Jersey until, at the present
writing, there are compensation laws of various kinds in Ari-
1 See a discussion of the constitutional question, post, page 11.
INTKODUCTION 11
"Elective" laws and constitutional question involved
zona, California, Connecticut, Illinois, Iowa, Kansas, Mary-
land, Massachusetts, Michigan, Minnesota, Nebraska,
Nevada, New Hampshire, New Jersey, New York, Ohio,
Oregon, Rhode Island, Texas, Washington, West Virginia
and Wisconsin, and in various other States the matter is
under consideration.
7. " Elective " laws and the constitutional question in-
volved.
There is an important distinction between the New Jersey
law and those of many of the other States, as to the man-
ner in which the election is made. In New Jersey and some
other States employers and employes are presumed to have
elected to have adopted the compensation principle, unless
they take some affirmative action indicating a contrary inten-
tion. In other commonwealths employers must take some
affirmative action in order to adopt the compensation
principle. The distinction is important so far as the prac-
tical operation of the acts is concerned. There is a con-
stitutional question involved also. The United States
Supreme Court has not yet passed upon the constitutional-
ity of any of the workmen's compensation acts of the various
States. Statutes which are elective in form, but under which
the election must be indicated by an affirmative act on the
part of the employer, have been sustained by the courts of
last resort of Massachusetts,1 Ohio 2 and Wisconsin.3 The
New Jersey act which contains the presumptive election
1 Opinions of Justices, 209 Mass. 607; 96 N. E. Rep. 308; Bradbury's
Workmen's Compensation and State Ins. L. (1st Ed.), p. 650; 1 N. C. C.
A. 557. This decision was made in advance of the enactment of the law
under a provision of the Massachusetts Constitution, which permits the
Legislature to ask the advice of the court as to whether or not a proposed
law is constitutional.
2 State ex rel. Yaple v. Creamer, 85 Ohio St. 349; 97 N. E. Rep. 602;
Bradbury's Workmen's Compensation and State Ins. L. (1st Ed.), p. 764;
1 N. C. C. A. 30.
'Borgnis v. Folk Co., 147 Wis. 327; 133 N. W. Rep. 209; Bradbury's
12 beadbury's workmen's compensation law
"Elective" laws and constitutional question involved
feature, has been sustained by the Supreme Court 1 of that
State, which is a court of intermediate appellate jurisdiction,
and the case is now on appeal to the Court of Errors and
Appeals, which is the court of last resort of that State. In
the State of Washington a compulsory State insurance law,
which is applicable to certain hazardous industries, has been
sustained by the court of last resort of that State,2 and by the
United States District Court.3 The question of the consti-
tutionality of the New Jersey act has been discussed in two
New York cases.4
Opinions have differed among lawyers who have given
close study to the question, whether there is any real distinc-
tion, from a constitutional point of view, between a presump-
tive election and one in which the election is indicated by an
affirmative act. If the presumption was absolutely conclu-
sive, without any possible escape, undoubtedly such a pro-
vision would be invalid, assuming of course that the legis-
lature has not the power to pass a compulsory compensation
act. But in the statutes containing the presumptive feature,
such as New Jersey for example, the employer can destroy
the presumption by simply filing a notice to that effect with
the proper authorities. Such a presumption is one with
which we are entirely familiar. The right to a trial by jury
is absolute, in actions at law as distinguished from suits in
equity, except in a very limited class of cases. We see this
Workmen's Compensation and State Ins. L. (1st Ed.), p. 656; 3 N. C. C.
A. 649.
1 Sexton v. Newark District Telegraph Co., N. J. Law, ; 2 Brad-
bury's PI. and Pr. Rep. 221 ; 3 N. C. C. A. 569; 86 Atl. Rep. 451.
2 State v. Clausen, 65 Wash. 156; 117 Pac. Rep. 1101; Bradbury's Work-
men's Compensation and State Ins. L. (1st Ed.), p. 703; 3 N. C. C. A.
599.
3 Stoll v. Pacific Coast Steamship Co., 205 Fed. 169; Market World and
Chronicle of N. Y., May 24, 1913; 3 N. C. C. A. 606, note.
4 Albanese v. Stewart, 2 Bradbury's PL and Pr. Rep. 189; Pensabene v.
Auditore Co., 2 Bradbury's PL and Pr. Rep. 197; same case on appeal to
Appellate Division, 2 Bradbury's PL & Pr. Rep. 212.
INTRODUCTION 13
"Elective" laws and constitutional question involved
right waived by presumption hundreds of times every day in
Municipal Courts in New York City, in the courts of Justices
of the Peace throughout the other portions of that State, and
in many other tribunals throughout the country. The par-
ties to an action in these courts usually are conclusively pre-
sumed to have waived the right to a trial by jury unless they
take some affirmative action before the case has progressed
beyond a certain point.
Many other important rights may be waived, presump-
tively, by inaction. It has been urged, therefore, with a
good deal of force that the manner of making the election —
whether by affirmative action or by inaction — is of very
little importance from a constitutional standpoint. Those
who have urged that the election should be made by an
affirmative act, have taken the position that there could be
no doubt of the binding effect of an election by an employer
to adopt the compensation principle, when this election was
indicated by an affirmative act on the part of one who was
free to do as he might choose. Those who use this argument,
however, entirely neglect to take into consideration the
fundamental moving cause of any such election. Further-
more, with somewhat refreshing inconsistency, they proceed
to make the election on the part of the workmen a presump-
tive one, even in those statutes under which the employer
must indicate his election to adopt the compensation prin-
ciple by some affirmative action.
Undoubtedly, if the presumptive election as applied to
employers would make a compensation law unconstitutional,
the statute would be just as invalid should this principle
be applied to employes alone. If, therefore, there is any
constitutional point in the distinction between a presumptive
and an affirmative election it applies with full force to those
statutes where the election of the employe" is presumed even
though the employer must indicate his election by an affirm-
ative act.1
1 The rule of presumptive election when applied to both employers and
14 bradbury's workmen's compensation" law
"Elective" laws and constitutional question involved
But as indicated in the foregoing it is not believed that
there is any real distinction. The important and funda-
mental point for consideration is the right of the legislature
to put in force that portion of the statute which compels
or induces the employer to elect to adopt the compensation
principle at all. This compulsion or inducement is plainly
an expedient to a^void the effect of the decision of the Court
of Appeals in the Ives case. The legal point involved as to
the validity generally of the elective compensation acts is
contained in this one question: May the Legislature entirely
abolish the defenses of assumption of risk, contributory negli-
gence and negligence of fellow servant? If it has power to do
employes has at least the virtue of uniformity. Doubtless, therefore,
such a rule would be easier to support, on constitutional grounds, than one
which requires employers to take some affirmative action to indicate their
election to adopt the compensation principle while the rule of presumptive
election is invoked against employes alone. The most important con-
sideration, from a practical standpoint, however, is the fact that under
the presumptive rule the careless employer and the one who, in a state of
mental doubt, does nothing, will both be brought under the compensation
principle, while under the contrary rule they would still remain under the
common law. This is especially true as to small employers. The accuracy
of this prediction is amply demonstrated by the experience in New Jersey
and other States. The compensation act of New Jersey applies to all
except casual employes, including farm laborers and domestic servants.
Notwithstanding this fact and in spite of the further fact that the law has
been in operation longer than any other compensation statute in the
United States, except the Federal act applying solely to certain Govern-
ment employes, nevertheless only four employers in New Jersey have
ever filed a notice of rejection of the compensation principle. This is
considerably better than the record of any other State. In Massachusetts
a very large majority of the employers have adopted compensation, and
this is true also in Michigan, but in no other State can the record compare
with that of New Jersey, in so far as the percentage of employers who
have adopted the compensation principle is in proportion to all the em-
ployers of the State is concerned.
The Wisconsin law as first adopted required the employer to take some
affirmative step to adopt the compensation principle. The Legislature
saw the advantages of a presumptive election and by an amendment in
1913 the presumptive feature was adopted.
INTRODUCTION" 15
"Elective" laws and constitutional question involved
this, it would seem, without doubt, to have the power to
make the abolition conditional upon the employer adopting
the compensation principle.
The Court of Appeals in the Ives case undoubtedly placed
a limitation on the power of the Legislature to abolish one
of these defenses. The court held that so far as the de-
fenses based on "contributory negligence" and the so-called
"fellow-servant doctrine" were concerned, they could be
destroyed entirely by the courts as they were of judicial
origin. As to the assumption-of-risk doctrine the court
made a reservation, around which the whole question re-
volves. In the course of his opinion Judge Werner, writing
for the court, said:
"We have said enough to show that the statutory modifi-
cations of the 'fellow-servant' rule and the law of 'contrib-
utory negligence' are clearly within the legislative power.
These doctrines, for they are nothing more, may be regulated
or even abolished. This is true to a limited extent as to the
assumption or risk by the employed In the Labor Law and
the Employers' Liability Act, which define the risks assumed
by the employe, there are many provisions which cast upon
the employer a great variety of duties and burdens unknown
to the common law. These can doubtless be still further
multiplied and extended to the point where they deprive the
employer of rights guaranteed to him by our constitutions, and
there, of course, they must stop, as we shall endeavor to demon-
strate later on."
Many careful readings of the decision in this case have
failed to disclose that the Court drew any clear line of
demarcation as to where the abolition of the defense of
assumption of risk must stop. After brushing away the
objections based on the contention that the Legislature did
not have power to abolish the defenses of contributory negli-
gence and that based on the fellow-servant doctrine, and
after disposing adversely of the contention that there had
been an unlawful classification of industries for the purposes
16 bradbtjry's workmen's compensation law
"Elective" laws and constitutional question involved
of the Act then under discussion, and then, after noting the
Court's reservation of the question of whether or not the
Act then under consideration unlawfully attempted to
abolish the right of trial by jury, the Court continued the
argument on the remaining point and remarked (in 201 N. Y.
271) at page 293:
"When our Constitutions were adopted it was the
law of the land that no man who was without fault or
negligence could be held liable in damages for injuries
sustained by another. That is still the law, except as to
the employers enumerated in the new statute, and as to
them it provides that they shall be liable to their em-
ployes for personal injury by accident to any workman
arising out of and in the course of the employment which
is caused in whole or in part, or is contributed to, by a
necessary risk or danger of the employment or one in-
herent in the nature thereof, except that there shall be
no liability in any case where the injury is caused in
whole or in part by the serious and willful misconduct
of the injured workman. It is conceded that this is a
liability unknown to the common law and we think it
plainly constitutes a deprivation of liberty and property
under the Federal and State Constitutions, unless its
imposition can be justified under the police power which
will be discussed under a separate head. In arriving at
this conclusion we do not overlook the cogent economic
and sociological arguments which are urged in support
of the statute. There can be no doubt as to the theory
of this law. It is based upon the proposition that the
inherent risks of an employment should in justice be
placed upon the shoulders of the employer, who can
protect himself against loss by insurance and by such
an addition to the price of his wares as to cast the burden
ultimately upon the consumer; that indemnity to an
injured employe1 should be as much a charge upon the
INTRODUCTION 17
"Elective" laws and constitutional question involved
business as the cost of replacing or repairing disabled
or defective machinery, appliances or tools; that, under
our present system, the loss falls immediately upon the
employe who is almost invariably unable to bear it,
and ultimately upon the community which is taxed for
the support of the indigent; and that our present system
is uncertain, unscientific and wasteful, and fosters a
spirit of antagonism between employer and employe
which it is to the interests of the state to remove. * * *
The argument that the risk to an employe" should be
borne by the employer because it is inherent in the
employment, may be economically sound, but it is at
war with the legal principle that no employer can be
compelled to assume a risk which is inseparable from
the work of the employe, and which may exist in spite
of a degree of care by the employer far greater than may
be exacted by the most drastic law. If it is competent
to impose upon an employer, who has omitted no legal
duty and has committed no wrong, a liability based
solely upon a legislative fiat that his business is in-
herently dangerous, it is equally competent to visit
upon him a special tax for the support of hospitals and
other charitable institutions, upon the theory that they
are devoted largely to the alleviation of ills primarily
due to his business. In its final and simple analysis
that is taking the property of A and giving it to B, and
that cannot be done under our Constitutions."
In a subsequent portion of the opinion the court took up
the question of whether or not the Act then under discussion
could be sustained as an exercise of the police power and
decided this question adversely. The whole trend of the
principal decision is that the defense of assumption of risk
is a common-law right, constituting property, which cannot
be summarily taken away from an employer.
While no workmen's compensation act has been passed
2
18 bradbury's workmen's compensation law
"Elective" laws and constitutional question involved
upon by the Federal Supreme Court, it is fortunate for those
who are in favor of sustaining the validity of such acts, that
that tribunal has squarely decided * almost the precise point
involved in the Ives case, and that the decision of the Federal
tribunal appears to be contrary to the determination reached
by the New York Court of Appeals. The decision of the
Federal Supreme Court was announced on January 15, 1912,
while the Ives decision was handed down on March 24, 1911.
The United States Supreme Court had under consideration
the Federal Employers' Liability Act which is applicable to
those engaged in interstate commerce. That act abolished
entirely the defense based on the fellow-servant doctrine,
abolished entirely the defense of contributory negligence
and enacted the rule of comparative negligence, and abro-
gated the defense of assumption of risk in all instances where
the employer's violation of a statute enacted for the safety
of his employes contributed to the injury.2 In overruling
the contention that the Act violated the Constitution the
Court quoted with approval the rule stated below from a
number of previous adjudications made by the same Court
(223 U. S. 1, at page 50) :
"A person has no property, no vested interest, in any
rule of the common law. That is only one of the forms of
municipal law, and is no more sacred than any other.
Rights of property which have been created by the common
law cannot be taken away without due process; but the law
itself, as a rule of conduct, may be changed at the will * * *
of the legislature, unless prevented by constitutional limita-
tions. Indeed, the great office of statutes is to remedy
1 Second Employers' ■ Liability Cases, 223 U. S. 1; Bradbury's Work-
men's Compensation and State Ins. L. (1st Ed.), p. 785.
2 The New York Court of Appeals has .since this decision was made
abolished the defense of assumption of risk when the injury was due to a
violation of a safety statute, without any action on the subject by the
Legislature. Fitzwater v. Warren, 206 N. Y. 355; 99 N. E. Rep. 1042.
INTRODUCTION 19
"Elective" laws and constitutional question involved
defects in the common law as they are developed, and to
adapt it to the changes of time and circumstances."
The whole controversy as to whether or not elective laws
are constitutional simmers down to the question whether
the defense of assumption of risk, as applied to this class
of cases, is a vested property right or merely a rule of
the common law, or a rule of conduct prescribed by the
common law, which can be changed at will. Upon the
reasoning of the Supreme Court in the Second Employers'
Liability Cases (223 U. S. 1), it would appear to be a rule
which may be abolished. A distinction must be noted, how-
ever, between the decision of the Court of Appeals in the
Ives case and of the Federal Supreme Court in the Second
Employers' Liability Cases. Under the Federal Employers'
Liability Act the defense of assumption of risk is not com-
pletely abolished, except in the cases where some fault
may yet be predicated upon the act of the employer. It
is only where the employer's violation of a statute, enacted
for the safety of his employes, contributed to the injury, that
the defense of assumption of risk is entirely abolished.
Nevertheless the decision of the Federal Court is broad
enough to cover the entire ground. It generalizes and treats
all three defenses as intrinsically based on rules of the com-
mon law which "may be changed at the will of the legisla-
ture," and not property which cannot be taken without due
process of law.
A curious twist has been given to the law of New York as
represented by the doctrine announced in the Ives case by
more recent adjudications in that State. In the case of Fitz-
water v. Warren, 206 N. Y. 355, the court specifically over-
ruled the doctrine of the leading case of Knisley v. Pratt,
148 N. Y. 372, and held that as to injuries which were caused
by the violation by the master of a statutory safety regula-
tion, there could be no assumption of risk on the part of the
employe, In a more recent case a Justice of the Supreme
20 bradbury's workmen's compensation law
"Elective" laws and constitutional question involved
Court has reached the conclusion that "the only logical
result of the recent authorities would seem to be that what-
ever was left of the defense of assumption of risk in master
and servant cases for negligence has been done away with
and that such a defense in such actions, whether brought at
common law or under the statute, no longer exists." Rosasco
v. Ideal Opening pie Co., 79 Misc. 507; 141 Supp. 23. In
the last-mentioned case the Court points out that, of course,
in all such cases, liability, must primarily depend upon the
negligence of the defendant. If the employer has not been
guilty of negligence there is no liability. The defense of
assumption of risk is by way of confession and avoidance
and necessarily presupposes that the defendant has been
guilty of negligence. The Court then adds: "The defense
of assumption of risk, so called, depends usually upon an
implied agreement; in other words, the agreement is estab-
lished by evidence from which the intention of the parties is
implied. Where the employe knew of and appreciated the
risk or danger and entered upon and continued in the em-
ployment with such knowledge, or where the risk or danger
was so manifestly apparent and obvious that if he exercised
the care of a reasonable and prudent man he must have
known it, and hence is assumed to have known it, the courts
have held, as matter of law, that the employe had agreed
to assume the risk of injury because in such cases, on such
evidence, the Court would be bound to instruct the jury that
they must find the fact that the employe* had agreed to assume
the risk, or, if they found otherwise, set the verdict aside."
The Court then cites Johnston v. Fargo, 184 N. Y. 379, in
which it was held that an express agreement in writing by
the employe to waive or assume the risk of an injury due to
the negligence of the employer was in violation of public
policy and void. The Court then cites the case of Fitzwater
v. Warren, 206 N. Y. 355, in which it was held that no other
or different principle from that announced in Johnston v.
Fargo could be applied in the case of an implied agreement.
INTRODUCTION 21
Brief review of the American laws thus far passed
The Court then remarked that as the Court of Appeals
had held that neither an express nor an implied agreement
to assume the risk of employment could be sustained that
the defense of assumption of risk was entirely abolished in
all cases between master and servant for damages for injuries
caused by negligence. An appeal was taken from the Rosasco
case, but before it came on for argument the case was settled.
These decisions would seem to remove any obstacles which
may be found in the Ives case against upholding elective
workmen's compensation laws.
The discussion in the Ives case related to a compulsory
law which made the employer liable without regard to his
negligence or freedom therefrom. Of course under the com-
mon law or employers' liability acts even though all the
common-law defenses are abolished the workman must still
prove that his employer was negligent in order to recover.
Therefore the later decisions are not very persuasive on the
question of whether or not compulsory workmen's com-
pensation laws are valid in the absence of constitutional
amendment specifically authorizing the enactment of such
statutes.
8. Brief review of the American laws thus far passed.
All the laws thus far passed, with the exception of those in
Arizona, Washington, California and New York, are elective.
In Ohio, also, a law has been passed to take effect, so far as
the compulsory feature is concerned, on January 1, 1914. l
Under a provision of the amended Constitution of that
1 The taking effect of the compulsory law in Ohio has been left in doubt
by a referendum petition which is in litigation and had not been decided
when this edition went to press. In ordinary course the referendum
petition would have been decided at the election in the fall of 1913. Court
proceedings were taken to test the validity of the referendum and these
proceedings were pending undetermined when the election was held in
1913. The Ohio Industrial Commission takes the position that the com-
pulsory lawtwent into full effect on Jan. 1, 1914. See note prefixed to
text of Ohio law.
22 bradbury's workmen's compensation law
Brief review of the American laws thus far passed
State, the Legislature is empowered to enact a compulsory
statute. The present law, which remains in effect so far as
the compulsion is concerned, up to January 1, 1914, is an
elective act. In other respects the amended law went into
effect on June 17, 1913. In Washington, Oregon, West
Virginia and Ohio the statutes are founded on the State
insurance plan t® a greater or less extent. This does not
mean that the State guarantees the payments, but merely
that State officers supervise the State insurance fund which
is authorized to be created. In none of these commonwealths
where State insurance plans are in force, except in Ohio, can
the employer adopt the workmen's compensation principle
at all without also adopting the State insurance plan. In
Ohio, under the amended law, employers are given the option
in certain cases to carry the risk themselves or to become
members of mutual associations. The State insurance stat-
utes except the West Virginia Act and new one in Ohio
apply to a limited number of occupations only.
In the other States the laws either impose a personal
liability on the employer, or on an insurance association or
company in which the employer carries the risk incident to
the workmen's compensation act, or on a State insurance
fund, which the employer has the option of joining in a few
commonwealths. In California, Connecticut, Michigan
and New York the employer has the option of self-insurance,
stock company insurance, joining a mutual association
or a State insurance fund. In some of the States no assur-
ance is required at all, the liability being carried by the em-
ployer personally.
Massachusetts has a law which, until very recently, was
peculiar to that State. Texas has now adopted a stat-
ute similar in many respects to the Massachusetts law.
In Massachusetts the Act provides for the creation of a
mutual insurance company, which, at first, was organized
by directors appointed by the Governor. Subsequently
the employers who became members elected the directors
INTRODUCTION 23
Brief review of the American laws thus far passed
and thereafter it became purely a private mutual insurance
company. Other mutual associations authorized to do busi-
ness under the laws of Massachusetts and also stock liability
insurance companies authorized by the laws of Massachusetts
to do business in that State stand on the same basis that the
State company occupies. Claims for compensation are paid
directly by any of the insurance companies carrying partic-
ular risks. Employers are not permitted to adopt the com-
pensation principle without showing that they have secured
an insurance policy in a duly authorized company and when
their insurance lapses they are deprived of the benefits of
the limitations contained in the Compensation Act. As be-
fore stated, the new Texas Act is constructed very much on
the principles of the Massachusetts statute.
In Michigan still another plan was adopted. There em-
ployers are permitted to carry their own risks if they can
demonstrate to the satisfaction of the proper authorities that
they are financially responsible and able to carry such risks;
or they may insure in mutual insurance associations created
under the laws of the State of Michigan; or they may insure
in stock liability insurance companies authorized to do busi-
ness under the laws of the State of Michigan; or they may
join a State insurance fund which is administered by the
Commissioner of Insurance. The disputes over claims for
compensation are decided by the Industrial Accident Board
created by the Act with a right of review in the courts in
certain cases. An employer cannot adopt the compensation
principle without either taking one of the forms of insurance
specified or demonstrate to the Commissioner of Insurance
that he is financially able to carry the risk himself. Some-
what similar statutes with important modifications have
been passed in California and Connecticut. The New York
Act is a combination of the Ohio and the Michigan statutes,
also with important modifications.
The requirement that an employer should insure is, of
course, for the benefit of the workmen. The conditions under
24 bradbury's workmen's compensation law
Brief review of the American laws thus far passed
workmen's compensation acts are very different from those
which exist under employers' liability statutes. Under the
common-law or employers' liability acts the workman can
bring an action and secure a judgment for a specified sum of
money, which he can enforce for the entire sum immediately.
Under workmen's compensation acts the payments are de-
ferred and are distributed over a large number of weeks,
months, or years in some instances. An employer who is per-
fectly solvent when the award is made may be in bankruptcy
before the end of the term during which compensation is
payable. It is important, therefore, for the purpose of pro-
tecting the workmen, to see that the deferred payments are
assured in some way.
There is a great variance in the different statutes as to the
benefits which are paid. In the first place; practically all of
the statutes allow a waiting period of from one to two weeks
after the accident before any compensation is allowed. In
some of them, compensation for the full period of disability
is allowed if such disability continues more than a specified
number of weeks.
All of the statutes allow certain sums for medical attention
during a period varying from two weeks, as in New Jersey,
for example, to ninety days, as in the California law. The
amount payable for medical attention is limited in some
statutes and is entirely unlimited in others.
The amount payable for temporary disability varies from
50% to 66%% of the wages of the man at the time of the
injury or his average wages during a specific time, usually
a year just prior to the injury. In certain rare instances even
a larger percentage of wages is allowed.
In cases of total permanent disability, such as the loss of
two hands, two arms, two eyes, etc., some of the statutes
allow compensation for the remainder of the life of the work-
man. Most of them, however, limit the total compensation
to be paid in such cases either by the number of weeks or
by the total sum disbursed.
INTRODUCTION 25
Brief review of the American laws thus far passed
In cases of temporary or partial disability and in many
statutes in cases of total disability the weekly payments are
limited from $8 to $15 as a maximum and $4 to $5 as a
minimum, except where the workman was earning less than
the rninimum at the time of. the injury, in which event he
receives full wages instead of any fraction thereof.
In some of the statutes it is provided that in case of
specific injuries, like the loss of one hand, or one arm, or
one eye, a specific amount is allowed consisting of a percent-
age of the workman's wages for a specified number of weeks.
In some of the statutes this specific allowance is in addition
to other compensation for disability and in others it is in
lieu of all other compensation except for medical attention.
There are an infinite variety of provisions in cases of death.
Usually, compensation is allowed to certain specified de-
pendents, amounting to from 15% to 66 2/3% of the wages of
the workman, with maximum limits of from $10 to $15 per
week, and minimum limits of from $4 to $5 a week over a
specified number of weeks. There is also a limitation on the
total amount to be paid in death cases as well as in all cases
of disability, except where such disability is permanent and
total, ranging from $3,000 to $5,000. In death cases also
where the percentage of the wages which are allowed would
be less than $4 or $5 a week, as the case may be, full wages
are allowed. In a few of the statutes the widow's compen-
sation depends upon the continuance of widowhood. Com-
pensation to children also ceases when they reach certain
ages.
The question of the proper schedule of compensation has
been the subject of much discussion, some of it more or less
heated. The workmen, naturally, have been in favor of a
liberal schedule under which a very large percentage of the
wages earned would be paid in case of disability. Nat-
urally, also, employers have endeavored to keep the sched-
ule within reasonable bounds.
This subject is of much greater importance than is gen-
26 bradbury's workmen's compensation law
Brief review of the American laws thus far passed
erally supposed. There are natural limitations on the
amount which may be paid which apply especially to the
laws passed in the various States. There are other limita-
tions which rest on expediency.
International industrial competition prevents the em-
ployers of the American States generally from paying com-
pensation which ^proportionately higher than is paid in the
industries of foreign countries, the products of which are
sold in competition with the output of the American man-
ufacturers. International competition is modified in many
ways by methods of production, natural resources and tariff
duties.
Interstate competition plays a still more important part
in this question. In relation to the competition between the
States, the question of natural resources, methods of produc-
tion and tariff duties are not of so much consequence. In
some of the industries a supply of raw materials near the
plant has an important bearing on the subject of cost of
production. The methods in use also are important in this
connection. But these are considerations which apply irre-
spective of the compensation laws. Therefore, the industries
of one State which are brought in direct competition with
those of an adjoining State, where the natural conditions are
approximately equal in the two commonwealths, cannot
afford to carry a burden which will add to the cost of pro-
duction a sum which is appreciably more than is borne by the
industries in the sister commonwealth. Interstate competi-
tion is often very much more keen than international com-
petition. For this reason, therefore, it would be very unwise
for one State to adopt a schedule of compensation which
would throw on its industries a burden much greater than is
borne by industries of a similar nature in an adjoining State.
This is a law of trade which it will be foolhardy to disregard,
however humanitarian might be the considerations inducing
the adoption of a liberal schedule of compensation. For
where the compensation rate is high as compared with that
INTRODUCTION 27
Brief review of the American laws thus far passed
of an adjoining State, the wages must be reduced or the em-
ployers in the competitive industries will be compelled to
move to the State where the lower compensation rate pre-
vails, or go out of business.
In comparing the schedule of the compensation laws of
American States with those of foreign countries it should
not be forgotten that in a number of the foreign laws where a
liberal schedule is found that the workmen themselves con-
tribute a considerable portion of the amount eventually paid.
This is especially true in Germany where the workmen
themselves pay two-thirds of the benefits distributed for
injuries which do not cause disability lasting more than
thirteen weeks. In America the principle of compelling
workmen to contribute anything whatsoever has been
frowned upon and has only been adopted in one or two
instances, and then the contributions have been trivial.
The encouragement to malinger which a liberal scale of
compensation undoubtedly develops must be given serious
consideration in deciding this question. This is especially
true under the plans which have been denominated State
Insurance in a few of the American commonwealths. In
Germany, for example, both the workmen and the employers
themselves administer the Associations which have charge
of the operation of the compensation law. As the workmen
are compelled to contribute to the funds distributed the
associations formed by them naturally have a keen interest
in ferreting out and preventing fraud and malingering. The
same considerations apply to the operations of the purely
accident associations which are supported and administered
solely by the employers. Under the so-called State insurance
plans, however, no such safeguards exist. There are neither
workmen nor employers who have a personal interest in
ferreting out and preventing fraud and malingering among
the workmen in a particular establishment. That such
fraud and malingering exist to a considerable extent, even
in Germany with all its safeguards, has been shown by much
28 bradbury's workmen's compensation law
Brief review of the American laws thus far passed
testimony from officials and others in Germany. The same
complaint has been made in England. The truth of it is
that there are a few workmen in every community who
would rather loaf on ten dollars a week than work for twenty
dollars a week. This number increases when the, compensa-
tion is made almost the same as the wages. This small class
will always take advantage of excessive liberality in the scale
of compensation and simulate disability where none exists,
or exaggerate injuries which are really trivial.1
The foregoing are all important considerations which it
would be the height of folly to ignore in fixing the schedule
of compensation. While, therefore, it is easy and in fact a
great satisfaction to say that we shall exercise the greatest
liberality in this respect, such a proceeding has dangers
which might in the end tend to discredit and perhaps destroy
any plan of compensation.
The procedure in determining claims for compensation is
as varied in the different statutes as are all the other provi-
sions. Usually, there must be some supervising authority
to validate any settlement made between employers and
employes. Attorneys' fees are limited and subject to
approval. The compensation is usually paid in weekly in-
stallments in the same manner that wages are paid, but there
are provisions allowing, under special circumstances, that all
compensation payments shall be commuted to a lump sum.
In some instances disputed questions are determined by a
board created under the act, and in others by the courts, in
a summary manner. In those jurisdictions where State
insurance funds are created the same board that collects the
fund from the employers in a few instances disburses it to
the employe's, and determines practically all the questions
arising under the different acts.
1 In Germany a professional acrobat on the stage had been discovered
drawing compensation for physical disability. In another case a man
supposed to be disabled by reason of an injury to Ms elbow was found
taking part in professional prize fights.
INTRODUCTION 29
Brief review of the American laws thus far passed
Notices of accidents and of claims for compensation are re-
quired by most of the acts within particular periods of time,
although these provisions are very liberal and generally de-
void of technical requirements.
> There are also provisions for the physical examination of
claimants for compensation.
Reports from various States where compensation acts
are in force show that there has been scarcely any litigation
over compensation claims between employers and work-
men. Apparently, the American States have taken a long
step in advance on this subject within the last two years
and are still advancing rapidly.
As before stated the elective law in Ohio was sustained
by a decision of the Ohio court of last resort. State ex rel.
Yaple v. Creamer, as Treasurer, 85 Ohio State, 349; 97 N. E.
Rep. 602; 1 N. C. C. A. 30. The Washington law has also
been sustained by the court of last resort of that common-
wealth. State ex rel. Davis Smith Co. v. Clausen, 65 Wash-
ington, 156; 117 Pac. Rep. 1101 ; 3 N. C. C. A. 599. Also by
the United States District Court sitting in Washington. Stoll
v. Pacific Coast Steamship Co., 205 Fed. 169. The last-
mentioned decision was printed in full in Market World and
Chronicle (N. Y.) , Mar. 24, 1913. Likewise the Wisconsin law
has been sustained. Borgnis v. Falk Co., 147 Wis. 327; 133
N. W. Rep. 209; 3 N. C. C. A. 649. -In Massachusetts the
Constitution permits the Legislature to submit proposed acts
to the Supreme Judicial Court on the question of their con-
stitutionality. In this way the Workmen's Compensation
Act was submitted and declared to be constitutional. Opin-
ions of Justices as to Constitutionality of House Bill 2154;
Senate No. 615, 209 Mass. 607; 96 N. E. Rep. 308; 1 N.
C. C. A. 557.
The opinions of the courts of last resort of Massachusetts,
Ohio, Washington and Wisconsin referred to above, as well
as the opinion of the New York Court of Appeals in the Ives
case, and of the United States Supreme Court in the Second
30 bradbury's workmen's compensation law
Brief review of the American laws thus far passed
Employers' Liability Cases, were printed in full in the first
edition of this work. They are omitted from this edition
for the reason that they are now easily obtainable in the
regular reports and the space they occupied was badly
needed for important new material. The Ives case and the
Second Employers' Liability Cases have been discussed in the
preceding pages. ^Digests of the decisions in Massachusetts,
Ohio, Washington and Wisconsin are appended.
Opinions of the Justices, 209 Mass. 607; 96 N. E. Rep. 308;
Bradbury's Workmen's Compensation L., 1st Ed., p. 650;
1 N. C. C. A. 557. The principal points decided by the
Court were the following:
1. The rules of law relating to contributory negligence
and assumption of risk and the effect of negligence by a
fellow servant were established by the courts,, not by the
Constitution, and the legislature may change them or do
away with them altogether, as defenses, as in its wisdom in
the exercise of powers intrusted to it by the Constitution it
deems will be best for the "good and welfare of this Common-
wealth."
2. There is nothing unconstitutional in the provision of
the Compensation Act that it shall not apply to domestic
servants and farm laborers, nor in the provision that an
employe shall be deemed to have waived his right of action
at common law if he shall not have given notice to his em-
ployer as in the act provided.
3. As the Compensation Act does not contain any legal
compulsion to an acceptance by an employer or an employe
of the provisions for compensation in lieu of damages, it is
not in conflict with the Fourteenth Amendment of the
Federal Constitution prohibiting the taking of property
without due process of law, and constitutes a valid exercise
of the power of the legislature of the Commonwealth of
Massachusetts.
State ex rel. Yaple v. Creamer, as Treasurer, 85 Ohio St.
349; 97 N. E. Rep. 602; Bradbury's Workmen's Compensa-
INTRODUCTION 31
Brief review of the American laws thus far passed
tion L., 1st Ed., p. 764; 1 N. C. C. A. 30. The Court de-
cided that:
1. The , Workmen's Compensation Act providing for a
classification of certain industries where five or more work-
men are employed, establishing a State insurance fund by
premiums to be paid at the rate of ninety per cent by the
employers and ten per cent by the workmen and creating a
State Liability Board of Awards to administer such fund and
providing that as to employers who do not accept the com-
pensation principle that certain common-law defenses shall
be abolished in actions by their workmen, is a valid exercise
of the police power of the Legislature and is not unconstitu-
tional as taking private property without due process of law
contrary to the Fourteenth Amendment of the Federal
Constitution; nor is it invalid as violating the right <to a trial
by jury, nor that it deprives parties of the freedom of con-
tract or impairs the obligation of contracts, nor that it makes
an unjust and arbitrary classification of industries for the
purpose of the statute.
State, ex rel. Davis Smith Co. v. Clausen, 65 Wash. 156;
117 Pac. Rep. 1101; Bradbury's Workmen's Compensation
L., 1st Ed., p. 703; 3 N. C. C. A. 599. The following are
the points decided:
1. The test of the validity of a law which creates a liability
without fault is not found in the inquiry: Does it do an objec-
tionable thing? But is found rather in the inquiry: Is there
no reasonable ground to believe that public safety, health
or general welfare is promoted thereby?
2. The Legislature cannot declare a particular industry
commonly engaged in by the people, to be unlawful, which
under all circumstances, must necessarily be harmless and
innocent; but it can regulate and control and prohibit any
industry, however innocent it may have been at its inception,
whenever it becomes a menace to the employes engaged
in it, the people surrounding it, or to any considerable num-
ber of people at large, no matter from whatsoever cause
32 bradbury's workmen's compensation law
Brief review of the American laws thus far passed
the menace may' arise. This it does under the police
power.
3. As the act in question has a reasonable relation to the
protection of the public health, morals, safety and welfare,
it will not be set aside- because it may incidentally deprive
some person of his property without fault or take the prop-
erty of one person to pay the obligations of another.
4. That portion" of the act which permits certain sections
to stand even though others are declared to be invalid does
not render the act unconstitutional. *
5. Classifying industries for the purpose of collecting
premiums and distributing compensation does not render
the act invalid as class legislation.
6. The act is not invalid as creating taxation which is not
uniform.
7. The statute is not unconstitutional as infringing the
right of trial by jury.
Borgnis v. Folk Co., 147 Wis. 327; 133 N. W. Rep. 209;
Bradbury's Workmen's Compensation L., 1st Ed., p. 656;
3 N. C. C. A. 649. The Court decided the following points:
1. Where a constitution contains on a particular subject
no express command but only general language or policy,
the conditions prevailing at the time of its adoption must
have their due weight; but the changed social, economic
and governmental conditions and ideals of the time as well
as the problems which the changes have produced, must
also logically enter into the consideration and become
influential factors in the settlement of problems of consti-
tutional interpretation.
2. The term "public policy" is frequently used very
vaguely, and evidently is so used in the Compensation Law.
It is, however, quite a definite thing. Public policy on a
given subject is determined by the Constitution itself or by
statutes passed within constitutional limitations. Only in
the absence of such constitutional or statutory determina-
tion may it be determined by the decisions of the courts.
INTRODUCTION 33
Brief review of the American laws thus far passed
3. The classification of employers into those who do and
those who do not elect to come under the compensation
feature of the statute and giving to each different rights and
remedies is not unlawful.
4. The provisions of the statute making it applicable
only to employers who employ four or more workmen does
not constitute an unlawful classification.
5. The provision that if one section or portion of the law
shall be declared to be invalid other portions shall not be
affected, or shall be affected in a particular way, is not un-
constitutional.
6. There is no greater right to abolish the common-law
defenses as applicable to actions growing out of injuries in
the hazardous industries than there is to abolish those de-
fenses in relation to the non-hazardous occupations.
7. The statute is not unconstitutional as coercing employ-
ers to accept its provisions by abolishing their common-
law defenses if they refuse to elect to be bound by the com-
pensation principle.
8. The Industrial Commission is not a court within the
meaning of article 7, § 16, of the constitution of Wisconsin
and therefore the statute creating such commission is not
unconstitutional.
9. The right to bring an action in the future for a tort not
yet committed can in no way affect the contract of employ-
ment between an employer and his employe's, and, therefore
the Compensation Act is not unconstitutional as violating
the obligation of the contract between an employer and his
workmen.
There has been much discussion as to the constitutionality
of the New Jersey Act. So far it has been sustained by the
Supreme Court of that State, although there is an appeal
pending to the Court of Errors and Appeals in New Jersey.
Sextan v. Newark District Telegraph Company, 2 Bradbury's
PI. & Pn Rep. 221; 3 N. C. C. A. 569. The constitutionality
of the New Jersey law has also been discussed in two cases in
3
34 bradbury's workmen's compensation law
Extra-territorial effect of compensation statutes
New York courts. Alhanese v. Stewart, 2 Bradbury's PL &
Pr. Rep. 189; Pensabene v. Auditore Co., Ibid. 197; and the
same case in the Appellate Division, Ibid. 212.
ARTICLE B— TWO FUNDAMENTAL PROBLEMS ESPECIALLY
IMPORTANT IN AMERICA
*
1. Extra-territorial effect of workmen's compensation
statutes.
The question of the extra-territorial effect of the work-
men's compensation acts naturally is subdivided into two
parts:
I. When may the authorities of a State enforce the
compensation act of their own State in relation to
accidents which happen beyond the borders of their own
State?
II. When may the courts of one State enforce the
compensation laws of another State, in relation to acci-
dents which happen,
(a) Within the boundaries of the State the law of
which is sought to be enforced;
(b) Within the boundaries of the State where the
proceeding is brought; or
(c) Within the boundaries of a third State?
The answer to the question in subdivision I, appears to
depend, very largely at least, upon the provisions of the
statute which is thus sought to be enforced. Up to this time
it has been held by the Supreme Judicial Court of Massachu-
setts, the Michigan Industrial Accident Board, the Industrial
Commission of Wisconsin and the Courts of Great Britain,
that a statute of this character has no extra-territorial effect,
and that where an accident happens outside of the State, or
of the country, as the case may be, that a claim for compensa-
INTRODUCTION 35
Extra-territorial effect of compensation statutes
tion cannot be enforced in that State or that country, unless
there is a special provision in the statute itself by which it
applies to such cases. Gould v. Sturtevant and American
Mutual Liability Ins. Co., 215 Mass. ; 102 N. E. Rep.
693; Keyes Davis Co. v. Allerdyce, Michigan Industrial
Accident Board, April, 1913; Ruling of Wisconsin Indus-
trial Commission, but not in an actual litigation; Hicks v.
Maxton (1907), 1 B. W. C. C. 150; Tomalin v. S. Pearson &
Son (1909), 100 L. T.'685< 2 B. W. C. C. 1; Schwartz v.
Indiarubber, Guttapercha and Telegraph Works Co. (1912),
2 K. B. 299; 5 B. W. C. C. 390.
In New Jersey and Ohio a contrary conclusion has been
reached. Deeny v. Wright & Cobb Lighterage Co. (Martin, J.,
Essex Common Pleas, February, 1913), 36 N. J. Law J. 121;
Re Edward Schmidt, Claim No. 6, Ohio State Lia. Bd. Awd.,
July 10, 1912; Op. Atty. Gen'l, Mch., 1914.
In Gould v. Sturtevant and American Mutual Liability Ins.
Co., 215 Mass. ; 102 N. E. Rep. 693, the Court said:
"The facts are that the employe1, a citizen and resi-
dent of this commonwealth, made a contract of hire
with employer, a Massachusetts corporation, for render-
ing to it his personal services and accepted the benefits
of the Act. In the course of his employment he received
the injury for which this claim arises, in the State of
New York. He was principally employed in Massachu-
setts, but at times incidentally worked in New York
and other States. The Industrial Accident Board
found that the insurer had been paid by the employer
for insuring all injuries received by its employes in the
course of their employment, whether within or without
the commonwealth. This factor is not of much sig-
nificance because the obligation of the policy does not
refer to anything occurring outside of the State, and
provides only for performance of the requirements and
payment of the compensation designated in the Act.
36 bradbury's workmen's compensation law
Extra-territorial effect of compensation statutes
If the Act enjoins the payment of compensation for'
injuries received outside the State the insurer has con-
tracted therefor, otherwise it has not. The question is
whether the Act governs the rights of parties touching
injuries received outside the State. It may be assumed
for the purpose of this judgment that it is within the
power of the Legislature to give to the Act the effect
claimed for it by the employe. Mulhall v. Fallon, 176
Mass. 266. The point to be decided is whether the lan-
guage used in the Act indicates a purpose to make its
terms applicable to injuries received outside the State.
This must be determined by a critical examination of
the words of the statute in the light of its humane pur-
pose. There is nothing which expressly states that the
Act governs the rights of the parties touching such in-
juries. This is significant. In the absence of unequi-
vocal language to the contrary it is not to be presumed
that statutes respecting this relation are designed to
control conduct or fix the rights of parties beyond the
territorial limits of the State."
The Court announced the general principle that the Act
does not apply to accidents which happen outside of the
State, and added:
"To say that such acts are intended to operate on
injuries received outside the several States enacting
them would give rise to many difficult questions of con-
flict of laws. It would require a large dependence upon
the comity of other States in enforcing our act and in
refraining from enforcing their own as to a subject which
commonly is wholly under the control of the several
States, and with which, it has been pointed out, a
substantial number have already manifested a purpose
to deal by a new and special Legislation. No court of
any sister State, so far as we are aware, has had occasion
to pass upon the precise question we have presented.
INTRODUCTION 37
Extra-territorial effect of compensation statutes
If employers and employes from different States carry
their domiciliary personal injury law with them to other
jurisdictions, confusion would ensue in the administra-
tion of the law, and allow the appearance of inequality
among those working under similar conditions. If such
a result had been intended by the general court it can-
not be doubted that it would have been disclosed in
unambiguous words."
In Keyes Davis Co. v. Allerdyce, the Michigan Industrial
Accident Board followed the doctrines laid down by several
text writers to the effect that
"It is a general rule of law that every statute is con-
fined in its operations to persons, property and rights
which are within the jurisdiction of the Legislature
which enacted it; and when a citizen of the State leaves
it and goes into another State he is left to the protection
of the laws of the latter State."
The Board also held that the language used in the Michi-
gan Act was broad enough to include injuries occurring
without the State, but under the rule of construction of the
text writers, to which reference was made, it was held that
"such general language is limited and held to be in-
tended for application only to persons, rights and prop-
erty within the State."
The Board also referred to Part 3, § 8, of the Michigan
Act providing that hearings to adjudicate disputed claims
for compensation
"shall be held at the locality where the injury occurred,"
and then remarked:
"The obligation to pay compensation is not a matter of
contract or based upon contract, but is a statutory duty,
created by statute only by force of such statute."
The decision of the Wisconsin Industrial Commission was
38 bradbtjry's workmen's compensation law
Extraterritorial effect of compensation statutes
not made in a case actually pending before it, but was first
announced in reply to a question asked by an employer as to
the scope of the Act and was subsequently embodied in an
annotated edition of the Wisconsin Workmen's Compensa-
tion Act issued by the Commission.1
In the latest British case a workman was sent out of
England, by British employers, in a British ship, to do work
at Teneriffe. The ship was lost with all hands, in the Bay of
Biscay. It was held that the compensation act did not apply
to accidents happening outside the territorial limits of the
United Kingdom, or on a British ship, except as provided
under § 7 of the Act. Schwartz v. Indiarubber, Guttapercha,
and Telegraph Works Co. (1912), 5 B. W. C. C. 390. Section
7 of the British Act, referred to in the last-mentioned case,
applies to the crew of a ship but not to other persons on
board.
In Hicks v. Maxim (1907), 1 B. W. C. C. 150, a char-
woman residing in Dover, England, was taken by her em-
ployer, a French woman, to Calais, France, on two occasions,
to do work in the employer's house, and while at Calais she
suffered an injury. It was held that the Compensation Act
1 While the Industrial Commission of Wisconsin has held that the Com-
pensation Act of that State does not apply to accidents which happen out-
side that State, apparently the Commission has reached the conclusion
that in this respect the employers and employes may, to a certain extent,
modify their relations under the Act by contract. In replying to a letter
from an employer asking whether or not he could elect to adopt the
compensation principle as to a part only of his employes the Commission
gave a negative answer but added:
"The writer suggests that if you desire to exclude your traveling
salesmen from the operation of the law you can do so by having an
understanding with the salesmen to that effect, and that within
thirty days from the time you file your notice of election, your travel-
ing salesmen may serve upon you a notice to the effect that they do
not desire to come under the act."
A copy of the above letter was sent to the author by the Commission and
subsequently was published in one of the pamphlet bulletins issued by
the Commission.
INTRODUCTION 39
Extra-territorial effect of compensation statutes
did not apply when the action was brought in the County
Court at Dover.
In Tomalin v. S. Pearson & Son (1909), 100 L. T. 685; 2
B. W. C. C. 1, it was held that the dependent of a workman
who was a domiciled Englishman employed by English
employers under a contract of service entered into in Eng-
land, who was killed by an accident arising out of and in the
course of his employment while working in a place beyond
the limits of the United Kingdom, was not entitled to com-
pensation under the Act.
In the New Jersey case of Deeny v. Wright & Cobb Lighter-
age Co., 36 N. J. Law J. 121, the workman, a resident of
Newark, in New Jersey, made an oral contract of employ-
ment with his employer in Newark whereby the workman
was to assist in loading and unloading the boats of the
employer used by it in carrying freight to and from the
City of Newark. He was injured when working on one of
the employer's boats while it was tied to a barge at a wharf
in the Borough of Manhattan, City, County and State of
New York. There was no dispute that the accident hap-
pened within the bounds of the State of New York.1 The
Court quoted from the first edition of this work (p. 44) to the
effect that the Workmen's Compensation Statutes have no
extra-territorial effect, on the authority of the British cases.
The Court then said:
"It would seem, however, that Mr. Bradbury's con-
struction does not give full force to accidents within
the language of the New Jersey Act, which does not
expressly confine itself to the limits of New Jersey.
Apparently he is merely referring to the State of New
Jersey in the beginning of the quotation as a State in
1 The Court called attention to the fact that even though there had
been a dispute as to the State in which the accident happened, so long as
it occurred on the waters of New York Bay it would be within the juris-
diction of New York; citing, State v. Babcock, 30 N. J. Law, 29; Central
R. R. of N. J. v. Jersey City, 70 N. J. Law, 81.
40 bradbury's workmen's compensation law
Extra-territorial effect of compensation statutes
which there is a workingmen's Compensation Act as an
illustration, but without considering the terms of the
statute of New Jersey. The sections of the Act re-
lating to the matter are as follows:" quoting §§ 7, 8, 9
and 10.
The Court then continues:
"It appears that there is an implied contract to com-
pensate for injuries arising out of and in the course of the
employment and under it all other methods and rights
to any other form of compensation are relinquished.
The statute can have no extra-territorial effect, but it
can require a contract to be made by two parties to a
hiring that the contract shall have an extra-territorial
effect. The contract is binding on the employe* himself
and upon the employer, and it is conclusively presumed
that the parties have accepted the provisions of Section
II and have agreed to be bound thereby. The method
of termination of the contract is provided for in para-
graph 10. It would seem that the reasonable construc-
tion of the statute is that it writes into the contract of
employment certain additional terms. The cause of
action of petitioner is ex contractu. The lex loci con-
tractus governs the construction of the contract and
determines the legal obligations arising from it. 9 Cyc.
664. That the cause of action is ex contractu, see Sexton
v. The Newark District Telegraph Company, 34 N. J.
Law Journal, 368, and 35 N. J. Law Journal, 8; Perlsburg
v. Miller, 35 N. J. Law Journal, 202.
"The English cases cited in Bradbury's book are not
precedents, because a claim under the English act is
ex delicto.
"The objects of our act are to protect the citizens
and inhabitants of New Jersey. It is based upon the
proposition that the inherent risks of an employment
should, in justice, be placed upon the shoulders of the
INTRODUCTION 41
Extra-territorial effect of compensation statutes
employer, who can protect himself by an addition to the
price of his product, and so cause the burden ultimately
to fall upon the consumer; that indemnity to an injured
employe should be as much a charge upon the business
as the cost of replacing or repairing disabled or de-
fective machinery, appliances or tools; that under our
former system the loss fell immediately upon the em-
ploye, who is almost invariably unable to bear it, and,
therefore, ultimately upon the community which is
taxed for the support of the indigent, and that our
former system was uncertain, unscientific and wasteful
and fostered a spirit of antagonism between employer
and employe, which it is to the interest of the State to
remove.
"The contract here was to be partly performed in
New York and partly in New Jersey. The law of New
York, the Admiralty law or the Act of New Jersey
applies. The parties chose the law of New Jersey by
making the contract here without giving the notice
required by the act to come under Section 1. Shall the
public policy of New Jersey to place the burden on the
industry be carried into effect, or shall the sole loss fall
on the petitioner in violation of the law of his state?
"It would be contrary to public policy to place the
burden on the employ^ under the facts in the case.
"Petitioner was receiving as compensation for his
services the sum of thirty-five dollars a month, together
with his board and lodging on the boat, the value of
which is fifteen dollars a month. His average weekly
wages were eleven dollars and sixty-four cents. The
petitioner is entitled to receive five dollars and eighty-
two cents for ten weeks, temporary disability; five dollars
and eighty-two cents for the injury to his third finger
for ten weeks; and five dollars and eighty-two cents for
the injury to his fourth finger for fifteen weeks.
"The petitioner, therefore, is entitled to a judgment
42 bradbury's workmen's compensation law
Extra-territorial effect of compensation statutes
directing the payment of the amounts hereinbefore
stated, together with costs."
In the case of Perlsburg v. Miller, 35 N. J. Law J., 202
(to which the Court referred in the quotation from Deeny v.
Wright & Cobb Lighterage Co., above), the workman was
greasing the wheel of a wagon on the highway in front of the
employer's store, when a truck driven by an employe of
another firm hit the wagon and caused the injuries of which
complaint was made. The employe made a settlement with
the owners of the truck and gave them a general release.
It was contended by the employer that the release to the
third persons discharged him also, under the rule that a
release to one joint tort feasor releases all. It was held that
the employer was not a joint tort feasor who was responsible
for the injury; that the claim for compensation was based on
a contract and that therefore the settlement with and the
giving of the release to the third persons did not discharge
the employer from the claim for compensation.
The case of Sexton v. Newark District Telegraph Co., 34
N. J. Law J., 368; 35 N. J. Law J., 8; N. J. Law ; 86
Atl. Rep. 451; 3 N. C. C. A. 569 (referred to in the same
decision), is the case in which the New Jersey Workmen's
Compensation Act was held to be constitutional.
In the case of Edward Schmidt (Claim No. 6), Ohio St.
Lia. Board of Awards, July 10, 1912, it appeared that the
Rathbun-Jones Engineering Co. of Toledo, Ohio, a corpora-
tion engaged in the manufacture, sale and installation of
gas engines and a subscriber to the State Insurance Fund,
sent an employe' to the State of South Carolina where he was
engaged in erecting an engine which was built by his em-
ployers. While so doing he slipped and fell from an elevated
platform while starting the engine. The claimant was a
citizen of Ohio and the contract of employment was made in
that State. It appeared also that the employer had paiid
premiums to the State Fund on the payroll of employes sent
INTRODUCTION 43
Extra-territorial effect of compensation statutes
without the State. It was held, under such circumstances,
that the workman was entitled to compensation from the
State Accident Fund. Particular attention was called to the
section of the Ohio Act which provides that compensation
shall be paid "for injuries or death to any such employ^,
wherever occurring, during the period covered by such pre-
miums," provided the employe* has not elected to refuse to
accept the compensation principle. (§ 20, 1, of Law of 1911.)
The opinion of the Board was not put on the ground that
there was an implied contract under the Ohio law to pay com-
pensation, but entirely on the ground that the statute pro-
vided for compensation wherever the injury happened.
The Attorney General made a similar ruling in response to a
question by the Industrial Commission, in March, 1914.
That there is power in the Legislature of one State, or of
one country, to pass a compensation law which will govern
the rights and liabilities of master and servant for accidents
which happen outside of the State, or outside of the country,
under certain circumstances, appears to be recognized by
the Massachusetts court.
This is further demonstrated, to a limited extent, by the
fact that both the British and the German Workmen's Com-
pensation Acts provide for compensation, within the terms
of those acts respectively, as to seamen on German and
English vessels. Of course, in such cases, the vessel is con-
sidered as a part of the country the flag of which it carries,
no matter where the vessel may be. But the British Act, at
least, does not require that the accident shall happen on the
vessel. (§ VII.) In the British case of Hicks v. Maxton,
cited above, the Court discussed at some length the question
of whether or not the British Act had any extra-territorial
effect, and in deciding that it did not have such effect, ad-
verted to the provision of the statute specifically providing
for seamen on British vessels. The British statute has been
enforced frequently by the Courts of Great Britain as to
accidents which happened to seamen on British vessels in
44 bradbury's workmen's compensation law
Extra-territorial effect of compensation statutes
parts of the world other than British ports. The German
Compensation Law has been enforced recently by the Courts
of New York as to an accident which happened on a German
vessel while it was in New York Harbor. Schweitzer v. Ham-
burg American Line, 3 Bradbury's PI. & Pr. Rep. 285; 78
Misc. 448; 138 Supp. 944. In that case the defendant set up
the German Worfbnen's Compensation Act as a plea in bar
to an action for injuries alleged to have been caused by negli-
gence on a German steamer while the vessel was in the Port
of New York. When the case was first considered the Court
required the plaintiff to reply to this defense. Schweitzer v.
Hamburg American Line, 149 App. Div. 900; 134 Supp. 812.
In making that decision the Court reserved the sufficiency of
the defense as a matter of law, saying, among other things:
"There is also an intimation in the opinion of the
learned Court (at Special Term) that the provisions of
the German law were inapplicable under the circum-
stances here disclosed. We will not at the present time
decide these questions. The relation between the parties
was contractual, and the answer alleges that the per-
formance of the contract was to commence at Hamburg,
but that said contract was not to be completed until the
return of the vessel to that port. There is authority for
holding, under such circumstances, that the lex loci con-
tractus will control."
Subsequently the case came on for trial at the Kings
County Trial Term and a verdict was rendered in favor of the
plaintiff. Thereafter a motion was made to set aside the
verdict on the ground that the German Workmen's Compen-
sation Act was a bar to the action, in that the plaintiff's
exclusive remedy was under the German Act, and the motion
was granted on that ground. Schweitzer v. Hamburg Amer-
ican Line, 3 Bradbury's PI. & Pr. Rep. 285; 78 Misc. 448;
138 Supp. 944.
The provision in the compensation acts of Great Britain
INTRODUCTION 45
Extra-territorial effect of compensation statutes
and Germany that they shall apply to seamen on vessels of
those countries is not very persuasive on the point as to
whether or not such laws have in themselves any extra-
territorial effect. These statutes, in this respect, seem merely
to declare the principles of American common law, which
were established without recourse to legislative action.
In the case of McDonald v. Mallory, 77 N. Y. 546, an
employe of a vessel trading between the City of New York
and the City of Galveston, Texas, was injured. The defend-
ants were citizens and residents of the State of New York
and the steamer was registered as belonging to the Port of
New York. The plaintiff also was a citizen of the State of
New York. The accident occurred while the ship was at sea,
outside the bar and harbor of Galveston, Texas. The employe
was killed. The action was brought by the administrator
of his estate. The question before the court was, whether,
under the statute of the State of New York which gave a
right of action for causing death by wrongful act or neglect,
the action could be maintained for thus causing a death on
the high seas on board of a vessel from and registered in the
Port of New York. The court held that under the doctrine
of the case of Crapo v. Kelly, 16 Wall. 610, civil rights of
action for matters occurring at sea on board of a vessel be-
longing to one of the States of the Union must depend upon
the laws of that State, unless they arose out of some matter
over which jurisdiction has been vested in and exercised by
the government of the United States, or over which the State
had transferred its rights of sovereignty to the United States,
and that to this extent the vessel must be regarded as part of
the territory of the State. The action, therefore, was sustained,
and judgment rendered for the plaintiff.
The New Jersey case of Deeny v. Wright & Cobb Lighter-
age Co., 36 N. J. Law J., 121, to which reference has already
been made, might, perhaps, have been decided on the
doctrine announced in McDonald v. Mallory, and Crapo v.
Kelly, cited above, inasmuch as the accident happened on a
46 bradbury's workmen's compensation law
Extra-territorial effect of compensation statutes
vessel hailing from a New Jersey port. That the court in the
Deeny case had this principle in mind appears from the
statement by the court that:
"The law of New York, the Admiralty law or the
Act of New Jersey applies." Vide supra.
But the court seems to have gone further and to have held
that the relation between the employer and the employe1 was
contractual as to the right to compensation and therefore it
would not matter whether the accident happened on a vessel
in a New York port or on the streets of New York City.
We have long been familiar with the doctrine in relation to
causes of action for death, when the action is brought in a
State other than that in which the death was caused, that
the action must be based on the law of the State where the
accident happened. The common-law rule was that no action
be sustained for injuries causing death. This rule was
changed by statute, in a number of the States. The doctrine
was established early that where an action was brought in
one State for injuries causing death in another State, that
it could not be maintained, except by proof that the laws of
the State in which the accident happened permitted a
recovery for injuries causing death. It was not sufficient
that the laws of the State where the action was brought per-
mitted a recovery of damages in such a case. Whitford v.
Panama R. R. Co., 23 N. Y. 465; Mackay v. Central R. Co.,
4 Fed. 617; The Lamington, 87 Fed. 752; Leonard v. Columbia
Steam Navigation Co., 84 N. Y. 48; Stallknecht v. Pennsyl-
vania R. R. Co., 13 Hun, 451; Kiefer v. Grand Trunk Ry. Co.,
12 App. Div. 28; 42 Supp. 171; Gurney v. Grand Trunk Ry.
Co., 13 Supp. 645.
Later, when employers' liability laws were passed, it was
held generally that the laws of the State where the accident
happened, in so far as such laws contravened the common
law, at any rate, governed the cause, and not the laws of the
State where the action was brought. Voshefskey v. Hillside
INTRODUCTION 47
Extra-territorial effect of compensation statutes
Coal & Iron Co., 21 App. Div. 168; 47 Supp. 386; Payne v.
N. Y. Susquehanna & W. R. Co., 201 N. Y. 436; Howlan v.
N. Y. & N. J. Telephone Co., 131 App. Div. 443; 115 Supp.
316; Ziemer v. Crucible Steel Co., 99 App. Div. 169; 90
Supp. 962; Johnson v. Phoenix Bridge Co., 133 App. Div.
807; 118 Supp. 88.
In the Voshefskey case the court quoted from Story on
Conflict of Laws (7th Ed.), § 29, in which that author refers
to three axioms of Huberus, as follows:
" The first is, that the laws of every Empire have force
only within the limits of its own government, and bind
all who are subjects thereof, but not beyond those limits.
The second is, that all persons who are found within the
limits of a government, whether their residence is per-
manent or temporary, are to be deemed subjects thereof.
The third is, that the rulers of every Empire from comity
admit that the laws of every people in force within its
own limits ought to have the same force everywhere, so
far as they do not prejudice the powers or rights of
other governments, or of their citizens."
The Federal Supreme Court has held that the State
Courts may enforce causes of action arising under the Fed-
eral Employers' Liability Act. Second Employers' Liability
Cases, 223 U. S. 1.
It must be conceded that the basis of recovery under com-
pensation acts is somewhat different from that which under-
lies the old employers' liability acts, or the enabling statutes
permitting damages to be recovered in death cases. The
older statutes regulated actions for torts. Workmen's com-
pensation statutes usually, although not universally by
any means, have been understood to create contractual rela-
tions between employers and employes. In other words,
there is, at least, an implied contract that the employer will
pay compensation to the employe1 for injuries, whether or not
there is any negligence or other wrongful act on the part of
48 Bradbury's workmen's compensation law
Extra-territorial effect of compensation statutes
the employer. This is exemplified very clearly in the case
of employes who are injured while entirely away from the
premises of their employers, although remaining in the State
of the residence of their employers. Thus where a driver of
a horse attached to a wagon is injured by reason of the vehicle
being hit by a street car, the master must pay compensation
for the injuries, even though they were due to the wrongful
act of a third person, providing only that the injury arose
out of and in the course of the employment. Recovery of
compensation in such a case must depend either on the force
of the statute alone, or upon an implied contract between
an employer and the employe*. There is absolutely no
element of tort or wrong of any kind, so far as the employer
is concerned. In those States where compulsory acts are in
force, it may, perhaps, be said that there is no contract be-
tween the employer and the employ^, but that a specific duty
is imposed upon the employer by force of the statute. In
those States where elective laws are in force it would appear
that the right to compensation depends upon an implied
contract between the employer and the employe.
The very first of the elective compensation statutes, that
of New Jersey, provides in the initial section of the compensa-
tion part of the law:
"When employer and employe shall by agreement,
either express or implied, as hereinafter provided, accept
the provisions of Section II of this Act," etc.
The very foundation of the compensation principle is based
on contract in the New Jersey statute, and, as we have already
seen * it has been so held by the courts of New Jersey so far
as they have considered the matter.
Section 78 of the Arizona Workmen's Compensation Law
provides that:
" The employer and the workman shall alike be bound
by and shall have each and every benefit and right
1 See ante, page 39.
INTRODUCTION 49
Extra-territorial effect of compensation statutes
given in this Chapter the same as if a mutual contract
to that effect were entered into between the employer and the
workman at any time before tjhe happening of any
accident. It shall be lawful, however, for the employer
and workman to disaffirm an employment under the
provisions of this Chapter by written contract between them
or by written notice by one to and served upon the other
to that effect before the day of the accident."
The Connecticut Act provides, in § 1 of Part B that:
"The acceptance of Part B of this Act by employers
and employes shall be understood to include the mutual
renunciation and waiver of all rights and claims arising
out Of injuries sustained in the course of employment,"
etc.
It is provided in § 9 of Part 2, of the Minnesota Act that :
"If both employer and employe, shall, by agreement
express or implied, or otherwise, as herein provided,
become subject to Part 2 of this Act," etc.
Section 10 of Part II of the Nebraska Act provides:
"When employer and employe1 shall by agreement,
express or implied, or otherwise as hereinafter provided,
accept the provisions of Part II of this Act," etc.
Section 1 (c) 4 of the Nevada Act provides:
"Where the employer and employe have not given
notice of an election to reject the terms of this Act,
every contract of hire express or implied, shall be con-
strued as an implied agreement between them and a part
of the contract on the part of the employer to provide,
secure and pay, and on the part of the employe* to accept
compensation," etc.
Section 1 (c) 4 of the Iowa Act provides:
"Where the employer and employ 6 have not given
notice of an election to reject the terms of this Act,
4
50 bradbury's workmen's compensation law
Extra-territorial effect of compensation statutes
every contract of hire express or implied, shall be con-
strued as an implied agreement between them and a part of
the contract on the part of the employer to provide, secure
and pay, and on the part of the employe to accept com-
pensation," etc.
The other compensation acts are not so specific in this
regard. When Ihey are compulsory in form and are based
on constitutional provisions empowering the Legislature to
enact such statutes, it may be that the relation created by
such laws is not contractual.
Viewing the right to compensation as being based on a
contract, it does not appear to be important whether the
accident happened in the State under the law of which com-
pensation is claimed or in another State, any more than it is
important in an action for services that the services should
have been performed in the State where the contract was
made rather than in an adjoining State, When the contract
itself provides that an employer will pay the employe for
services rendered in the adjoining State.
The establishment of the doctrine that the rights and
liabilities of employers and employes under such acts are
based on contract would avoid much difficulty and conflict
which would arise should it be determined eventually that
compensation claims are based on torts, like common-law
or statutory actions for damages resulting from injuries
caused by negligence. In the event of the establishment of
the doctrine of contract, employers and employes would
always be able to determine their rights and liabilities.
There are hundreds of establishments which are sending men
constantly to various States to perform work, and if, in each
instance, the liability of the employer depends upon the con-
flicting provisions of the various compensation statutes,
wherever the employe may happen to be when he is injured,
the confusion will be burdensome.
The Supreme Judicial Court of Massachusetts certainly
INTRODUCTION 51
Extra-territorial effect of compensation statutes
stands very high. Its decision will have very great weight.
The author cannot help expressing a feeling of regret that
its decision in Gould v. Sturtevant (supra), was not the other
way.1
In any event, that decision seems to hold that it is within the
power of the Legislature to enact a compensation law which
will govern the rights of employers and employes when the
employes are injured without the State. In fact, such a law
has been enacted already,2 although this particular provision
does not appear to have been passed upon by the courts,
although it has been considered by the Ohio State Liability
Board of Awards.
1 The view was expressed in the first edition of this work (page 44) that,
in general, the compensation acts of the various States have no extra-
territorial effect, and that claims for compensation could not be enforced
under the laws of the State of the domicile of the employer and employ^,
even though the contract of employment was made in the State of such
domicile, for injuries occurring while the employe1 was in another State.
That view has been sustained by the Supreme Judicial Court of Massachu-
setts, the Michigan Industrial Accident Board and the Wisconsin Indus-
trial Commission, as appears by the cases cited, ante, page 35.
In spite of this justification of the views formerly expressed it is asserted
without hesitation by the author that he believes he gave too broad an
application to the decisions under the British Compensation Act. He
believes that the opinion expressed by Mr. Justice Martin in Deeny v.
Wright & Cobb Lighterage Co. {vide, supra, page 39) is more in conformity
with the spirit and the necessities of the development of the Compensation
principle in the American States. This is especially true as to elective
laws, and, to prevent difficulty, the same principle should be incorporated
in every compulsory statute. That there is ample justification for such a
course both on legal grounds and considerations of expediency the author
has endeavored to show in the text.
2 The Ohio law which goes into effect on January 1, 1914 (subject to
a referendum petition), provides (in §§ 1465-68; § 21 of the Act of 1913)
that:
"Every employe1 mentioned in subdivision one of section fourteen
hereof, who is injured, and the dependents of such as are killed in
the course of employment, wheresoever such injury has occurred," etc.
shall be entitled to compensation. Practically the same provision
is found in the old statute.
52 bradbury's workmen's compensation law
Extra-territorial effect of compensation statutes
The Massachusetts court points out the conflict and in-
equalities which might ensue should "employes and em-
ployers from different States carry their domiciliary personal
injury law with them to other jurisdictions." This seems to
assume that the relation brought about by the compensation
laws is not contractual. The moment it is admitted that the
relation rests on> contract the inequality and conflict almost
entirely disappear. Moreover, there are many practical and
apparently insurmountable difficulties in the way of working
out the compensation problems equitably, should the rule
established by the Massachusetts Court prevail generally.
Suppose a Massachusetts employe, who is employed by a
Massachusetts employer, is injured in Wisconsin and is
relegated to the Wisconsin Compensation law for his remedy.
How will he secure jurisdiction over the employer to enforce
the Wisconsin statute? If it is answered that the Courts of
Massachusetts would enforce the Wisconsin law as to Mas-
sachusetts employers and employes, the reply is that there
are serious obstacles in the way of such a procedure. This
difficulty arises from the provisions of these various statutes
as to the manner in which questions arising thereunder can
be determined. Some of them provide for arbitration, others
for a summary trial before a judge of a particular Court with-
out a jury, while others give certain accident boards, or in-
dustrial commissions, exclusive jurisdiction to hear and de-
termine such controversies. Naturally, the Courts of neither
Massachusetts nor New York, for example, could determine
in the manner provided in the statute a case arising in a
State where exclusive jurisdiction of such controversies was
given to an Industrial Commission, as in Wisconsin, because
there is no industrial commission in Massachusetts,1 or in
1 There is an Industrial Accident Board in Massachusetts, and a
Workmen's Compensation Commission in New York, which somewhat
resemble the Industrial Commission of Wisconsin, but there are im-
portant differences in the powers of these bodies. There is a much
greater departure when it comes to questions of practice. The Wisconsin
INTRODUCTION 53
Extra-territorial effect of compensation statutes
New York, such as is created by the Wisconsin statute. In
this connection the decision in a recent case in the New York
Court of Appeals becomes very important. It was therein
declared:
" When the statute creating the right provides an exclusive
remedy, to be enforced in a particular way, or before a
special tribunal, the aggrieved party will be left to the remedy
given by the statute which created the right."
Loomis v. Lehigh Valley R. R. Co., 208 N. Y. 312, at page 332.
The decision from which the above quotation was taken did
not arise under a compensation act. The plaintiff sued the
railroad company to recover the cost of fitting cars, provided
by the company, so as to make them suitable for shipping
grain and other products in bulk. The court held that as to
intrastate shipments the plaintiff could recover, but that as
to interstate shipments the remedy was under Federal laws
and must be enforced in the manner and in the tribunals
particularly specified in the Federal statutes. It was in that
connection that the language quoted was used. The court
itself italicized the words to emphasize their importance.
A few of the compensation acts of the various States leave
the determination of controversies arising thereunder to the
courts. Many of them, however, either create a board, or a
commission, to decide such questions, or specify a particular
court or judge where they may be determined, in a summary
manner, without a jury. In practically every instance, the
procedure would be entirely different from that under the
laws of adjoining States. These considerations apply to
almost any two States which can be mentioned. This would
Act provides that exclusive jurisdiction is conferred upon the Wisconsin
Industrial Commission and, therefore, even if the jurisdiction and practice
of that body were identical in relation to cases arising under the Wiscon-
sin Act with the Massachusetts Industrial Accident Board in relation to
cases arising under the Massachusetts Act, neither would have jurisdiction
over cases arising in the other State in lieu of statutes conferring such
jurisdiction.
54 bradbury's workmen's compensation law
Extra-territorial effect of compensation statutes
seem to be a very practical difficulty tending to the impossi-
bility of the enforcement of the compensation act of one State
in the courts of another State, under the doctrine of Loomis
v. Lehigh Valley R. R. Co., supra. This is a very practical
reason why the rights and remedies under a compensation
law should be considered as resting upon contract. For
should the employe, who is thus injured in Wisconsin, or
Ohio, or Michigan, endeavor in the courts of Massachusetts
to enforce his rights under the Wisconsin, the Ohio, or the
Michigan Act, he will be met with the difficulty that Massa-
chusetts has no legal machinery corresponding to that of
Wisconsin, Ohio and Michigan, to enforce the law in the
manner provided in the statutes of those several States.
Moreover, often it will be a serious question whether or
not the employer is subject to the provisions of the compen-
sation act at all of a State foreign to that of his residence.
This is particularly true in those instances where the em-
ployer must take some affirmative action to indicate his adop-
tion of the compensation principle. Suppose a Massachusetts
employe is sent to Ohio, where he can claim compensation
from the State Fund only, and then only when his employer
either has contributed to the State Fund or is liable for such
a contribution. If the law of the place where the accident
happens applies exclusively, would such an employe1 have a
right to enforce all the drastic provisions of the Ohio law rela-
tive to those who have failed to contribute to the State Insur-
ance Fund, and enforce those drastic laws in the courts of
Massachusetts, against a Massachusetts employer who had
adopted the compensation law of his own State and had fully
complied with its provisions, but who had not adopted the
compensation provision of the Ohio law?
There are many practical difficulties in the way of an em-
ployer adopting the varying compensation provisions of a
dozen, or two dozen, States, when he sends employes to one
or more of them only occasionally. But whether the em-
ployer has or has not adopted the laws of States other than
INTRODUCTION ' 55
Extra-territorial effect of compensation statutes
those of the residence of himself and his workmen, where the
contracts of employment are made, there would in many
cases, be great difficulty in enforcing the law of the State
where the accident happened in the regular Courts of the
State of the employer's residence when the respective laws of
the two States provided entirely different methods of admin-
istering their various statutes. The problem is one which of
course, does not arise under the old employers' liability acts,
for they were all enforced by the regular Courts, by a pro-
cedure which was essentially the same (although differing in
important details) in all the States. The difficulty under the
compensation laws is somewhat the same as was experienced
in attempting to give full faith and credit in one State to cer-
tain equitable decrees of the Courts of another State. It was
sometimes found that the Courts of the State wherein the
decree in equity of another State was sought to be enforced
did not have the judicial machinery to enforce the decree in
the same manner provided in the State in which the decree
was rendered. Equitable decrees therefore have never had
the same standing under the full-faith-and-credit clause of
the Constitution that judgments in actions at law have had.
In Great Britain the conditions are entirely different from
those existing in the American States, although the decisions
hereinbefore cited arose in relation to accidents which hap-
pened entirely outside the United Kingdom. True the
accidents in one of the cases, at least, happened on a British
vessel. Under the decisions in the cases of McDonald v.
Mallory, 77 N. Y. 546, and Crapo v. Kelly, 16 WaU. 610,
it might be that even the Massachusetts Act would be held
to apply in similar circumstances.1 In this respect the
1 The question of jurisdiction in cases in any way involving interstate
or foreign commerce is always a very troublesome one. The Massa-
chusetts Act was amended in 1913 so as to exclude masters and seamen
on vessels engaged in interstate or foreign commerce. L. 1913, c. 568.
The statement in the text is a general one based on the assumption
that the question was not complicated by conflicting jurisdictions over
the subjects of interstate and foreign commerce.
56 bradbury's workmen's compensation law
Extra-territorial effect of compensation statutes
British decisions are in conflict with adjudications of our
Federal Supreme Court. But the principal difference in the
conditions between Great Britian and the United States is
that in the former the Compensation Act applies to the whole
of the territory of the United Kingdom. Thus if an employer
in London sends an employe to Scotland, Wales or Ireland
and he is ther» injured, the Compensation Act applies.
While under the doctrine of Gould v. Sturtevant, supra, if a
Massachusetts employer should send a workman to New
York the Massachusetts Act would have no application
whatsoever and the employe* would have no claim whatsoever
on his employer, unless he could base it on negligence. This,
of course, would be assuming there was no compensation
law in New York.
Therefore, partially receding from the position taken in
the first edition of this work, although that position has been
sustained by eminent authority, it is believed that the doc-
trine which must be established finally will be, in effect,
that the law of the place where a contract of employment is
made will govern the rights and liabilities of employes and
employers to claim and to pay compensation. Sight has not
been lost of the difficulties which the adoption of this doc-
trine will entail in some instances. Thus suppose an em-
ployer, in a State where there is no compensation act,
employs workingmen in that State to go to a State where
there is such an act; what law will then apply? Suppose,
further, that the State to which the workmen are sent
has a law, like that of New Jersey, where there is a pre-
sumptive election to adopt the compensation feature of the
statute? The answer seems to be that until the workmen
reach the border of the State to which they are sent
there is no contract between them and their employers,
relating to compensation, but that the very moment the
workmen pass the State line such a contract is created be-
tween them, by presumption of law. It is freely admitted
that this seems to be inconsistent with the theory that the
INTRODUCTION 57
Extra-territorial effect of compensation statutes
law of the place where the contract of employment is made
is binding on the parties. But the difficulty arises from the
fact that only a portion of the States have enacted compensa-
tion laws. If they all had such statutes the difficulty would
disappear, as a practical matter. At present, while there is
a contract of employment between such employers and em-
ployes, there is none relating to compensation, and the new
contract relating to that subject, which is created by pre-
sumption the moment the employe gets over the border, does
not change the contract of employment, but adds a new one
relating to a different subject. Just what view the different
courts of forty-eight States will take of the rules applicable
to a set of circumstances such as here suggested it is impos-
sible to anticipate. Should proceedings be brought in a State
where the accident happened, and in which a compensation
act containing a presumptive election was in force, as to an
employe who was employed under a contract made in another
State, which had no compensation act, it is believed, in most
cases, it would be held that the compensation law of the State
where the accident happened applied. If, however, under the
same circumstances, the proceeding should be brought in the
State where the contract was made, but which had no com-
pensation law, the result would be more doubtful. One New
York Court has already held, in a somewhat similar case,
that it would not enforce the New Jersey Compensation Act
in default of a showing that the contract of employment was
made in New Jersey. Pensabene v. Auditore Co., 2 Bradbury's
PI. & Pr. Rep., p. 212; 155 App. Div. 368; 140 Supp.268.
In the case of Whitford v. The Panama Railroad Co., 23
N. Y. 465, the Court said, at page 471 :
"It is no doubt within the competency of the Legisla-
ture to declare that any wrong which may be inflicted
upon a citizen of New York abroad, may be redressed
here according to the principles of our law, if the wrong-
doer can be found here, so as to be subjected to the
58 bradbury's workmen's compensation law
Extra-territorial effect of compensation statutes
jurisdiction of our courts; but as we could not by any
legislation of this kind put an end to the liability of the
party to the lex loci, or divest the foreign government of
its jurisdiction over the case, such a statute would
rarely be just in its operation, and would be more likely
to lead to confusion and oppression than to any bene-
ficial results. *Hence, legislation of the kind suggested
has not found any place in the statute books of modern
nations, except in the case of laws respecting the army
and navy, which, when operating abroad, must of course
be governed by the laws enacted by the government of
the country which sends them forth, and except also
in regard to foreign commerce prosecuted in our own
vessels. In such cases the fleets and armies, and ships
of commerce carry with them the nationality which
originally belonged to them. Prima facie all laws are
coextensive, and only coextensive with the political
jurisdiction of the law-making power. (Story's Confl.
Laws, §§ 18-20; United States v. Bevans, 3 Wheat. 336,
386; 3 Dall. 320. Translations from Huberus; Bank of
Augusta v. Earle,13 Pet. 519.) This limitation upon the
operation of the laws of a country is quite consistent
with the practice which universally prevails, by which
the courts of one country entertain suits in relation to
causes of action which arise in another country, when
the parties come here so as to be made subject to their
jurisdiction. Whatever liability the defendants in-
curred by the laws of New Grenada, by the act men-
tioned in the complaint, might well be enforced in the
courts of this State; the defendant as a domestic cor-
poration being readily compellable to answer here.
But the rule of decision would still be the law of New
Grenada, which the court and jury must be made ac-
quainted with by the proof exhibited before them."
Doubtless the above statement of the law from the Whit-
INTRODUCTION 59
Extra-territorial effect of compensation statutes
ford case would apply to-day, provided a claim under a
compensation act is considered based upon a tort. If, on
the other hand, it is based on a contract, there is no more
reason why a contract made in New York should not be en-
forced in New Jersey and vice versa, in relation to com-
pensation for injuries, than there is why a promissory note or
a contract for services made in one of these States should not
be enforced in the other.
II
Coming to paragraph II of the questions stated at the
beginning of this subdivision, that is, as to when the Courts
of one State will enforce the compensation laws of another
State, in relation to accidents which happen within the
boundaries of the State the law of which it is sought to en-
force, or within the boundaries of a third State, the few de-
cisions thus far made are neither final nor satisfactory. For
example, where an accident happens to an employe" in New
Jersey when the contract of employment was made in that
State, and both employer and employ e" were subject to the
provisions of the law of that State, will the Courts of New
York entertain jurisdiction of an action or proceeding by the
employe based on the New Jersey Workmen's Compensation
statute?
Again, under subdivision (c) of question II, above, assume
that both employer and employe" were residents of and sub-
ject to the provisions of the New Jersey Workmen's Compen-
sation Act, and that the employe" was sent to the State of
Pennsylvania on the business of the employer, and there in-
jured, would the Courts of New York entertain an action or
proceeding by the employe" against the employer, to enforce
the provisions of the New Jersey Workmen's Compensation
Act?
The New York Court of Appeals has recently said:
"It is now recognized that the jurisdiction of State
courts extends to the hearing and determination of any
60 Bradbury's workmen's compensation law
Extra-territorial effect of compensation statutes
civil and transitory cause of action created by a foreign
statute, provided it is not of a character opposed to the
public policy of the State in which the suit is brought.
When the statute creating the right provides an exclusive
remedy, to be enforced in a particular way, or before a
special tribunal, the aggrieved party will be left to the remedy
given by the statute which created the right." Loomis v.
Lehigh Valley^R. R. Co., 208 N. Y. 312, at page 332.
The italics were inserted by the Court. That case did not
arise under a workmen's compensation act. The action was
brought to enforce the common-law liability of a common
carrier to furnish proper cars to transport the kind of freight
which it agreed to transport. Certain of the shipments were
interstate and certain others intrastate. The Court held
that as to the intrastate shipments the liability could be en-
forced, but as to the interstate shipments the matter was
governed by the Federal law and the remedy of the plaintiff
must be secured in the manner provided by the Federal
statute. The words in italics are significant. The Court
pointed out that the plaintiff must go to the Federal Courts
to enforce the liability of the defendant in relation to inter-
state shipments.
The general principle to be found in the cases is that the
courts of New York, for example, will enforce the laws re-
lating to master and servant, by reason of accidents occurring
in another State, if New York has laws which are similar, but
not necessarily identical, with those of that former State, and
such statutes are not opposed to public policy or to abstract
justice or pure morals. Wooden v. Western N. Y., etc. R. Co.,
126 N. Y. 10; Howlan v. New York & New Jersey Telephone
Co., 131 App. Div. 443; 115 Supp. 316; Payne v. New York,
Susquehanna & W. R. Co., 201 N. Y. 436; Zeikus v. Florida
East Coast Ry. Co., 153 App. Div. 345; 138 Supp. 478; Second
Employers' Liability Cases, 223 U. S. 1; Hutchinson v. Ward,
192 N. Y. 375, 381 ; Marshall v. Sherman, 148 N. Y. 9. The
INTRODUCTION 61
Extra-territorial effect of compensation statutes
same doctrine seems to be confirmed by the case of Loomis v.
Lehigh Valley R. R. Co., supra.
Several decisions in New York seem to indicate that the
courts of that State at least will enforce the workmen's com-
pensation act of other States, and even of foreign countries,
although several important questions yet remain undeter-
mined. In Albanese v. Stewart, 2 Bradbury's PI. & Pr. Rep.,
189, it was held that in an action by an employe" against his
employer, for injuries alleged to have been caused by the
negligence of the defendant in New Jersey, that a defense,
as a bar to the action, that the plaintiff's remedy was limited
exclusively to the Workmen's Compensation Act of New
Jersey was upheld.
In Schweitzer v. Hamburg American Line, 3 Bradbury's
PI. & Pr. Rep. 285; 78 Misc. 448; 138 Supp. 944, it was held
that a defense based on the contention that the plaintiff's
exclusive remedy was under the German Workmen's Com-
pensation Act was upheld. It appeared that the plaintiff,
a German subject, was employed in a German port, on a
German vessel, for the trip between the German port and
New York and return. The injury, of which complaint was
made, was caused by the alleged negligence of the defendant
while the ship was in New York Harbor. The same case was
before the Appellate Division on an appeal from an earlier
decision relating to a motion on the pleadings. 149 App. Div.
900; 134 Supp. 812. The Appellate Court specifically re-
served the question of law involved and merely held that
the plaintiff should be compelled to reply to the new matter
set up in the answer, which new matter consisted of the
defense that the plaintiff's sole remedy must be based on the
German Workmen's Compensation Act.
In the case of Pensabene v. Auditore Co., 2 Bradbury's PI.
& Pr. Rep. 197, and the same case on appeal to the Appellate
Division, 2 Bradbury's PL & Pr. Rep. 212, the plaintiff, as a
dependent of a workman who had been killed in New Jersey,
brought an action for compensation in the New York Courts
62 bradbtjry's workmen's compensation law
Extra-territorial effect of compensation statutes
based upon the provisions of the New Jersey Workmen's
Compensation Act. The question was raised in this case on
a demurrer to the complaint. In the lower Court it was held
that the action could be maintained. The principal question
was left undecided in the appellate court, it being held simply,
that the complaint was insufficient, because no allegation was
contained therein to the effect that the contract of employ-
ment was made in New Jersey.
None of the decisions cited, therefore, can be considered as
final authorities. So far as the lower courts have gone they
have held that an action can be maintained affirmatively to
enforce the provisions of the New Jersey Workmen's Com-
pensation Act, and also that when an action is brought in
New York for common-law damages, that the plaintiff will
be relegated to his remedy under the foreign workmen's
compensation act.
Under the Massachusetts Workmen's Compensation Act,
requiring the giving of notice by an employe to an employer
who has adopted the compensation principle by taking out
liability insurance, it has been held that an employe* of such
an employer sustaining an injury in Massachusetts may not
sue in Rhode Island without alleging and proving the giving
of a notice required by the statute. Pendar v. H. & B.
American Mach. Co., Rhode Island ; 87 Atl. Rep. 1.
The Kansas Act provides specifically that:
"No action or proceeding provided for in this Act
shall be brought or maintained outside of the State of
Kansas, and notice thereof may be given by publication
against non-residents of the State in the manner now
provided by Article 7, of Chapter 95, General Statutes
of Kansas 1909 so far as the same may be applicable,
and by personal service of a true copy of the first publi-
cation within twenty-one days after the date of the said
first publication unless excused by the court upon proper
showing that such service cannot be made." § 36.
INTRODUCTION 63
Actuarial principles underlying State insurance laws
From numerous adjudications of the United States Supreme
Court and other tribunals it would appear that such service
as is provided for in the section quoted above on non-residents
of the State of Kansas would be of no avail so far as en-
forcing the judgment in personam against the employer is
concerned, unless the plaintiff could secure a lien on the de-
fendant's property in Kansas by attachment or other similar
process, and then only to the extent of the property seized.
Whether the New York Courts would entertain an action
or proceeding under the New Jersey Act, when the accident
happened in Pennsylvania, would, of course, depend upon
the ultimate detennination of the question discussed in
paragraph I of this subdivision. Should it be held finally
that the New Jersey Compensation Act creates a contractual
relation between employer and employe, which governs an
injury suffered while the employe is out of the State of New
Jersey, then the further question of whether or not New
York Courts would entertain jurisdiction of a proceeding
under the New Jersey Act would not be affected by consider-
ation of the place where the accident happened. If the con-
trary doctrine is established the New York Courts might
still entertain a proceeding under the New Jersey Act when
the accident happened in New Jersey.
2. Actuarial principles underlying State insurance laws.
The actuarial principles underlying the State insurance
laws thus far enacted are of great importance to both em-
ployers and employes. The problems they present in the
United States are different from those found in any other
country. This is due to the fact that a State insurance law
can be effective only within the territorial limits of the com-
monwealth in which it is enacted.
Considerable danger lies in the fallacy which wrecked so
many of the old mutual and fraternal Hfe and accident in-
surance companies and associations. There is always a
tendency to collect small premiums to pay for current losses
64 bbadbuby's wobkmen's compensation law
Actuarial principles underlying State insurance laws
only, and not accumulate sufficient reserves to pay deferred
claims. So long as those old mutual companies and fraternal
associations were increasing in size they were able to meet
their liabilities. Just as soon, however, as they reached a
point where there was little or no further increase in the
membership, or when the membership began to fall off,
then they invariably had trouble. One of the greatest prob-
lems which the American States have had, in relation to
insurance, has been to compel such associations to collect
premiums large enough to keep them solvent.
The public generally always has been attracted by low
insurance rates and those who have taken policies have not
always used wise discrimination to inquire whether or not
there would be enough money to pay should a loss occur.
The same spirit, to some extent, has animated the establish-
ment of State insurance funds. Inasmuch as the insurance is
now for the benefit of the workmen, although taken out by the
employer, strict public supervision is essential. The tendency
has been to collect just enough to pay current losses instead
of having the premiums sufficient to capitalize deferred pay-
ments. Of course, the stock liability insurance companies
have been forced by law to do business on an entirely dif-
ferent basis. They have been compelled to collect sufficient
premiums to lay aside reserves to meet all the claims out-
standing, so as to escape bankruptcy. The most important
duty of the numerous insurance commissioners has been to
watch the finances of the various companies to see that they
did not become insolvent.1
1 "As I have frequently said, I am no advocate of strict insurance super-
vision as such. There should be just as little of it as we can possibly get
along with. Insurance supervision, as I look at it, is not primarily intended
for the strong, well-established companies at all. Its primary purpose is
to shut out the frauds and cheats and fly-by-nights from trying to sell
worthless insurance to credulous people. But, of course, it is impractical
to draw any line of distinction between companies which might safely be
allowed to paddle their own canoes and companies which have to be
INTRODUCTION 65
Actuarial principles underlying State insurance laws
It is the easiest thing in the world to start an insurance
company, provided adequate reserve rules are not enforced.
There is always a large present payment of cash in the
treasury, and the losses are necessarily deferred. This is
especially true in compensation cases where the losses are
paid in weekly installments over a long period of years.
Many who have not understood clearly the principle in-
volved in such cases have been quick to advocate the
establishment of a State insurance fund without adequate
provisions for reserves to meet deferred claims, but only suffi-
cient to meet current losses. Such a fund is insolvent from
its inception, considered from an actuarial standpoint. As
the deferred payments begin to mount up they are con-
stantly added to by current losses and the sums which
must be collected in premiums must, naturally, be greatly
increased also.
Those who advocate such a plan point to the fact that it
has been established in Germany, and apparently has worked
well. The truth of it is that many of those who have given
close thought to the subject in Germany are yet fearful of the
final outcome. Moreover, Germany has found it absolutely
essential in some occupations, such as the building trades,
for example, to abandon the old plan and collect premiums
on a capitalized basis. But those who cite Germany as an
example to be followed in the American States are very
shortsighted. With the principle of absolutism which pre-
vails over the entire country in the German Government
watched closely. Any rules that are laid down must apply to all alike.
For that reason, the strong companies should willingly undergo what
sometimes may seem to them to be unnecessary exactions on the part of
government. I am inclined to think that even the best managed com-
panies find that the co-operation they get from the stronger State insur-
ance departments in their efforts to solve the outstanding insurance
problems which still await a settlement is of material assistance to them."
From an address by Hon. William Temple Emmet, Superintendent of
Insurance of the State of New York before the Insurance Society of
New York, on Oct. 28, 1913.
5
66 BRADBURY'S WORKMEN'S COMPENSATION LAW
Actuarial principles underlying State insurance laws
that country is able to do many things in this direction which
would be impossible of accomplishment in America, with our
varied laws and conflicting jurisdictions due to State boun-
daries. Germany can bring enough establishments engaged
in a particular trade or occupation within the operations of
a particular insurance association so as to produce a sound
actuarial insurajice average. Any increase in subsequent
years, due to insufficient premium collections in the earlier
years, falls on the entire trade. Even in Germany there has
been bitter complaint by employers who continued in busi-
ness in being compelled to pay compensation to employes
of concerns which have gone out of business.
In America the conditions are radically different from
those existing in Germany. There is such a small representa-
tion of many trades in particular States that no sound
actuarial insurance basis can be secured. For example,
where there are only two or three industries in a State, which
are classified together for industrial insurance purposes in a
State insurance fund, it means that these two or three estab-
lishments in that particular trade are, to all practicable pur-
poses, carrying their own insurance. If premiums sufficient
to pay current losses only are collected from these few estab-
lishments the time will come, within a few years, when the
premium rate will be so high that it will be almost imprac-
ticable to create new establishments or for the old ones to
continue in the same fine of business in that particular
State. This is especially true if the same trades have been
carried on in adjoining States under a plan whereby in the
years gone by sufficient premiums have been collected to pay
not only current losses but deferred claims as well, on the
old-line insurance plan. That is, in the State where suffi-
cient premiums have been collected in the past, so that there
is, with slight variations, a level premium for the years gone
by, as well as for the future years, the industries in such
States will be in a much stronger position than in the com-
monwealths where only sufficient has been collected to pay
INTRODUCTION 67
Actuarial principles underlying State insurance laws
current losses. In other words, in the States where a level
premium has been maintained this premium at the end of
ten or fifteen years will be very much less than it will be
necessary to collect from the same industries in the States
where only sufficient has been collected to pay current
losses, leaving the accrued and accruing claims of employes
injured while employed by employers who have died, gone
out of business or become bankrupt to be paid by those who
continue in the same line of business. The inevitable result
of this condition of affairs is perfectly obvious. The indus-
tries of those States where the current premium principle
has been in force will find that their premiums for workmen's
compensation protection will have increased in ten or fifteen
years so that they will be utterly unable to compete with the
industries in the States where a level premium on a capi-
talized basis has been maintained. The industries in the
States where the current loss premium principle has been
invoked will find it necessary in ten or fifteen years to either
go out of business or move to the States where the level
premium principle has been in force. It will be no more
possible to avoid the effect of this than it will be to escape
from the penalty for a violation of one of Nature's laws.
In those States where there are few establishments in a
particular line one or two bad losses will bankrupt the State
insurance fund as to that trade or industry if the fund is seg-
regated for the payment of losses as well as the collection of
premiums. If such a segregation is not made as to payment
of losses then the other trades of which there may be a con-
siderable number will be compelled to pay the losses of those
occupations of which there are only a few establishments. All
of which is merely another proof of difficulty of securing a
proper or safe average in relation to workmen's compensation
insurance within the limits of a single State of the Union.
An attempt has been made to avoid the difficulty by
classifying together those trades or occupations in which
the premium rate is approximately the same irrespective
68 bradbury's workmen's compensation law
Actuarial principles underlying State insurance laws
of the natural relation of the trades thus brought together
each to the others. Some such plan was absolutely necessary
to obviate the difficulties suggested. The experiment will
be watched with interest.
CHAPTER II
ABOLITION OF DEFENSES
Page
ARTICLE A— Introduction 69
1. Reason foe Abolishing the Common-law Defenses 69
ARTICLE B — Specific Provisions of Various Statutes 71
Page Page
Arizona 71 Nevada 92
California 74, New Hampshire 93
Connecticut 78 New Jersey 94
Illinois 79 New York 96
Iowa 81 Ohio 97
Kansas 82 Oregon 98
Maryland 86 Rhode Island 99
Massachusetts 87 Texas 100
Michigan 88 Washington 101
Minnesota 89 West Virginia 102
Nebraska 91 Wisconsin 103
ARTICLE A— INTRODUCTION
1. Reason for abolishing the common-law defenses.
Many of the so-called common-law defenses, the origin and
development of which are fully discussed in Chapter I, were
greatly modified, and, in some rare instances, entirely
abolished, before the compensation statutes were enacted.
The alternative abolition of these defenses in the compensa-
tion acts was hit upon as a plan to escape the constitutional
question raised in the case of Ives v. South Buffalo Ry. Co.,
201 N. Y. 271. In that case it was held that a mandatory
compensation law was unconstitutional. 1 The Legislature
of New Jersey thereupon passed an optional compensation
statute, under which if an employer failed to adopt the
1 See the discussion beginning ante, page 11.
69
70 bradbury's workmen's compensation law
Reason for abolishing the common-law defenses
compensation principle, the common-law defenses of as-
sumption of risk and negligence of fellow servant were
abolished and the defense of contributory negligence was
greatly modified in actions by employes against him for
personal injuries due to negligence. Many of the other
States followed the example of New Jersey.
Recently se-weral- Commonwealths have adopted consti-
tutional amendments permitting the Legislature to enact
compulsory workmen's compensation statutes. Where these
constitutional amendments have been adopted, the Legis-
lature may enact compulsory compensation laws and is
not driven to the necessity of taking this means of com-
pelling employers to adopt the compensation principle.
Only a few States have adopted such constitutional amend-
ments thus far. In many of them the expedient is still em-
ployed of forcing employers to adopt the compensation
principle by abolishing their common-law defenses.
In some of the statutes the question whether or not the
employe" has elected to accept or refuse compensation has a
bearing on the subject. Some of the acts provide that if the
employer elects to adopt the compensation principle and an
employe1 of such an employer refuses to accept compensation
in lieu of damages, then in any action by such an employe
the employer may have the benefit of the common-law de-
fenses. The statutes are not uniform, however. In some of
them the defenses are absolutely abolished. In such cases,
if the statute is elective, the employe may elect to refuse
compensation and sue for damages and still the employer is
deprived of the privilege of interposing the common-law
defenses.
In the following pages the question is discussed under the
title of each State, showing exactly what the law is in the
several Commonwealths at the present time.
While compensation is paid irrespective of the negligence
of the employer there are still certain defenses which are
applicable to the purely compensation features of the stat-
ABOLITION OF DEFENSES 71
Arizona
utes. Thus it is usually provided that compensation shall be
refused when the injury is intentionally inflicted. The
same result follows, according to some of the acts, if it was
caused by intoxication or wilful misconduct. Such defenses
are discussed in their appropriate places. The present
chapter deals only with the abolition of the so-called
common-law defenses in actions for damages when employers
or employes are, for any reason, not bound by the compensa-
tion features of the statute which governs their relations.
ARTICLE B— SPECIFIC PROVISIONS OF VARIOUS STATUTES
ARIZONA
The workmen's compensation feature of the Arizona
statute is compulsory in form. It is not necessary, therefore,
to abolish the common-law defenses as an inducement to
compel employers to adopt the compensation principle. The
subject is complicated somewhat in Arizona, however, by the
fact that there are two general statutes governing the relation
of employers and employes which must necessarily be read
together. The Workmen's Compensation Act proper, which
is Chapter VII of the codification of the Laws of 1913, relat-
ing to Employer and Employe, provides that employers in
certain specified trades shall pay compensation to their em-
ployes according to a schedule contained in that chapter.
By Section 68 of Chapter VII, it is further provided that,
"In case such employe1 or his personal representative shall
refuse to settle for such compensation (as provided in Section
8 of Article XVIII of the State Constitution), and chooses to
retain the right to sue said employer (as provided in any law
provided for in Section 7, Article XVIII of the State Con-
stitution) he may so refuse to settle and may retain said
right."
Therefore, the above section gives the employ^ the right
to elect, after the accident, whether he will claim under the
compensation law or will sue for damages under the Em-
72 bradbury's workmen's compensation law
Arizona
ployers' Liability Act, which is Chapter VI of the revision of
1913. Of course, if he accepts compensation no question of
common-law defenses arises. But by Chapter VI of the
revision of 1913, relating to Employer and Employe^ the
employe may sue the employer for unlimited damages in all
cases where the employer is engaged in so-called hazardous
occupations specified in this Chapter. The so-called hazard-
ous occupations specified in Chapter VI are exactly the same
hazardous occupations that are specified in Chapter VII,
which latter chapter is the Compensation Act proper.
According to the provisions of Chapter VI the right of action
exists after a death or injury "caused by any accident due to
a condition or conditions of such occupation, of any employe
in the service of such employer in such hazardous occupation,
in all cases in which such death or injury of such employe
shall not have been caused from the negligence of the employe
killed or injured." From the foregoing it appears that any
employe may refuse to accept the compensation principle
and sue under the Employers' Liability Act, and while the
employer can set up the defenses of contributory negligence
and assumption of risk these defenses are so strictly regulated
in Section 61 of Chapter VI as to be of little value to the
employer. The section provides:
"In all actions hereafter brought against any such employer
under or by virtue of any of the provisions of this chapter to
recover damages for personal injuries to any employe^ or
where such injuries have resulted in his death, the question
whether the employe" may have been guilty of contributory
negligence, or has assumed the risk, shall be a question of
fact and shall at all times, regardless of the state of the evidence
relating thereto, be left to the jury, as provided in Sec. 5, of
Article XVIII of the State Constitution; provided however,
that in all actions brought against any employer, under or by
virtue of any of the provisions of this chapter to recover
damages for personal injuries to an employ^, or where such
injuries have resulted in his death, the- fact that the employe"
ABOLITION OF DEFENSES 73
Arizona
may have been guilty of contributory negligence shall not
bar a recovery, but the damages shall be diminished by the
jury in proportion to the amount of negligence attributable
to such employeV'
While the section last above quoted speaks of the question
of whether or not the employe1 "assumed the risk" there is
nothing else in the statute that would indicate that assump-
tion of risk is a defense in any case, although there is such a
provision in the Constitution.1 Section 57 of Chapter VI pro-
vides that the employer shall pay damages in all cases except
where the injury or death is caused by the negligence of the
employe1 killed or injured.
It would seem, therefore, that the defense of contributory
negligence is never a complete defense, but only operates to
diminish the award of damages in such proportion as the jury
may determine; that the defense of assumption of risk is left
to the jury in all cases and that the defense of negligence of
a fellow servant is completely abolished. These rules apply
to all actions for damages for personal injuries caused by
negligence by an employ^ against an employer whether or
not the parties are engaged in the so-called hazardous em-
ployments specified in Chapters VI and VII.
Sections 4, 5, 6, 7 and 8 of Article XVIII of the Constitu-
tion of Arizona provide as follows:
"Sec. 4. The common-law doctrine of fellow servant, so
far as it affects the liability of a master for injuries to his ser-
vant resulting from the acts or omissions of any other servant
or servants of the common master is forever abrogated.
"Sec. 5. The defense of contributory negligence or of assump-
tion of risk shall, in all cases whatsoever, be a question of fact
and shall, at all times, be left to the jury.
"Sec. 6. The right of action to recover damages for injuries
shall never be abrogated, and the amount recovered shall not
be subject to any statutory limitation.
"Sec. 7. To protect the safety of employes in all hazardous
'See below.
74 bradbury's workmen's compensation law
California
occupations, in mining, smelting, manufacturing, railroad or
street railway transportation, or any other industry the Legis-
lature shall enact an Employer's Liability law, by the terms of
which any employer, whether individual, association, or cor-
poration shall be liable for the death or injury, caused by any
accident due to a condition or conditions of such occupation,
of any employ^ in the service of such employer in such hazard-
ous occupation, in all cases in which such death or injury of
such employe" shall not have been caused by the negligence of
the employe killed or injured.
"Sec. 8. The Legislature shall enact a Workmen's Com-
pulsory Compensation law applicable to workmen engaged in
manual or mechanical labor in such employments as the Legis-
lature may determine to be especially dangerous, by which
compulsory compensation shall be required to be paid to any
such workman by his employer, if in the course of such em-
ployment personal injury to any such workman from any
accident arising out of, and in the course of, such employ-
ment is caused in whole, or in part, or is contributed to, by a
necessary risk or danger of such employment, or a necessary
risk or danger inherent in the nature thereof, or by failure of
such employer, or any of his or its officers, agents, or employe^
or employes, to exercise due care, or to comply with any law
affecting such employment; Provided, that it shall be optional
with said employe to settle for such compensation, or retain
the right to sue said employer as provided by this Constitu-
tion."
CALIFORNIA
The new compensation act (L. 1913, c. 176), becoming
effective Jan. 1, 1914, is a compulsory workmen's compensa-
tion law as to all employers and employes except those ex-
cluded by § 14, and an elective law as to the occupations
specified in § 14. The manner of electing to adopt the com-
pensation principle by those in the excluded occupations is
specified in § 87.
Where both employer and employe* have adopted the com-
pensation principle the right to demand compensation is
ABOLITION OF DEFENSES 75
California
exclusive except when the injury is caused under the cir-
cumstances specified in § 12 (b) relating to gross negligence
or willful misconduct on the part of the employer, in which
case the employ! may "at his option, either claim compensa-
tion under the act or maintain an action at law for damages."
It is left somewhat uncertain, under the law as it now
stands, whether the common-law defenses of the employer
are abolished when an action is brought under § 12 (b),
or by an employ! in the excepted classes specified in § 14
when the employer has failed to signify his election to adopt
the compensation principle.
This doubt arises from the uncertainty as to whether or
not the Roseberry Act of 1911 is entirely repealed by the
Act of 1913. There is nothing in the Act of 1913 relating to
the abolition of common-law defenses. The Roseberry Act
of 1911 was elective, but applied to all occupations and
specified that such employers as failed to adopt the com-
pensation principle should not be permitted to set up the
common-law defenses in actions against them by their em-
ployes. The Act of 1913, in § 90 thereof, provides that
"All acts or parts of acts inconsistent with this Act are hereby
repealed." As there is nothing in the new Act concerning
the abolition of defenses in common-law actions it is not in
all respects inconsistent with that portion of the Roseberry
Act of 1911, which abolishes common-law defenses under
certain circumstances. Following this reasoning the Cali-
fornia Industrial Accident Board has held that an employer's
common-law defenses are abolished as to both of these
classes of employers. The Board holds that that portion of
the Roseberry Act of 1911, which abolishes common-law
defenses is still in force, as it is not "inconsistent" with the
Act of 1913. If employers employing workmen in the ex-
cepted classes specified in § 14 do not elect, under § 87,
to adopt the compensation principle, they are deprived of
their common-law defenses in actions by their workmen
against them.
76 bradbury's workmen's compensation law
California
Actions under § 12 (b) rest on a somewhat different
basis. Subdivision (c) of § 12 provides that "In all cases
where the conditions of compensation do not concur, the
liability of the employer shall be the same as if this Act had
not been passed." It is to be assumed from the Ruling of
the Board that when an employe" has a right to sue for dam-
ages, under § 12*(b), that "the conditions of compensa-
tion do not concur," and therefore the employe's rights
revert back to so much of the Roseberry Act as have not
been repealed by the Act of 1913. Under § 3 (3) of the
Roseberry Act an employe might sue for damages in cases
of the gross negligence of the employer and that section of
the former Act specifically provided that in such actions
the "preceding sections" of the Act should apply. Among
the preceding sections were those abolishing the common-
law defenses. As most of §§ 1, 2 and 3 of the Roseberry
Act of 1913 are held by the Industrial Accident Board to be
still in force they are printed below.
ROSEBERRY ACT
CHAPTER 399, LAWS 1911
[Approved April 8, 1911]
"Section 1. In any action to recover damages for a personal
injury sustained within this State by an employee while en-
gaged in the line of his duty or the course of his employment as
such, or for death resulting from personal injury so sustained,
in which recovery is sought upon the ground of want of
ordinary or reasonable care of the employer, or of any officer,
agent or servant of the employer, the fact that such employee
may have been guilty of contributory negligence shall not bar
a recovery therein where his contributory negligence was
slight and that of the employer was gross, in comparison, but
the damages may be diminished by the jury in proportion to
the amount of negligence attributable to such employee, and
it shall be conclusively presumed that such employee was not
guilty of contributory negligence in any case where the viola-
ABOLITION OF DEFENSES 77
California
tion of any statute enacted for the safety of employees contri-
buted to such employee's injury; and it shall not be a defense:
"(1) That the employee either expressly or impliedly
assumed the risk of the hazard complained of.
" (2) That the injury or death was caused in whole or in
part by the want of ordinary or reasonable care of a fellow
servant.
"Sec. 2. No contract, rule or regulation, shall exempt the
employer from any of the provisions of the preceding section
of this act.
"Sec. 3. Liability for the compensation hereinafter pro-
vided for, in lieu of any other liability whatsoever, shall, with-
out regard to negligence, exist against an employer for any
personal injury accidentally sustained by his employees, and
for his death if the injury shall approximately cause death, in
those cases where the following conditions of compensation
concur:
" (1) Where, at the time of the accident, both the employer
and employee are subject to the provisions of this act accord-
ing to the succeeding sections hereof.
"(2) Where, at the time of the accident, the employee is
performing service growing out of and incidental to his em-
ployment and is acting within the line of his duty or course of
his employment as such.
" (3) Where the injury is approximately.caused by accident,
either with or without negligence, and is not so caused by the
wilful misconduct of the employee.
"And where such conditions of compensation exist for any
personal injury or death, the right to the recovery of such
compensation pursuant to the provisions of this act, and acts
amendatory thereof, shall be the exclusive remedy against the
employer for such injury or death, except that when the injury
was caused by the personal gross negligence or wilful personal
misconduct of the employer, or by reason of his violation of
any statute designed for the protection of employees from
bodily injury, the employee may, at his option, either claim
compensation under this act, or maintain an action for dam-
ages therefor; in all other cases the liability of the employer
shall be the same as if this and the succeeding sections of this
78 bradbury's workmen's compensation law
Connecticut
act had not been passed, but shall be subject to the provisions
of the preceding sections of this act."
CONNECTICUT
Under the Connecticut Compensation Act, if the employer
elects to accept the compensation principle and complies
with Part B, § 30, he has the benefit of the common-law
defenses, no matter what the employe may elect to do. If,
however, the employer rejects the compensation principle
or fails to comply with Part B, § 30 then his common-law
defenses are abolished in any action which an employe may
bring against him based on negligence causing personal
injury. Part B, §§ 4, 42.
Such defenses are not abolished, however, as to employers
"having regularly less than five employes." Nor in relation
to suits by casual employes or outworkers. Part A, § 2.
The portion of the statute relating to this subject provides
as follows:
"Part A, Section 1. Defenses Abolished. In an action to
recover damages for personal injury sustained by an employee
arising out of and in the course of his employment, or for
death resulting from injury so sustained, it shall not be a
defense: (a) That the injured employee was negligent; (b)
that the injury was caused by the negligence of a fellow
employee; (c) that the injured employee had assumed the risk
of the injury.
"Sec. 2. Scope of Part A. The provisions of section one of
part A of this act shall not apply to actions to recover damages
for personal injuries sustained by employees of any employer
having regularly less than five employees, by casual employees,
or by outworkers; nor shall the same provisions apply to
actions against any employer who shall have accepted part B
of this act in the manner hereinafter prescribed."
"Part B, Sec. 4. Effect of Non-Acceptance. Every em-
ployer not accepting part B of this act shall be liable to action
for damages on account of personal injury to his employees in
accordance with the provisions of part A of this act, and
ABOLITION OF DEFENSES 79
Illinois
every employee not accepting part B of this act shall lose all
rights and benefits of part A of this act with reference to any
employer who continues to accept said part B."
If an employer who has otherwise elected to adopt the
compensation principle fails to effect proper insurance, or to
satisfy the compensation commission of his financial ability
to carry his own insurance, for the benefit of his employes
relating to compensation payments, he is deprived of his
right to interpose the common-law defenses, besides being
subject to other penalties. Part B, § 42.
ILLINOIS
The Act approved June 28, 1913, which materially amends
the original Act of June 10, 1911, which went into effect May
1, 1912, divides the employers of the State into two general
classes. As to the employers specified in § 3 (6) of the Act,
if they do not elect to adopt the compensation principle they
are not permitted in actions against them by their employes
to set up the defenses:
"First, the employ6 assumed the risks of the employment;
second, the injury or death was caused in whole or in part by
the negligence of a fellow servant; or third, the injury or death
was proximately caused by the contributory negligence of the
employe." § 3 (a).
As to all employers other than those specified in § 3 (6)
they may or may not adopt the compensation principle as
they please, and if they do not adopt it there is no penalty
provided. That is, as to the second class of employers, even
though they do not elect to adopt compensation they still
have the right to set up the common-law defenses in actions
by their employes against them.
As to the first class of employers if they elect to adopt the
compensation principle and any of their employe's refuse to
accept compensation and stand on their common-law rights,
80 Bradbury's workmen's compensation law
Illinois
then as to such employes the employers may still set up the
common-law defenses the same as if the compensation act
had not been passed. § 1 (c).
In Illinois it is very difficult to determine just which em-
ployers come within the provisions of class One. Section
3 (6) specifies certain trades, the employers of which are in-
cluded in class Ope, and then the following three paragraphs
are added:
"6. Any enterprise in which explosive materials are manu-
factured, handled or used in dangerous quantities;
"7. In any enterprise wherein molten metal, or explosive
or injurious gases or vapors, or inflammable vapors or fluids,
or corrosive acids, are manufactured, used, generated, stored
or conveyed in dangerous quantities;
"8. In any enterprise in which statutory or municipal
ordinance regulations are now or shall hereafter be imposed
for the regulating, guarding, use or the placing of machinery
or appliances, or for the protection and safeguarding of the em-
ployes or the public therein; each of which occupations, en-
terprises or businesses are hereby declared to be extra-
hazardous."
There are so many "enterprises" which are subject to
statutory or municipal ordinance or regulation that it would
be well nigh impossible to make a complete list thereof.
Many employers, therefore, will always be in doubt whether
they are in class One or class Two, under the Illinois Act, and
will not know whether they will have the right to set up the
common-law defenses or not, should they decide not to adopt
the compensation principle. The author has made an effort
to get together all the statutes of the State of Illinois which
might come within the provisions of § 3 (6) 8. But after
using his own efforts and taking the advice of eminent local
counsel he is still uncertain as to whether or not the list which
he has made is complete. These statutes and regulations
would make a good-sized volume.
ABOLITION OF DEFENSES 81
Iowa
"Any person whose employment is but casual or who is
not engaged in the usual course of the trade, business, pro-
fession or occupation of his employer" is excluded from the
operation of the Act. § 5, subd. second. As to actions by
such employes therefore the common-law defenses are not
abolished.
IOWA
If an employe rejects the terms of the Act as to an em-
ployer who has elected to pay compensation "the employer
shall have the right to plead and rely upon any and all
defenses including those at common-law, and the rules and
defenses of contributory negligence, assumption of risk and
fellow servant shall apply and be available to the employer
as by statute authorized unless otherwise provided in this
Act." See §3 (b).
If both the employer and employe reject the Act the
liability of the employer is the same as though the employ^
had not rejected it. § 5.
If the employer fails to insure compensation claims he is
liable under § 1 of the Act without the right to set up the
common-law defenses. Part III, § 42.
The Statute reads as follows:
"§ 1. * * * (c) An employer having the right under the
provisions of this act to elect to reject the terms, conditions
and provisions thereof and in such cases exercises the right in
the manner and form by this act provided, such employer
shall not escape liability for personal injury sustained by an
employ6 of such employer when the injury sustained arises out
of and in the usual course of the employment because:
"(1) The employe assumed the risks inherent in or inci-
dental to or arising out of his or her employment; or the risks
arising from the failure of the employer to provide and main-
tain a reasonably safe place to work, or the risks arising from
the failure of the employer to furnish reasonably safe tools or
appliances, or because the employer exercised reasonable care
6
82 bradbuby's workmen's compensation law
Kansas
in selecting reasonably competent employes in the busi-
ness:
"(2) That the injury was caused by the negligence of a
co-employe.
" (3) That the employe was negligent unless and except it
shall appear that such negligence was willful and with intent
to cause the injury or the result of intoxication on the part of
the injured* party.
"(4) In actions by an employ^ against an employer for
personal injury sustained arising out of and in the course of the
employment where the employer has elected to reject the
provisions of this act, it shall be presumed that the injury to
the employ^ was the direct result and growing out of the
negligence of the employer; and that such negligence was the
proximate cause of the injury; and in such cases the burden
of proof shall rest upon the employer to rebut the presump-
tion of negligence."
As the Act does not apply "to any household or do-
mestic servant, farm or other laborer engaged in agricultural
pursuits, nor persons whose employment is of a casual
nature" [§ 1 (a)] the common-law defenses are not abolished
in suits by such employes.
KANSAS
The Kansas Act applies primarily to the employers en-
gaged in the occupations specified in § 6 who have em-
ployed five or more workmen continuously for more than one
month, at the time of the accident, and in the case of mining
operations to all employers irrespective of the number of
men employed. § 8.
All other employers may adopt 1 the compensation prin-
ciple. §8.
As to the first class, if they do not adopt the compensation
principle they will not be permitted in actions against them
by their employes to set up the defenses:
1 But see excepted classes specified post, p. 83.
ABOLITION OF DEFENSES 83
Kansas
" (a) that the employe" either expressly or impliedly assumed
the risk of the hazard complained of;
" (b) that the injury or death was caused in whole or in part
by the want of due care of a fellow servant;
"(c) that such employ6 was guilty of contributory negli-
gence but such contributory negligence of said employe" shall be
considered by the jury in assessing the amount of recovery."
§46.
If such employers in class One adopt the compensation
principle and the employes refuse to accept compensation,
then in actions against the employers they may set up the
defenses:
" (a) that the employe" either expressly or impliedly assumed
the risk of the hazard complained of;
" (b) that the injury or death was caused in whole or in part
by the want of due care of a fellow servant;
"(c) that said employe" was guilty of contributory negli-
gence; provided, however, that none of these defenses shall
be available where the injury was caused by the willful or
gross negligence of such employer, or of any managing officer,
or managing agent of said employer, or where under the law
existing at the time of the death or injury such defenses are
not available."
The Act is not entirely clear as to whether the abolition of
defenses applies only to the employers engaged in the em-
ployments specified in § 6 who have five or more employes
and those engaged in mining operations irrespective of the
number of employes, but this seems to be the reasonable
construction of the various portions of the Act. This con-
clusion is reached from the reading of § 8 in connection with
§§ 46 and 47. Section 8 provides:
"It is hereby determined that the necessity for this law and
the reason for its enactment, exist only with regard to em-
ployers who employ a considerable number of persons. This
act, therefore, shall only apply to employers by whom five or
84 beadbury's workmen's compensation law
Kansas
more workmen have been (employed) continuously for more
than one month at the time of the accident; provided, how-
ever, that employers having less than five workmen may
elect to come within the provisions of this Act in which case
his employes shall be included herein, as hereinafter provided;
and, provided further that this act shall apply to mines with-
out regard to number of workmen employed."
♦
Sections 46 and 47 read as follows:
"§46. In any action to recover damages for a personal
injury sustained within this State by an employe" (entitled
to come within the provisions of this act) while engaged in the
line of his duty as such or for death resulting from personal in-
jury so sustained, in which recovery is sought upon the ground
of want of due care of the employer or of any officer, agent or
servant of the employer, where such employer is within the
provisions hereof, it shall not be a defense to any employer
(as herein in this act defined) who shall not have elected, as
hereinbefore provided, to come within the provisions of this
act: (a) That the employe either expressly or impliedly
assumed the risk of the hazard complained of; (b) that the
injury or death was caused in whole or in part by the want of
due care of a fellow servant; (c) that such employe" was guilty
of contributory negligence but such contributory negligence
of said employ6 shall be considered by the jury in assessing
the amount of recovery.
"§ 47. In an action to recover damages for a personal
injury sustained within this State by an employe" (entitled to
come within the provisions of this act) while engaged in the
line of his duty as such or for death resulting from personal
injury so sustained in which recovery is sought upon the
ground of want of due care of the employer or of any officer,
agent or servant of the employer, and where such employer has
elected to come and is within the provisions of this act as
hereinbefore provided, it shall be a defense for such employer
in all cases where said employe has elected not to come within
the provisions of this act: (a) That the employe" either ex-
pressly or impliedly assumed the risk of the hazard complained
ABOLITION OF DEFENSES 85
Kansas
of; (6) that the injury or death was caused in whole or in part
by the want of due care of a fellow servant; (c) that said
employe was guilty of contributory negligence; provided,
however, that none of these defenses shall be available where
the injury was caused by the willful or gross negligence of
such employer, or of any managing officer, or managing agent
of said employer, or where under the law existing at the time
of the death or injury such defenses are not available."
While §§ 46 and 47 speak of employes "entitled to come
within the provisions of the Act" it will be observed that
these sections apply to employers only "where such employer
is vnthin the provisions hereof." As § 8 specifically states
that the Act "shall only apply to employers by whom five or
more workmen have been employed" etc., it seems clear
that the intention is to abrogate the common-law defenses
only as to those engaged in mining without regard to the
number of employes, and to those engaged in the occupations
specified in § 6 of the Act when they employ more than five
workmen.
The provision of § 47 that even where the employer
has elected to come within the provisions of the Compensa-
tion Act and the employ^ has refused to do so, the employer
may still be precluded from setting up the common-law
defenses, when the injury is caused by the wilful or gross
negligence of the employer "or any managing officer, or
managing agent of said employer," leaves the door open for
much speculation as to when the employer, in any given
cases, may feel assured that his liability is measured by the
compensation feature of the statute, or that he may save his
common-law defenses by showing a willingness to pay com-
pensation to his workmen. For example, when a case is
brought to trial, at just what point does the employer learn,
for the first time, that he will not be permitted to introduce
evidence establishing the common-law defenses? Is this
question decided in the first instance by the Court or by the
jury? Does the Court say, after the plaintiff has put in his
86 bradbury's workmen's compensation law
Maryland
evidence, that the negligence of the master is wilful, or gross
and, therefore, evidence of the common-law defenses will not
be received? Obviously this practice would not do, as this
would be trying and deciding this particular question on ex
parte testimony. Must, then, the question be reserved until
all the evidence is in? If so, who then decides it? Will the
trial judge order the evidence of such defenses stricken out
and direct the jury to disregard it, upon the judge's determi-
nation that the negligence of the master was wilful or gross?
Or will the trial judge instruct the jury that if they find the
employer to have been wilfully or grossly negligent then
they shall disregard the evidence of the common-law defenses
in reaching their verdict? The latter seems to be the only
alternative because the very right to recover at all as against
an employer who has signified his intention to adopt the
compensation principle, in such a case, is by proving that
he has been guilty of gross or wilful negligence. Obviously
this question cannot be determined until the entire case is
before the jury — the evidence of the defendant as well as
that of the plaintiff.
"Agricultural pursuits and employments incident there-
to are hereby declared to be non-hazardous and exempt
from the provisions of this Act." § 6, last sentence.
The term "workman" "does not include a person who is
employed otherwise than for the purpose of the employer's
trade or business." § 9, in part.
As to suits by the two classes of employes above specified
therefore the common-law defenses are not abrogated.
MARYLAND
The Maryland Act provides that employers and employes
may enter into a contract for the payment and receipt of
compensation according to a specific schedule in lieu of any
other rights or liabilities for injuries suffered in the course of
the employment. There is no penalty if either fails or refuses
to enter into such a contract. The law is a dead letter.
ABOLITION OF DEFENSES 87
Massachusetts
MASSACHUSETTS
The Massachusetts Act abolishes absolutely the three
common-law defenses as to employers who do not elect to
come under the compensation feature of the statute, except
in actions "by domestic servants and farm laborers." See
Part I, §§ 1, 2 and 3. The effect of this exception is that
employers of domestic servants and farm laborers may either
elect to pay compensation or not as they choose. But if they
do not elect to adopt the compensation principle there is no
penalty attached, as there is with other employers, namely,
the abolition of the common-law defenses. The judges of
the Supreme Court of Massachusetts have held that this ex-
ception does not render the act unconstitutional. Opinion of
Justices, 209 Mass 607; 96 N. E. Rep. 308; 1 N. C. C. A. 557.
The judges, in the same opinion, also declared that, "We
construe clauses 1 and 2 in their reference to negligence as
meaning contributory negligence or negligence on the part
of a fellow servant which falls short of the serious and wil-
ful misconduct which under Part II, § 2, will deprive an
employe of compensation. So construed we think that the
section is constitutional. We neither express nor intimate
any opinion whether it would be unconstitutional if other-
wise construed. The rules of law relating to contributory
negligence and assumption of the risk and the effect of
negligence by a fellow servant were established by the courts,
not by the constitution, and the legislature may change
them or do away with them altogether as defenses (as it has
to some extent in the employers ' liability act) as in its wis-
dom in the exercise of powers intrusted to it by the consti-
tution it deems will be best for the 'good and welfare of this
Commonwealth.' See Missouri Pacific Railway v. Mackey,
127 U. S. 205; Minnesota Iron Co. v. Kline, 199 U. S. 593."
It would seem therefore that serious and wilful misconduct
on the part of an employe1 would defeat his cause of action
against an employer in a common-law action for damages,
88 bradbury's workmen's compensation law
Michigan
even though the employer should not elect to accept the
compensation feature of the statute.
As the Act does not apply to "one whose employment is
but casual, or is not in the usual course of the trade, busi-
ness or profession or occupation of his employer" nor to
masters or seamen on vessels engaged in interstate or foreign
commerce, (Pdh-t V, § 2) in actions by such employes the
common-law defenses are not abolished.
MICHIGAN
Employers who fail to adopt the compensation principle
are deprived of their common-law defenses except wilful
negligence. As the portion of the Workman's Compensation
Act that abolishes these defenses does not apply to em-
ployers who have adopted the compensation principle it does
not make any difference what action an employe takes.
If an employer has adopted the compensation principle and
an employ^ of such an employer has rejected it and sues the
employer for damages, the employer may set up the common-
law defenses, because the portion of the Act abohshing
them does not apply to such an employer at all. The por-
tions of the Act relating to this subject provide as follows:
"Part I, § 1. In an action to recover damages for per-
sonal injury sustained by an employe" in the course of his
employment, or for death resulting from personal injuries so
sustained, it shall not be a defense:
" (a) That the employe" was negligent, unless and except it
shall appear that such negligence was wilful;
"(6) That the injury was caused by the negligence of a
fellow employe;
" (c) That the employe had assumed the risks inherent in
or incidental to, or arising out of his employment, or arising
from the failure of the employer to provide and maintain safe
premises and suitable appliances.
ABOLITION OF DEFENSES 89
Minnesota
"Sec. 2. The provisions of section one shall not apply to
actions to recover damages for personal injuries sustained by
household domestic servants and farm laborers.
"Sec. 3. The provisions of section one shall not apply to
actions to recover damages for the death of, or for personal
injuries sustained by employes of any employer who has
elected, with the approval of the industrial accident board
hereinafter created, to pay compensation in the manner and
to the extent hereinafter provided."
"Household domestic servants and farm laborers" are
specifically excluded from the provisions of the Act abolish-
ing the common-law defenses. § 2. A person "whose em-
ployment is but casual or is not in the usual course of the
trade, business, profession or occupation of his employer"
is entirely excluded from the operation of the statute. § 7,
subd. 2. In actions by any of such classes of employes there-
fore the common-law defenses are not abrogated.
MINNESOTA
If the employer elects not to operate under the compensa-
tion statute, he loses the right to set up the defenses of
assumption of risk, negligence of fellow servant and contrib-
utory negligence of the plaintiff, but he may set up wilful
negligence. If the employer agrees to adopt compensation
and the employe refuses to be bound by the statute, then
the employer may set up such defenses as are available at the
time of the passage of the compensation statute. See Sec-
tions quoted below:
"Part I, § 1. When personal injury or death is caused to
an employe' by accident arising out of and in the course of his
employment, of which injury the actual or lawfully imputed
negligence of the employer is the natural and proximate
cause, he, or, in case of death, his personal representative, for
the exclusive benefit of the surviving spouse and next of kin,
90 Bradbury's workmen's compensation law
Minnesota
shall receive compensation by way of damages therefor from
his employer, provided the employe" was himself not wilfully
negligent at the time of receiving such injury; and the question
of whether the employe was wilfully negligent shall be one of
fact to be submitted to the jury, subject to the usual powers of
the court over verdicts rendered contrary to the evidence, or
to law.
"§ 2. In alt cases brought under Part 1 of this act it shall
not be a defense (a) that the employe was negligent, unless and
except it shall also appear that such negligence was wilful;
(6) that the injury was caused by the negligence of a fellow
employe1; (c) that the employe had assumed the risks inherent
in, or incidental to the work, or arising out of and in the course
of his employment from the failure of the employer to provide
and maintain safe premises and suitable appliances, which
grounds of defense are hereby abolished except as provided in
Section 4.
"§ 3. If the employer elects not to come under Part 2 of
this act, he loses the right to interpose the three defenses
named in Section 2 in any action brought against him for per-
sonal injury or death of an employe.
"§ 4. If the employer becomes subject to Part 2 of this
act and the employe does not, then the employer may set up
such defenses as are available at the time of the passage of
this act. i
"§ 5. The provisions of Sections one, two, three and four
shall apply to any claim for the death of an employe arising
under Section 4503 of Chapter 84, Revised Laws of Minnesota
1905, and the acts or parts of acts amendatory thereof, con-
cerning death by wrongful act. J
"§ 6. In all actions at law brought pursuant to Part 1 of
this act, the burden of proof to establish wilful negligence of
the injured employe" shall be upon the defendant.
The Act does not apply "to actions or proceedings to
recover damages or compensation for personal injuries sus-
1 The statute to which reference is made is an enabling act permitting
an action to be brought by the personal representatives of a deceased
person whose death was caused by the wrongful act of the defendant;
ABOLITION OF DEFENSES 91
Nebraska
tained by domestic servants, farm laborers, or persons whose
employment at the time of the injury is but casual and not
in the usual course of the trade, business, profession or occu-
pation of his employer." Part II, § 8. In actions by such
employes, therefore, the common-law defenses are not abro-
gated.
NEBRASKA
The defenses based on assumption of risk and the fellow-
servant rule are abolished as to employers who fail to adopt
the compensation principle. The defense of contributory
negligence is greatly modified as to such employers. If
however the employ! refuses to follow the employer in
adopting the compensation principle the defenses are re-
stored to the employe".
The statute reads as follows:
"Part I, § 2. In all cases brought under Part I of this
Act it shall not be a defense (a) that the employe" was negli-
gent, unless and except it shall also appear that such negligence
was wilful, or that the employ6 was in a state of intoxication;
(6) that the injury was caused by the negligence of a fellow em-
ploye^ (c) that the employe had assumed the risks inherent in,
or incidental to, or arising from the failure of the employer
to provide and maintain safe premises and suitable appliances,
which grounds of defense are hereby abolished, except as
provided in Section 4.
"§ 3. If an employer subject to the provisions of this
Act as shown in Section 6 elects not to come under Part II
hereof, he loses the right to interpose the three defenses above
stated in any action brought against him for personal injury
or death of an employ^.
"§ 4. If an employer becomes subject to Part II of this
Act, and the employe" does not, then the defenses existing
under the laws for Nebraska other than the provisions of this
Act at the time of the personal injury or death of the employe"
shall be available to the employer in any action brought by the
employe" or his dependents for personal injury or death.
92 bkadbtjry's workmen's compensation law
Nevada
"§ 5. The provisions of Sections 1, 2, 3 and 4 shall apply
to any claim for the death of any employ6 arising under
Chapter 21 of the Compiled Statutes of Nebraska, 1911, and
the acts of parts of acts amendatory thereof, concerning death
by wrongful act." 1
"The following are declared not to be hazardous occupa-
tions and not within the provisions of this Act; employers
of household domestic servants, employers of farm laborers
and all employers employing less than five employes, in the
regular trade, business, profession or vocation of such em-
ployer. Railroad companies engaged in interstate or foreign
commerce are declared subject to the powers of Congress and
not within the provisions of this Act." § 6 (2). In actions
by employes in the excepted classes above, therefore, the
common-law defenses are not abrogated.
NEVADA
If the employer fails to adopt the compensation principle
the defenses of assumption of risk, negligence of a fellow
servant and contributory negligence are entirely abolished,
although the employer may still plead that the negligence of
the plaintiff was wilful and with intent to cause the injury,
or that the injury was the result of intoxication on the part of
the injured party. § 1.
1 The statute to which reference is made is an enabling act permitting
a recovery for death "caused by the wrongful act, neglect, or default,
and the act, neglect, or default is such as would, if death had not ensued,
have entitled the party injured to maintain an action and recover damages,
in respect thereof, then, and in every such case the person who, or com-
pany or corporation which would have been liable if death had not ensued,
shall be liable to an action for damages, notwithstanding the death of the
person injured, and although the death shall have been caused under
such circumstances as amount in law to felony." The same chapter also
provides that the action may be brought by the personal representatives
of the deceased for the benefit of the widow, widower and next-of-kin of
the deceased.
ABOLITION OF DEFENSES 93
New Hampshire
If the employer accepts the compensation principle and the
employe" rejects it then the employer may set up any of the
common-law defenses in an action brought by such employe.
§ 2 (6). If, however, the injury is due to a violation of a
safety statute the defense of assumption of risk is not avail-
able to the employer, even though the employe" rejects the
compensation principle after his employer has adopted it.
§2,(6).
"Where the employer and employe" elect to reject the terms,
conditions and provisions of this Act, the liability of the em-
ployer shall be the same as though the employe1 had not re-
jected the terms, conditions and provisions thereof." § 5.
If the employer has rejected the compensation principle,
then in any action brought against him by an employe" for
personal injuries "it shall be presumed that the injury to the
employe was the first result and growing out of the negli-
gence of the employer; and that such negligence was the
proximate cause of the injury; and in such case the burden
of proof shall rest upon the employer to rebut the presump-
tion of negligence." § 1, (c) (4).
The Nevada Act applies only where two or more employes,
as defined in the Act, are employed in the same general
employment and in the usual and ordinary transaction of the
business. § 1 (a). It does not apply to domestic servants
or farm laborers. § 43. Therefore, in actions by domestic
servants or farm laborers, or an employe of an employer who
does not have two or more employes the common-law de-
fenses are not abrogated.
NEW HAMPSHIRE
The New Hampshire Act applies to a limited number of
employments only. See § 1. As to employes in the occu-
pation specified it is provided that "the workman shall not
be held to have assumed the risk of any injury due to any
94 bradbury's workmen's compensation law
New Jersey
cause specified in this section; but there shall be no liability
under this section for any injury to which it shall be made
to appear by a preponderance of evidence that the negligence
of the plaintiff contributed." § 2. By the same section the
employer is made liable for injuries due to the negligence
of a fellow servant.
The foregoing provisions of § 2 do not apply to an
employer who has duly elected to adopt the compensation
feature of the statute by filing a declaration with the Com-
missioner of Labor and furnishing the bond required by § 3.
It is provided, however, "that the employer shall at the elec-
tion of the workman, or his personal representative, be liable
under the provisions of Section 2 of this Act for all injury
caused in whole or in part by wilful failure of the employer
to comply with any statute, or with any order made under
authority of law." § 3.
It would appear from this that the defenses which are
abolished are assumption of risk and negligence of fellow
servant should the employer fail to adopt the compensation
principle in regard to the specific occupations specified in § 1
of the Act.
By § 4 of the Act it is provided in effect that the work-
men may elect after the accident to either claim compensation
or sue for damages. If, however, the employer has elected to
pay compensation and filed the bond required by § 3, it
would appear that the employer would have the right to
interpose any of the defenses which he might have interposed
if the Compensation Act had not been passed.
NEW JERSEY
Under the New Jersey Act the defenses of assumption of
risk and negligence of fellow servant are absolutely abolished.
§ 1 (2). The defense of contributory negligence is modified
practically to the point of abolition. In its place there is
provided a defense of wilful negligence, and "the question
of whether the employe was wilfully negligent shall be one
ABOLITION OF DEFENSES 95
New Jersey
of fact to be submitted to the jury, subject to the usual
superintending powers of a court to set aside a verdict ren-
dered contrary to the evidence." §1 (1). "In all actions
at law brought pursuant to § 1 of this Act, the burden of
proof to establish wilful negligence in the injured employe1
shall be upon the defendant." § 1 (5).
"For the purposes of this act, wilful negligence shall consist
of (1) deliberate act or deliberate failure to act; or (2) such
conduct as evidences reckless indifference to safety; or (3)
intoxication, operating as the proximate cause of injury."
§3(23).
While the New Jersey Act is elective both as to employers
and to employes it does not make any difference, so far as the
employes are concerned, as respects the abolition of defenses,
whether they elect to accept or to refuse compensation.
Even though the employes reject the compensation plan and
elect to demand common-law damages as to such employers
as have adopted the compensation principle the employers
cannot set up any of the common-law defenses in such ac-
tions. Of course, the employes must indicate a rejection
before the accident happens or they will be bound by the
purely compensation feature of the statute.
"§ 1.4. Application of act in case of death. The provi-
sions of paragraphs one, two and three shall apply to any
claim for the death of an employe arising under an act en-
titled 'An Act to provide for the recovery of damages in cases
where the death of a person is caused by wrongful act, neglect
or default,' approved March third, eighteen hundred and
forty-eight,1 and the amendments thereof and supplements
thereto." L. 1911, c. 95, as am'd by L. 1913, c. 174.
1 The statute referred to is the usual enabling act permitting an action
to be brought by the personal representatives of a deceased person whose
death was caused by the wrongful act of the defendant.
96 bradbury's workmen's compensation law
New York
It is left somewhat in doubt under the New Jersey Act
whether or not in actions by casual employes the employer
may take advantage of the common-law defenses. Section
III, subd. 23 provides that "employe is synonymous with
servant and includes all natural persons who perform serv-
ice for another for financial considerations, exclusive of
casual employments"
By the provisions of § I, subds. 1 and 2, the defenses of
negligence of fellow servant and assumption of risk are
abolished entirely and that of contributory negligence is
greatly modified in actions for damages for negligence,
apparently in all cases where the parties have elected to
reject the compensation principle. The provisions of
subds. 1 and 2 of § I are very broad in this respect.
Inasmuch as subd. 23 of § III provides, in effect, that
the word employe1 as used in the Act shall not apply to
those in casual employments, it would seem that casual
employe's are not affected by the Compensation Act in any
manner whatsoever. If this is the correct interpretation,
casual employes constitute the only class of employes in
New Jersey at the present time as against whom employers
may set up the common-law defenses, in any event, in
actions for personal injuries due to negligence.
NEW YORK
The New York Act of 1913 is compulsory in form as to
certain specified employments and has no effect whatso-
ever on those engaged in employments other than those
enumerated therein. There is no necessity, therefore, of
abolishing the common-law defenses as to those engaged
in either of these classes of employment. There are certain
circumstances, however, under which the ordinary common-
law defenses are abrogated as to employers. While all
employers engaged in the enumerated employments are
brought by compulsion under the Act, such employers
must, nevertheless, take the further step of assuring the
ABOLITION OF DEFENSES 97
Ohio
compensation payments. If any of such employers fails
to assure the compensation payments, as provided in § 50,
then his employe1 has a right to elect, after an accident,
whether he will claim compensation or demand damages.
Should such an employe elect to demand damages and
bring suit therefor the employer would be deprived of the
right to set up the common-law defenses in such an action.
§11.
OHIO
The amended Ohio statute, which is compulsory in form,
taking full effect on Jan. 1, 1914, applies to all employers who
have in service "five or more workmen or operatives regularly
in the same business, or in or about the same establishment
under any contract of hire, express, or implied, oral or
written." § 1465-60, subd. 2.
Any employer who employs less than five workmen or
operatives regularly in the same business, or in or about the
same establishment, may also voluntarily adopt the com-
pensation principle and be relieved from further liability.
But there is no penalty attached if he does not do so.
§ 1465-71.
If an employer of more than five workmen fails to pay
into the State Insurance fund he is liable to his employes for
damage suffered by reason of personal injuries, and in such
a case the employer cannot avail himself of the three common
law defenses. § 1465-73. In such a case the employe may,
in lieu of bringing an action against his employer, make a
claim against the State Insurance fund and the State In-
dustrial Commission may determine such claim and make
a summary order requiring the employer to pay the amount
determined by the Commission and in case the employer
fails to obey the order it becomes a liquidated claim for
damages against such employer in the amount ascertained
and fixed by the Commission, which, with an added penalty
of fifty per centum, may be recovered in an action in the
7
98 Bradbury's workmen's compensation law
Oregon
name of the State for the benefit of the person or persons
entitled to the same. §§ 1465-74 and 1465-75.
Under certain conditions employers may carry their own
insurance and if there is a compliance with the statute such
employers have the same standing as those who join the
State Insurance Fund, in respect to their common-law
defenses. § 146^-69.
The principal section of the Ohio Act abolishing common-
law defenses provides as follows:
" 1465-73. § 26. Employers mentioned in subdivision two
of section thirteen (§§ 1465-60) hereof, who shall fail to com-
ply with the provisions of section twenty-two (§ 1465-69)
hereof, shall not be entitled to the benefits of this act dur-
ing the period of such non-compliance, but shall be liable to
their employes for damages suffered by reason of personal
injuries sustained in the course of employment caused by the
wrongful act, neglect or default of the employer, or any of the
employer's officers, agents or employes, and also to the per-
sonal representatives of such employes where death results
from such injuries, and in such action the defendant shall not
avail himself or itself of the following common law defenses:
"The defense of the fellow-servant rule, the defense of the
assumption of risk or the defense of contributory negligence.
"And such employers shall also be subject to the provisions
of the two sections next (§§ 1465-74 and 1465-75) succeeding."
Employes "whose employment is but casual, or not in the
usual course of trade, business, profession or occupation of
his employer" are excluded from the operation of the Act.
§ 1465-61, subd. 2; § 14 of Act of 1913, subd. 2. In actions
by employes in the excepted classes, therefore, the common-
law defenses are not abrogated.
OREGON
The Oregon law is an elective State insurance plan relating
to certain specified hazardous employments, and is modeled,
to a considerable extent, on the Washington law, except that
ABOLITION OP DEFENSES 99
Rhode Island
the latter is a compulsory statute. Unless any employer in
the trades or occupations specified in the Act files a notice of
election to contribute to the State insurance fund he is
deprived of the common-law defenses, but may set up that
the injury was due to the wilful act of the workman for the
purpose of sustaining the injury. § 15.
If the workman elects to reject the provisions of the com-
pensation statute " such workman shall be in no wise be sub-
ject to the provisions or entitled to any of the benefits
hereof." § 18. If the workman elects to reject the statute
and sues his employer, the employer may set up the common-
law defenses.
As to the non-hazardous employments the employer may
elect to adopt the compensation principle or not as he pleases.
There is no penalty if he fails to do so. The employe" has
the same election. In such case the parties are subject to
the laws of the State other than the Compensation Act.
"Any employer and his workman engaged in works other
than those defined in section 13 hereof may accept the pro-
visions of this Act and become subject thereto and entitled
to the benefits thereof by filing with the Commission their
written election to that effect." § 31. This appears to re-
quire joint action on the part of employers and workmen, but
there does not appear to be any penalty as to either em-
ployers or workmen, if they fail to elect to operate under
the compensation principle when they are engaged in non-
hazardous employments.
RHODE ISLAND
The Rhode Island statute does not apply to employers
who employ five or a less number of workmen or operatives
regularly in the same business "but such employers may, by
complying with the provisions of section 5 of this Article be-
come subject to the provisions of this Act." Article I, § 3.
Nor does the Act apply to employe's engaged in domestic
service or agriculture.
100 bradbury's workmen's compensation law
Texas
As to other employers and employes the three common-
law defenses are abolished unless the employer adopts the
compensation principle, in which case the employer retains
such defenses, as to any employes who reject the compensa-
tion feature of the statute.
Sections 1 and 4 of Article I of the Rhode Island Statute
read as follows:
"Art. I, § 1. Removal of defenses. In an action to recover
damages for personal injury sustained by accident by an em-
ployfe arising out of and in the course of his employment, or
for death resulting from personal injury so sustained, it shall
not be a defense: (o) That the employ^ was negligent; (6) that
the injury was caused by the negligence of a fellow employ^;
(c) That the employe has assumed the risk of the injury."
********
"§ 4. Employer who elects to pay compensation. The pro-
visions of section 1 of this Article shall not apply to actions to
recover damages for personal injuries, or for death resulting
from personal injuries, sustained by employes of an employer
who has elected to become subject to the provisions of this
Act, as provided in section 5 of this Article."
TEXAS
Employers subject to the Act who do not adopt the com-
pensation principle are deprived entirely of the defenses
founded on the fellow-servant rule and of assumption of risk.
The doctrine of comparative negligence is substituted for
that of contributory negligence. The employer may defend
on the ground that the injury was intentionally inflicted.
Part I, § 1 (1).
The Act does not apply to domestic servants, farm la-
borers, railroad employes, workmen engaged in cotton gins,
nor to the employes of any employer having in his employ
not more than five employes. Part I, § 2.
The following are the principal provisions of the Texas
Act:
ABOLITION OF DEFENSES
-v
fl\.
Washington
V.
"Part I, § 1. In an action to recover damages for personal
injuries sustained by an employe in the course of his em-
ployment, or for death resulting from personal injury so sus-
tained, it shall not be a defense:
"1. That the employee was guilty of contributory negli-
gence; but in such event the damages shall be diminished in the
proportion to the amount of negligence attributable to such
employee, provided that no such employee who may be injured
or killed shall be held to have been guilty of contributory
negligence where the violation by such employer of any statute
enacted for the safety of the employees contributed to the
injury or death of such employee;
"2. That the injury was caused by the negligence of a
fellow employee;
"3. That the employee had assumed the risk of the injury
incident to his employment; but such employer may defend in
such action on the ground that the injury was caused by the
wilful intention of the employee to bring about the injury.
"4. Provided, however, in all such actions against an em-
ployer who is not an (a) subscriber as defined hereafter in this
Act, it shall be necessary to a recovery for the plaintiff to
prove negligence of such employer or some agent or servant
of such employer acting within the general scope of his
employment."
WASHINGTON
The Washington Act applies to certain hazardous employ-
ments. Should an employer engaged in any of the enumerated
employments fail to pay his quota into the State Insurance
Fund the employe" may elect whether to sue for damages
under the law as it existed prior to the enactment of the
State insurance statute, or to claim compensation from the
State Insurance Fund. Should the employe" elect to sue for
damages in such a case, or should the State sue the default-
ing employer (as it may) after the employe has elected to
take compensation, in "any suit brought upon such a cause
of action the defense of fellow servant and assumption of
102 bradbury's workmen's compensation law
West Virginia
risk shall be inadmissible, and the doctrine of comparative
negligence shall obtain." § 8.
Employers and employes engaged in works which are not
extra-hazardous may, by their joint election, filed with the
Department, accept the provisions of the Act as to compen-
sation, but there is no penalty if they fail to do this. § 19.
WEST VIRGINIA
The West Virginia Act is an elective State insurance plan
applicable to all employes except domestic servants and
farm laborers. Employers cannot adopt the compensation
principle without contributing to the State Insurance Fund.
"All employers subject to this act who shall not have
elected to pay into the workmen's compensation fund the
premiums provided by this act, or having so elected, shall be
in default in the payment of same, shall be liable to their
employes (within the meaning of this act) for damages suffered
by reason of personal injuries sustained in the course of em-
ployment caused by the wrongful act, neglect or default of their
employer, or any of the employer's officers, agents or employes,
and also to the personal representatives of such employes
where death results from such injuries, and in any action by
any such employe1 or personal representative thereof such
defendant shall not avail himself of the following common-law
"The defense of the fellow-servant rule; the defense of the
assumption of risk; or the defense of contributory negligence;
and further shall not avail himself of any defense that the
negligence in question was that of someone whose duties are
prescribed by statute." § 26.
As those engaged in domestic service and farm labor are
excepted from the provisions of the Act the common-law
defenses in actions by such employes are not abrogated.
ABOLITION OF DEFENSES 103
Wisconsin
WISCONSIN
As to employers who fail to adopt the compensation
principle the defense of assumption of risk is abolished in
actions by employes for damages. If such an employer has
at the time of the accident "in a common employment four
or more employes" it is not a defense "that the injury or
death was caused in whole or in part by the want of ordinary
care of a fellow servant;" nor "that the injury or death was
caused in whole or in part by the want of ordinary care of the
injured employe, where such want of ordinary care was not
wilful." § 2394-1, in part, as am'd by L. 1913, c. 599.
From the foregoing it appears that an employer who does
not adopt the compensation principle cannot in any event
set up the defense of assumption of risk. The other common-
law defenses are abolished only as to such employers as have
four or more employes in a common employment and who
fail to adopt the compensation principle. If an employer
has fewer than four employes he is deprived of the defense
of assumption of risk, if he does not elect to pay compensa-
tion, but not of the other common-law defenses.
Should employes elect, as they may do under § 2394-8,
not to adopt the compensation principle, then, of course, em-
ployers may set up the common-law defenses in any action
which such employes may bring against them, because the
provisions abolishing the common-law defenses apply only to
such employers as do not adopt the compensation principle.
"Any person whose employment is but casual or is not in
the usual course of the trade, business, profession, or occu-
pation of his employer" is excepted from the operation of
the Wisconsin Act. § 2394-7, subd. 2. In actions by. em-
ployes in the excepted class, therefore, the common-law
defenses are not abrogated.
It will be observed that under the Wisconsin Act two dis-
tinct classes are excluded by reason of the disjunctive con-
junction "or," which is used between the two phrases. That
104 bradbury's workmen's compensation law
Reason for abolishing the common-law defenses
is, persons whose employment is casual are excluded, and
also persons who are not employed in the usual course of the
trade, business, profession or occupation of the employer.
The British statute, from which the provision excluding
casual employments is taken, contains the conjunctive con-
junction "and" between these two phrases, so that to exclude
an employe from the right to compensation his employment
must not only have been casual but it must have been outside
the usual course of the trade, business, profession or occupa-
tion of the employer. In other words, a casual employe"
whose work pertains to the trade, business, profession or
occupation of the employer is entitled to compensation.
But a casual employe" whose work does not pertain to the
usual course of the trade, business, profession or occupation
of the employer is not entitled to compensation. See a dis-
cussion of this subject post, page 136.
Switching crews on railroads are excluded unless they
voluntarily adopt the Act. § 2394-8 (3).
CHAPTER III1
TO WHOM ACTS APPLY
ARTICLE A. — How the Relation of Master and Servant Is
Created 106
9.
10,
Who is an "employe" or
a "workman" within
the meaning of the
compensation acts. . . . 106
Members of employer's
FAMILY 109
Relation between em-
ployer, WHO IS ALSO A
WORKMAN, and other
workmen 110
Workman temporarily
in service of other
than regular em-
PLOYEE 110
Joint employers of same
WORKMAN 112
Teamsters 113
Workman employing as-
sistant, OR SUBSTI-
TUTE 115
Conductor on railroad
employing assistants;
emergency 117
Apprentice serving
without pay 117
Boarding mistress of
construction crew. . . 118
lSee also Chapter VI.
11. Student of manual
training school em-
ployed on holiday. . . 118
12. Persons employed by
charitable organiza-
tion out of charity. . 119
13. Policeman injured
while acting as fire-
MAN 120
14. National guardsmen . . . 120
15. Actors 120
16. Partners 121
17. Shareworkers on ves-
sels 121
.18. Drivers of taxi-cabs
operated on shares. . 125
19. Independent contrac-
tors; SUB-CONTRACTORS 127
20. Securing position by
false representations 133
21 . Minor securing position
by misrepresenting
AGE 133
22. Workman injured be-
fore ACT TAKES EFFECT
BUT DIES AFTER STAT-
UTE EFFECTIVE 133
105
106 bradbuby's workmen's compensation law
Who is an "employ^" or a "workman," etc.
ARTICLE B.— Specific Classes of Employes Excluded from
Operation of Acts 134
1. Domestic servants 134 fession" of the em-
2. Casual employe 136 ployeh 143
3. Farm laborers 142 6. Contracts exempting em-
4. Outworkers . .*. 142 ployers from the oper-
5. "Usual course of the ation of the act 144
trade, business or pro-
ARTICLE C. — Specific Provisions of the Various Statutes. . 146
Arizona 146 Nevada 176
California 150 New Hampshire 176
Connecticut 151 New Jersey. 177
Illinois 153 New York 178
Iowa 156 Ohio 184
Kansas 160 Oregon 185
Maryland 164 Rhode Island 189
Massachusetts 165 Texas 190
Michigan 167 Washington 192
Minnesota 171 West Virginia 197
Nebraska 172 Wisconsin 203
ARTICLE A.— HOW THE RELATION OF MASTER AND
SERVANT IS CREATED
1- Who is an " employe " or a " workman " within the
meaning of the compensation acts.
Various questions have arisen between partners, share-
workers, contractors, sub-contractors and others as to
when a man is a "workman," or an "employe," so as to
be entitled to compensation in case of injury. The old
decisions on the question of when the relation of master
and servant exists are, of course, to a certain extent, ap-
plicable here. Whenever other than strictly workmen's
compensation cases are cited in this chapter the letters
TO WHOM ACTS APPLY 107
Who is an "employe1" or a "workman," etc.
(E. L.) appear directly before the title to the case so there
may be no confusion in applying the principles which they
enunciate.1
Of course it does not necessarily follow that the compensa-
tion principle applies to all cases where the relation of mas-
ter and servant, or employer and employe^ exists. Some
of the acts specifically exclude certain occupations such
for example as farm laborers, domestic servants and casual
employes. Others apply to certain hazardous occupations
only leaving all others under the old employers' liability
laws. The particular statute under which the question
arises must first be consulted.
There is a distinction between the word "workman" as
used in the British Act and the word "employe" usually
found in the statutes of the American States. Thus it is
held in England that a certified manager of a colliery receiv-
ing £400 a year with house rent free, who does no manual
labor, is not a workman. Simpson v. Ebbw-Vale Steel, Iron
& Coal Co. (1905), 92 L. T. 282; 7 W. C. C. 101. The same
rule was applied as to a chemist whose duties were largely
the making of laboratory experiments and who, in connec-
tion therewith, did considerable manual labor. Bagnall v.
Levinstein (1906), 96 L. T. 184; 9 W. C. C. 100. A law
writer was injured in the street during the hour allowed
for his lunch. It was held that a law writer was within
the Act, but that the luncheon hour is not part of his period
of employment, and therefore compensation was refused.
McKrill v. Howard & Jones (1909), 2 B. W. C. C. 460.
It has also been held that a professional football player
was a workman within the meaning of § 13 of the British
Act. Walker v. Crystal Palace Football Club (1909), 101
L.T.645;3B.W.C.C.53.
The British Act, however, is limited to employes who
are earning less than a specified sum, unless they are en-
1Only the more recent illustrative employers' liability cases have
been cited in this connection.
108 bradbury's workmen's compensation law
Who is an " employ! " or a " workman," etc.
gaged in manual labor, in which latter event the amount
of their wages is of no importance. See § XIII. Such
limitations are not found in many of the workmen's compen-
sation statutes of the various American States. Usually
the word "employe" is used, and the exceptions relate
to those engaged in particular employments, without re-
gard to the sum received as wages or salary. No distinc*
tion is made between those engaged in manual and other
kinds of labor. Thus in New York it is held that the su-
perintendent of a knitting mill is an "employ^" within the
meaning of the Employers' Liability Act, since it does not
assume to make any distinction between different classes
of employes. (E. L.) Aken v. Barnet & Aufsesser Knitting
Co., 118 App. Div. 463; 103 Supp. 1078.
Naturally in the great majority of cases the relation of
master and servant is created by direct contract of employ-
ment, either oral or written, express or implied, and no
question is raised as to the existence of the relation when an
accident happens. In our complex industrial life, however,
numerous contractors and sub-contractors are employed.
In the attempt to shift the burden of liability for heavy
damages in consequence of personal injuries caused by
negligence the courts have been called upon to determine
the circumstances under which workmen may be said to
be the employes of particular employers, when two or more
employers, between whom contractual relations exist, are in-
terested in the same enterprise. Not infrequently a series of
contracts and sub-contracts have been entered into for the
purpose of escaping or evading this very liability. Stat-
utes have been passed to circumvent this practice, whereby
principals have been held responsible for injuries to work-
men of contractors and sub-contractors under certain cir-
cumstances. In many of the compensation acts this prin-
ciple has been adopted, as will be seen from consulting
Chapter VII, of this volume. The present article, how-
ever, treats of those cases where the question is open to
TO WHOM ACTS APPLY 109
Members of employer's family
debate whether or not the relation of master and servant
exists under various sets of circumstances not governed
by specific statutory provisions.
In order to hold the master liable for personal injuries
caused by negligence, it must appear that the servant was
at the time of the injury engaged in the service of the mas-
ter or going to or from such service. (E. L.) Lenk v. Kansas
& T. Coal Co., 80 Mo. App. 374. It is sufficient to create
the relation of master and servant if, at the time of the
accident, the employe was in charge of the master's property
by his assent and authority engaged in his business and
under his control; it not being necessary that he be in his
general employment or under a special contract, or that
the servant received remuneration directly from his em-
ployer. (E. L.) Rhatigan v. Brooklyn Union Gas Co., 136
App. Div. 727; 121 Supp. 481; (E. L.) Kimball v. Cushman,
103 Mass. 194; (E. L.) Wood v. Cobb, 3 Allen, 58. The
test by which to determine whether a person is acting as
a servant of another is to ascertain whether, at the time when
the injury was inflicted, he was subject to such person's
orders and control and was liable to be discharged for dis-
obedience of orders or misconduct. (E. L.) United States
Board & Paper Co. v. Landers, 93 N. E. Rep. 232; 47 Ind.
App. 315.
When the employment is covered by a written contract,
the construction of such contract and the question as to
what constitutes an independent employment thereunder
is a question of law for the court. (E. L.) Singer Mfg. Co.
v. Rahn, 132 U. S. 518.
2. Members of employer's family.
A son, employed by his father, lived with him and paid
him board and lodging. He was injured while absent for
several weeks on his father's business. It was held that
he was a member of his employer's family, dwelling in his
house, and was therefore not a workman within the Act.
110 bradbury's workmen's compensation law
Workman temporarily in service of other than regular employer
M'Dougall v. M'Dougall (1911), 48 Scotch L. R. 315; 4
B. W. C. C. 373.
3. Relation between employer, who is also a workman,
and other workmen.
When one joint employer takes upon himself the func-
tion of a worknian the relation of master and servant be-
tween him and the employes continues to subsist. (E. L.)
Rhoades v. Varney, 91 Maine, 222; 39 Atl. Rep. 552.
4. Workman temporarily in service of other than regular
employer.
A person who is in the general employ of one person may
be temporarily in the service of another with respect to a
particular transaction, so that the relation of master and
servant arises between them, even though the general em-
ployer may have an interest in the special work. (E. L.)
Westover v. Hoover, 129 N. W. Rep. 285; 88 Nebr. 201. Thus
where a servant is loaned by his own master to another, who
puts him to work, the other owes him the duties due from a
master to a servant. (E. L.) Wyman v. Berry, 75 Atl. Rep.
123; 106 Me. 43. In another instance the defendant con-
tracted to place a machine in A's plant, with certain guar-
antees as to the operation of the machine when installed.
An expert was placed in charge of the work, and an em-
ploye1 of A was directed to take instructions from this ex-
pert so that he could operate the plant when installed.
While the work was in progress a boiler exploded and A's
employe1 was injured. It was held that such person, although
directly employed by A, was employed by the defendant
to the extent that he could recover from the defendant for
his injuries thus received. (E. L.) Wise v. Lillie & Sugar
Apparatus Mfg. Co., 113 Pac. R. 403; 84 Kans. 86. The
seller of a bank safe and vault bound himself to deliver
the same and supply a mechanic to take charge of the work
of installation. An expert in the seller's employ took charge
TO WHOM ACTS APPLY 111
Workman temporarily in service of other than regular employer
of the work of installing the safe and vault and the bank
turned over to him its servants and they were under the com-
plete control of the expert in the work, although the bank
paid for their services. It was held that the services were,
for the time being, the services of the seller and he was liable
for injuries negligently inflicted on them in the performance
of the work. (E. L.) Wolfe v. Mosler Safe Co., 139 App. Div.
848; 124 Supp. 541. The seller of a stationary engine was in-
stalling it and an employe of the buyer voluntarily became
an employe of the seller. It was held that such employe had
the right to hold the seller to the duty of competent superin-
tendence. (E. L.) Bowie v. Coffin Valve Co., 86 N. E. Rep.
914; 200 Mass. 571. Where the defendant hired the plain-
tiff and then directed him to work under the control of a
contractor engaged in placing machinery in the defendant's
mill, the defendant paying the plaintiff and charging his
wages to the contractor, whose contract bound him to pay
all expenses of putting in the machinery, it was held that
the plaintiff could not recover of the defendant as his serv-
ant, for injuries received owing to insufficient lighting of
the mill. (E. L.) Dallas Mfg. Co. v. Townes, 41 So. Rep.
988; 148 Ala. 146.
A servant who, while in a safe position doing his master's
work, was requested by the engineer of an elevator company,
which was engaged in an independent employment, at-
tempted to loosen the elevator and while so doing was
killed, was held not to be then in the service of his own
employer and that his own employer was not liable for
damages on account of his death. (E. L.) Longa v. Stanley
Hod Elevator Co., 69 N. J. Law, 31; 54 Atl. Rep. 251.
The services of an employe regularly employed by a
corporation were loaned to one of the officers and directors
thereof to perform temporary services in the private busi-
ness of such director and officer. While performing such
services he was away from his employer's premises and on
the premises of such director and officer, and the work was
112 bradbury's workmen's compensation law
Joint employers of same workman
done under his direction and supervision. While perform-
ing such services the employe1 was injured. It was held
that the injury was not received in the course of the em-
ployment within the meaning of § 1465-59 of the Ohio Com-
pensation Act. Re William A. Jones, Claim No. 4173, Ohio
Industrial Accident Board, June 4, 1913.
5. Joint employers of same workman.
Where the putting of a heater in a distillery was the joint
undertaking of the distillery company and the makers of
the heater, it was held that the distillery company was
liable to one of its servants who assisted in the work by
direction of its foreman, for an injury resulting from the
breaking of a defective rope furnished for the work. (E. L.)
Old Times Distillery Co. v. Zehnder, 52 S. W. Rep. 1051;
21 Ky. Law Rep. 753. Where a railway company, in con-
sideration of a fixed rental, furnished a brewing company
with a locomotive, for the exclusive use of the brewing
company, in a yard containing tracks and switches the ties
and rails of which were owned by the railway company
and the real estate by the brewing company, and the engi-
neer and fireman operating the locomotive were selected
by the railway company and paid by the brewing company,
it was held that the operation of the yards and locomotive
was a joint enterprise of the two companies. (E. L.) Schoen
v. Chicago, St. P., M. & 0. Ry. Co., 127 N. W. Rep. 433; 112
Minn. 38. A porter on a sleeping car owned jointly by the
railroad company and the Pullman company was held to be
an employ^ of the railroad company within the Federal Em-
ployers' Liability Act, so that his personal representatives
were not precluded from recovery for his death by a release
in his contract of employment. (E. L.) Oliver v. Northern
Pacific Ry. Co., 196 Fed. R. 432.
For the purpose of having a continuous line, one rail-
road company, by a traffic arrangement, operated the rail-
roads of two other railroad companies, and the three roads
TO WHOM ACTS APPLY 113
Teamsters
divided the freight according to mileage. It was held that
this was not a partnership or an agency, and that the em-
ployes of the operating company were not the employes
of the other two companies, and, therefore, had no right of
action against them for injury resulting from the negligence
of the operating company in the movement of its trains.
(E. L.) Williams v. Kansas City, S. & G. By. Co., 45 So.
Rep. 924; 120 La. 870.
6. Teamsters.
When the plaintiff was employed to drive a team which
his employer let to the defendant, at a certain price per
day, and the defendant had control of the team, it was held
that for this particular employment the plaintiff was the serv-
ant of the defendant although remaining the general employe"
of the owner of the team. (E. L.) Christiansen v. McLellan,
133 Pac. Rep. 434; 000 Wash. 000. Where a municipal
corporation owned a water cart and contracted with a Mrs.
Dean for a horse and driver, which driver was employed,
and who was not under the control of the corporation other
than that its inspector directed him what streets or portions
of streets to water, it was held in an action by the owner
of a carriage, which was injured by the negligent driving of
a cart, that the driver of the water cart was the servant of
Mrs. Dean and not of the municipal corporation. Jones v.
Corporation of Liverpool, 14 Q. B. D. 890. An employer
sent two horses and carts with one driver to work for the
City of Springfield, in cleaning sweepings from the street.
The plaintiff's intestate was also sent as a driver and his
duties were to drive one of the horses and a cart to a dump
while the other cart was being loaded, so that he was driving
one or the other all of the time. The general instructions
as to the place and the kind of work to be done were given
by the superintendent of the city. But it was the duty of
the employe to water the horses when he had a chance and
to care for the horses from the time he took them from the
8
114 bkadbury's workmen's compensation law
Teamsters
barn until he brought them back again at night. Just be-
fore twelve o'clock on the day of the injury the deceased
told the man in charge of the street sweepers that he would
take one horse and cart and go to dinner and on the way to
dinner he would water the horse. The decedent's home was
in the direction of the nearest watering trough, but a con-
siderable distance beyond it. Before reaching the watering
trough the decedent was fatally injured by the running away
of the horse. It was contended that the deceased had no
reason to go to his dinner as he carried grain for the horses
and it was his duty to feed them during the noon hour. It
was held that the retention of control included the care of the
horses at least to the extent of seeing that they were given
water and that during this time the deceased was in the em-
ploy of the owner of the horses, and his dependents were
therefore entitled to compensation from such owners. It was
also held that the accident arose out of and in the course of
the employment, as the deceased was on his way to perform
his duty in watering the horse at the time of the injury,
although he may have had, at the time of the injury, the
purpose of doing something else not within the scope of
his employment after watering the horse. Pigeon v. Em-
players' Liability Assurance Corporation, 215 Mass. 000;
102 N. E. Rep. 932.
A person driving his own team, although working for a
coal dealer, was held to be an independent contractor and
not entitled to compensation. Cheevers v. Fidelity & De-
posit Company of Maryland, Mass. Indus. Ace. Bd., Rep.
Cas., 1913, p. 365. (Appeal pending to Supreme Judicial
0010-1.) A man who had a carting business was employed
to cart stones for a county council. He did the work as and
when he pleased, but was not controlled by the council
except that their surveyor told him where the stones were
to be placed. He did not work continuously, but did other
work when he wished. He was paid by the day while he
worked. It was held that he was not an employe within the
TO WHOM ACTS APPLY 115
Workman employing assistant or substitute
meaning of the British Act and compensation was refused.
Ryan v. County Council of Tipperary (S. R.) (1912), 48 Ir.
L. T. 69; 5 B. W. C. C. 578. Where the plaintiff was em-
ployed by the defendant to haul a boiler and the plaintiff
was to furnish team, wagon and assistants, it was held that
the plaintiff was an independent contractor, even though
he was obeying the defendant's instructions while unload-
ing. (E. L.) See v. Leidecker, 152 Ky. 724; 154 S. W.
Rep. 10. A teamster owning his own horses and wagon
was engaged in hauling dirt. He was under the order of
the employer's foreman and was required to conform to
regulations established by the employer. He did no other
work with his team and wagon during the time he was em-
ployed by the defendant. It was held that the teamster
was an employe1 and not a contractor. Rider v. C. H. Little
Co., Michigan Industrial Accident Board, April, 1913.
The plaintiff hired a coach at a public stand near a hotel,
and directed the driver where to go. While crossing. a rail-
road track the carriage was struck by the engine of a pass-
ing train, and the plaintiff was injured. It was held that
the relationship of master and servant did not exist between
the plaintiff and the driver of the coach. (E. L.) Little v.
Hackett, 116 U. S. 379.
7. Workman employing assistant or substitute.
Where a master allows a servant to employ another to
assist him the relationship of master and servant is created,
although the person so employed may be compensated and
be under the immediate control of the person employing
him. (E. L.) Paducah Box & Basket Co. v. Parker, 136
S. W. Rep. 1012; 143 Ky. 607. In another instance the plain-
tiff was employed frequently during a year preceding his
injury by a foreman of the defendant railway company, and
was paid a part of the time by the foreman personally and
part of the time was placed on the pay-roll. It was held
that he was in the employ of the railroad company so that
116 bbadbuey's workmen's compensation law
Workman employing assistant or substitute
it owed to him the duty of a master. (E. L.) Illinois Cent.
R. Co. v. Timmons, 100 S. W. Rep. 337; 30 Ky. Law Rep.
1155. An employe" of the defendant railway company hav-
ing charge of its pumping station and water tank, informed
the superintendent that he had to go away on business and
would leave his fourteen year old son in charge, and received
the superintendent's permission so to do. It was held that
the son was an employe" of the company. (E. L.) Yazoo &
M. V. R. Co. v. Slaughter, 45 So. Rep. 873; 92 Miss. 289.
Where the plaintiff, with the knowledge and consent of the
defendant's superintendent in general charge of his factory,
was employed by an engineer as a substitute during a tem-
porary absence, it was held that the defendant was charged
with knowledge of such employment, and with the same
duty toward the plaintiff as to the other employes. (E. L.)
Aga v. Harbach, 117 N. W. Rep. 669; 140 Iowa, 606.
An injured man was engaged by another workman. The
employer of such workman only authorized him to employ
a boy. It was held that the employment of an old man,
when the employer only authorized the engagement of a
boy, prevented the applicant being held to be a workman
under a contract of service with the respondent. M'CleUand
v. Todd (1909), 43 Irish L. T. J. 75; 2 B. W. C. C. 472.
Where an employe engages an infant who, by reason of
his age and inexperience, is unable to avoid the danger in
which he is placed by the employe who engages him, the
employer may be liable even though the employe" who en-
gaged the infant had no authority to employ hands. (E. L.)
Wells v. Kentucky Distilleries & Warehouse Co., 138 S. W.
Rep. 278; 144 Ky. 438.
Where a stranger in a cotton mill, by permission of the
employer, is requested by a section boss to procure oil from
an oil pan, it makes the stranger an employ^. (E. L.) Tucker
v. Buffalo Cotton Mills, 57 S. E. Rep. 626; 76 S. C. 539.
A laborer hired merely to take care of a race horse was
held to have no authority to employ a boy to ride it to water
TO WHOM ACTS APPLY 117
Apprentice serving without pay
so as to render the master liable to the boy for injuries he
received while so doing. (E. L.) Corrigan v. Hunter, 122
S. W. Rep. 131; 139 Ky. 315; rehearing denied, 130 S. W.
Rep. 798; 000 Ky. 000.
8. Conductor on railroad employing assistants; emergency.
A conductor is not authorized to employ additional help
when he has a full train crew and no emergency arises, and
the railroad company is not liable where one employed by
the conductor under such circumstances is injured while
performing the work. (E. L.) Clarke v. Louisville & N. R.
Co., Ill S. W. Rep. 344; 33 Ky. Law Rep. 797; (E. L.)
Vassor v. Atlantic Coast Line R. Co., 54 S. E. Rep. 849;
142 N. C. 68; 7 L. R. A. (N. S.) 950; (E. L.) Yazoo & M. V.
R.' Co. v. Stansberry, 53 So. Rep. 389; 97 Miss. 831. In
the last-mentioned case the conductor, in the absence of any
emergency, and without authority, agreed to permit the
plaintiff's minor son to ride on a freight train in considera-
tion of his services in assisting the train crew in loading and
unloading freight, and it was held that the railroad company
was not liable to the plaintiff for injuries sustained by the
son resulting from his own negligence and unskilfulness.
Evidence that plaintiff, an employe1 of defendant railroad
as baggageman at a station, on several occasions voluntarily
assisted in handling baggage on special excursion trains,
but did not do the work on the order of the conductors in
charge of the trains, nor with their knowledge, and was at
no time in the uniform of a train baggageman, is insufficient
to create an implication of defendant's acceptance of plain-
tiff's services as train baggageman, so as to render defendant
liable for injuries received by plaintiff while acting in that
capacity. (E. L.) Wagen v. Minneapolis & St. L. R. Co.,
82 N. W. Rep. 1107; 80 Minn. 92.
9. Apprentice serving without pay.
A person who, under authority from a railroad company,
118 bradbuey's workmen's_compensation law
Student of manual training school employed on a holiday
goes upon an engine to learn the duties of a fireman, per-
forming the services to gain the experience, is a servant of
the company, although he receives no pay during his ap-
prenticeship. (E. L.) Smith v. Western & A. R. Co., 67
S. E. Rep. 818; 134 Georgia, 216.
10. Boarding mistress of construction crew.
One employed by the foreman of a bridge crew of a rail-
road company to board the men in cars furnished by the
company under an agreement providing that each man
should pay a specified sum per day for board, and, in case
any of the men failed to pay, the company would deduct
the same from their wages, is, in a sense, in the service of
the company, in that what she was employed to do and was
doing was for the convenience of the employe's of the com-
pany. (E. L.) Tinkle v. St. Louis & S. F. R. Co., 110 S. W.
Rep. 1086; 212 Mo. 445. Where the defendant railroad
company employed the plaintiff's husband as manager for
its outfit cars, requiring him to cook or else to furnish a
cook, and permitted plaintiff to accompany him and cook
for the outfit employes, it was held that the relation of
master and servant existed between the plaintiff and the
defendant, although the plaintiff was not entitled to any
pay for her services from the defendant. (E. L.) Pugmire
v. Oregon Short Line R. Co., 92 Pac. Rep. 762; 33 Utah, 27; 13
L. R. A. (N. S.) 565.
11. Student of manual training school employed on holiday.
The applicant who was a boy of fifteen, injured his left
hand on a circular saw in the manual training department
of a high school. He was a student but was employed on a
holiday by the principal, under authorization of the School
Board. His wages were fourteen cents an hour. Compensa-
tion in the sum of $1,000 was awarded by agreement of the
parties and order of the Board. Schmitz v. City of Apphton,
Wisconsin Industrial Accident Board, September 30, 1912.
TO WHOM ACTS APPLY 119
Persons employed by charitable organization out of charity
12. Persons employed by charitable organization out of
charity.
A charitable institution which had instituted a labor yard,
and which, in return for work done therein by persons out of
employment, gave such persons their board and lodging
and occasionally trifling sums of money, was held not to be
employers as to one of the persons who had performed
work under the rules stated, as the applicant had not proved
a contract of service between himself and the institution.
The question whether or not the institution carried on a
trade or business was left open. Burns v. Manchester &
Salford Wesleyan Mission (1908), 1 B. W. C. C. 305. A dis-
tress committee, which provides temporary work for an
applicant, is an employer within the meaning of the Work-
men's Compensation Act and a person injured is entitled to
compensation. Gilroy v. Mackie and Others (Leith Distress
Committee) (1909), 46 Scotch L. R. 325; 2 B. W. C. C. 269.
The Central Body under the Unemployed Workmen Act
of 1905, are "employers" within the meaning of the Com-
pensation Act, and when a workman employed by them is
killed, his widow is entitled to compensation. Porton v.
Central (Unemployed) Body for London (1908), 100 L. T.
102; 2 B. W. C. C. 296. A blind man was injured while
employed in the industrial department of an institute for
the blind. This department was supported partly by chari-
table contributions received by the institute. The institute
gave the man, in respect of his services, board, lodging, and
5 shillings a month, and received on his account charitable
and parochial assistance which came to a few pounds less
than the amount it expended on him. It was held that the
man was a workman. MacGillivray v. The Northern Coun-
ties Institute for the Blind (1911), 48 Scotch L. R. 811; 4
B. W. C. C. 429.
A dispensary medical officer employed by Guardians of
the Poor was held not to be a workman, as there was no
contract of service between him and an employer within
120 bradbury's workmen's compensation law
Actors
the meaning of § 13 of the Compensation Act, and that
therefore when such medical officer was killed, his dependents
were not entitled to compensation. Murphy v. Enniscorthy
Board of Guardians (1908), 42 Irish L. T. 246; 2 B. W. C. C.
291.
The relation of master and servant does not exist between
an inmate of a eharitable institution, even though the inmate
does work about the building in which he has a home, and
the institution receives a small sum each month under the
agreement by which the institution cares for such person.
Cunningham v. Sheltering Arms, 61 Misc. 501 ; 115 Supp. 576;
aff 'd 135 App. Div. 178 ; 1 19 Supp. 1033.
13. Policeman injured while acting as fireman.
Where a police constable was acting as a fireman under an
Act of Parliament, it was held that he was acting as a mem-
ber of a police force, and was not a workman within the
meaning of § 13 of the Act. Sudell v. Blackburn Corporation
(1910), 3 B. W. C. C. 227.
14. National guardsmen.
Applicant was a member of a company of Infantry in
the Wisconsin National Guard. While in the course of his
duties in the annual encampment of his regiment he sus-
tained injuries which caused hernia. The Attorney General
of Wisconsin held that the applicant was an employe of the
State and was entitled to compensation, and the Board
sustained the opinion and granted compensation. Hanson
v. State of Wisconsin, Wisconsin Industrial Accident Board,
February 4, 1913.
15. Actors.
"It is very doubtful whether actors and vaudeville artists
are employes within the meaning of the Workmen's Compen-
sation Act. Most of their employments would undoubtedly
be outside the relation of master and servant, and be that
TO WHOM ACTS APPLY 121
Shareworkers on vessels
of independent contractors not covered by the Act. The
status of employment in some classes of vaudeville might,
however, be an exception, owing to the circumstances of
service and to the direct control exercised by the employer
over the performers." Massachusetts Industrial Accident
Board, Bulletin No. 2, Jan., 1913, page 5.
Of course the doctrine announced in the foregoing case
would not apply to all actors as most of them are employed
on a salary and doubtless would come within the meaning
of the term employe. A more serious question arises as to
the law which governs when actors are engaged in one State
to travel in a dozen or more other States. See page 34.
16. Partners.
When partners entered into an agreement that one of their
number should act as a working foreman and he received
33s. a week for his services as such in addition to his share
of the profits, it was held that his widow was not entitled to
compensation from the other partners because of the death
of such foreman partner by accident, as he was not a work-
man within the meaning of the Act. Ellis v. Ellis & Co.
(1905), 92 L. T. 718; 7 W. C. C. 97.
17. Shareworkers on vessels.
Two decisions of the Court of Appeal in England in which
different conclusions were reached by the same judges, have
left in some doubt the question whether the master of a
ship who sails the same on shares with the owners, is an
employe1 of the owners. In the case of Boon v. Quance,
No. 1 (1909), 102 L. T. 443; 3 B. W. C. C. 106, the Court of
Appeal of England held that the master was not the employe1
of the owner. In that case the captain, who sailed a small
vessel with a crew of three under the thirds or sharing system,
was at liberty to take any cargoes to any place he pleased,
the owner receiving one-third of the gross receipts and doing
necessary repairs to the ship. The captain received the re-
122 Bradbury's workmen's compensation law
Shareworkers on vessels
maining two-thirds, and had to pay and feed the crew (whom
he engaged) and also pay harbor dues. The vessel went down
with all hands and the captain's dependents claimed com-
pensation. It was held that there was no contract of service
between the captain and the owners and consequently the
dependents were not entitled to compensation.
In the subsequent case of Jones v. Owners of the Ship
"Alice and Eliza" (1910), 3 B. W. C. C. 495, the crew of a
small schooner consisted of the captain, a mate and some-
times a boy. The master, in returning to the schooner at
night, fell from the dock and was drowned. The claimant's
evidence was that the captain received two-thirds of the
income from the operation of the vessel for his services. The
owner did not submit any evidence, but contended that
under the doctrine announced in the case of Boon v. Quance,
No. 1, supra, there was no contract of hiring and that there-
fore the captain's dependents could not maintain a right
to compensation. The court awarded compensation never-
theless, distinguishing the two cases. The line of demarca-
tion between them seems to be that in the Boon case the
evidence was that the captain had full control of the ship
and paid to the owner one-third of the receipts. While in the
Jones case the only evidence before the court was that the
master was remunerated by the payment to him of two-thirds
of the gross receipts. The court commented on the failure
of the owner to give any evidence at the trial and said that
under the testimony given there was a distinction between
the two cases.
In a later case the doctrine of the decision in Boon v.
Quance is reaffirmed. Thus a vessel was sailed under the
"sharing system." The captain had authority to trade be-
tween any ports he pleased, the owner having no control
over him in this matter. The owner received one-half of
the gross receipts, after deducting port charges, etc., and
the captain retained the remainder, out of which he paid
the crew's wages. It was held that there was no contract
TO WHOM ACTS APPLY 123
Shareworkers on vessels
of service between the owner and the captain, and that the
latter's widow was not entitled to compensation. Hughes v.
PosOethwaite (1910), 4 B. W. C. C. 105.
A firm of fish-curers engaged A to work a "flitboat"
belonging to them, and authorized him to find another
man to go along with him. A engaged B to work under
him on the boat, which was not in any sense a fishing boat,
but was used for carrying cargo between the curing stations
and vessels lying off shore and landing goods from steamers.
A and B were to be remunerated by one-third each of the
gross earnings of the boat, the remaining third going to the
owners. The boat was maintained by the owners, and both
the men and the boat were subject to their orders. When not
required by the owners he worked for other curers, such
work being undertaken by A as skipper on behalf of the
boat, and the rates charged being the same as those paid by
the owners to the boat for similar work. When the men
were not employed afloat, the owners, whenever possible,
supplied them with work ashore. No part of the capital
embarked was supplied by A or B, nor were they liable for
any loss that might be incurred. In the course of his em-
ployment as boatman, B was drowned, and it was held that
he was not a partner but a workman in the sense of the Act,
and therefore his dependents were entitled to compensation.
Jamieson v. Clark (1908), 46 Scotch L. R. 73; 2 B. W. C. C.
228.
A member of the crew of a trawler, which is worked on
shares, and who is therefore a co-adventurer, is not entitled
to compensation where he does some other act voluntarily
which is in connection with his regular work. Whelan v.
Great Northern Steam Fishing Co. (1909), 100 L. T. 912;
2 B. W. C. C. 235.
A person who owned ten sixty-fourth shares of a trading
schooner was employed as a master by the managing owner
and met his death while in the course of his employment.
It was held that in the absence of any proof of partnership
124 bradbtjby's workmen's compensation law
Shareworkers on vessels
or joint-adventure in a course of trading, the master was a
workman and his dependents were entitled to recover com-
pensation from the managing owner. Carswell v. Sharps
and Others (1910), 47 Scotch L. R. 335; 3 B. W. C. C. 552.
An engineer, on a steam fishing vessel, who was injured,
was remunerated by 1/24 share of the net profits of a catch,
with a guarantee, by the owners of the vessel, that should
his profit fall short of 30s. a week, they would make it up
to that amount. It was held that the workman was "re-
munerated by a share," and therefore not entitled to com-
pensation, as the word "solely" is not to be read into § 7
(2) of the Act. Admiral Fishing Co. v. Robinson (1910), 102
L. T.203;3B. W. C. C.247.
Where one G, a member of a fishing vessel, was injured
while the vessel was at sea and engaged in fishing, and it
appeared that he was compensated by a share of the receipts
from the trip, based as follows: From the gross price of the
fish sold after any trip the owners of the vessel were entitled
to deduct commission, discount, and other expenses per-
taining to the trip, and the net balance remaining was then
divided into fourteen shares, of which G received one-eighth
share. While in port and employed in cleaning or making
repairs he was paid a daily wage of 5s. It was held that G
was remunerated by a share of the profits of the gross earn-
ings of the working of the fishing vessel, and was not en-
titled to a recovery of compensation under § 7 (2) of the Act.
Aberdeen Steam Trawling & Fishing Co. v. Gill (1907), 45
Scotch L. R. 247 ; 1 B. W. C. C. 274.
The mate of a coasting vessel, who is a co-adventurer
in the enterprise is not entitled to compensation from the
owners of the vessel. Hoare v. Barge "Cecil Rhodes" (1911),
5 B. W. C. C. 49.
A vessel was worked on shares. Tonnage and pilotage
expenses were deducted from gross freights, and the cap-
tain took two-thirds of the residue, paying therefrom all
other expenses. He made all contracts for freight and en-
TO WHOM ACTS APPLY 125
Drivers of taxi-cabs operated on shares
gaged a crew. He took the vessel where he wished. There
was evidence to show that if the freight was not sufficient
to pay the wages of the crew the owners paid them. The
mate was drowned at sea. It was held that the mate was
a workman employed by the owners, and that his depend-
ents were therefore entitled to compensation. Ship "Vic-
toria" v. Barlow (1911), 45 Ir. L. T. 260; 5 B. W. C. C.
570.
Where a mate engaged by the captain of a barge was paid
by the captain on the sharing system out of the profits of
the voyage and met with an accident arising out of and
in the course of his employment and received compensation
from the owners for several months through an insurance
company, and payments subsequently were stopped, it
was held that the owners were not estopped from denying
that the man was employed by them, and further compen-
sation was refused. Standing v. Eastwood & Co. (1912), 5
B. W. C. C. 268.
18. Drivers of taxi-cabs operated on shares.
A taxi-cab driver occasionally took a cab out for the day
from the owners' yard. He paid the owners 75% of his
receipts, and accepted certain conditions as to the use of a
uniform and the purchase of petrol. There was little or
no control exercised over him, although the words "serv-
ant" and "dismissal" occurred on notices issued by the
owners to the drivers and the public. It was held, by the
House of Lords, that the question of whether or not he
was a workman was one of fact and that there was evidence
to support the finding of the County Court judge that the
contract between the parties was not a contract of service
and that the driver was accordingly not a workman within
the Compensation Act. Bates-Smith v. General Motor Cab
Co. (1911), A. C. 188; 4 B. W. C. C. 249, aff'g (1910), 3 B.
W. C. C. 500. In the last-mentioned case it was remarked
that it might well be that, as between third parties, the
126 bradbury's workmen's compensation law
Drivers of taxi-cabs operated on shares
driver was the agent of the proprietor, whereas between
themselves the relation was that of a bailor and bailee.
A taxi-cab driver took out a cab owned by the respond-
ents from their yard each day. The contract between the
parties was that the driver paid over to the respondents
75% of his daily takings, retaining 25% for himself, less
the price of petrol which he purchased from the respondents.
There was a considerable amount of evidence as to the re-
lationship between the parties. The County Court judge
held that the driver was employed by the respondents and
that the contract was one of service. It was held that there
was no evidence to justify this finding and compensation
was denied by the Court of Appeal. Doggett v. Waterloo
Taxi-Cab Co. (1910), 102 L. T. 874; 3 B. W. C. C. 371. In
the last-mentioned case the court said: "The position of
the driver of a taxi-cab is, in most respects, identical with
the position of the driver of a horse-cab. It has been held
by a series of authorities by which we are bound that the
relation of a proprietor of a horse-cab and a driver is not
in ordinary circumstances one of master and servant al-
though as between a member of the public injured through
the negligence of the driver the proprietor is liable. * * *
The contract between the proprietor and the driver is for
the day on which the taxi-cab is taken out, as the learned
judge finds. The driver is not bound to come the next day,
and if he does come the proprietor is not bound to let him
have a taxi-cab. He is not paid anything as wages. He
is accountable to the proprietor for 75% of the takings,
his own remuneration being a sum equal to 25% of the
takings. This mode of remuneration tends against, and
not in favor of, the view that he is a servant. The proprietor
exercises no control over the driver, who can go when and
where he pleases. * * * I think that the relation was that
of bailment, although it may possibly be contended that
the parties were co-adventurers. In the above observa-
tions I dealt only with the facts of this particular case.
TO WHOM ACTS APPLY 127
Independent contractors; sub-contractors
There may be cases in which the proprietor of a taxi-cab
exercises such an amount of control over the driver as to
justify the conclusion that the relation of master and serv-
ant exists." The court further remarked that the case of
Rex v. Solomons (1909), 2 K. B. 980, apparently furnished
an instance of the exception.
19. Independent contractors; sub-contractors.
"The judicial conception of an independent contractor
is simply that of a person who, being in the exercise of a
distinct and recognized trade, craft, or business, under-
takes to do a certain work, without submitting himself to
the control of the employer in respect of the details of that
work." (E. L.) Linton v. Smith, 8 Gray (Mass.), 147.
"Where a person is employed to perform a certain kind
of work which requires the exercise of skill and judgment
as a mechanic, the execution of which is, because of his
superior skill, left to his discretion, without restriction upon
the means to be employed in doing the work, and employs
his own labor, which is subject alone to his own control
and direction, the work being executed either according to
his own ideas or in accordance with plans furnished him
by the person for whom the work is done, such a person
is not a servant under the control of a master, but an in-
dependent contractor." (E. L.) Richmond v. Sitterding,
101 Va. 354; 99 Am. St. Rep. 879; 43 S. E. Rep. 562; 65 L.
R. A. 445.
Whether an employer is an independent contractor does
not necessarily depend upon the contracts under which he
operates, but may depend entirely upon the conduct of the
parties. (E. L.) Anderson v. Foley Bros., 124 N. W. Rep.
987; 110 Minn. 151.
Where one contracts to do and delivers certain work
the manner of doing which, including the employment,
payment and control of the labor is left entirely to him,
he is an independent contractor for whose acts the other
128 bradbury's workmen's compensation law
Independent contractors: sub-contractors
contracting party is not liable. (E. L.) Robideaux v. Hebert,
43 So. Rep. 887; 118 La. 1089. Thus a person who agrees
to whitewash a building for a certain specified sum is an
independent contractor. (E. L.) Finkehtein v. Balkin,
103 Supp. 99.
A mason employed to hire other men and to work ac-
cording to the employer's plans at a sum stated per hour,
is not an independent contractor, although the employer
exercises no control, and a workman employed by such
mason is a servant of the company for which the work was
done. (E. L.) Madix v. Hotchgreve Brewing Co., 000 Wis.
000; 143 N. W. Rep. 189.
A man who verbally agreed to break steel and clear cin-
ders at so much per ton, and who employed five or six men
to assist him and was paid weekly, was held to be an in-
dependent contractor and not a workman within the mean-
ing of the British Act. Vamplew and Others v. Parkgate
Iron & Steel Co. (1903), 88 L. T. 756; 5 W. C. C. 114.
A man was engaged by a firm of timber merchants to
bring a horse belonging to him and drag logs of timber
from the side of a ship which was being unloaded in the
harbor to a place where the logs were stored. He received
a certain sum per day for himself and his horse, and he
might have received that sum had he employed some one
else to drive the horse. He was under no obligation to come
on any particular day and he was told not to come until
he was wanted. It was held that he was not a workman
in the sense of the Act, but an independent contractor and
therefore not entitled to compensation. Chisholm v. Walker
& Co. (1908), 46 Scotch L. R. 24; 2 B. W. C. C. 261.
A person who contracts to do or get done work at a fixed
price is not a workman within the meaning of the Act.
Simmons v. Faulds (1901), 3 W. C. G. 169.
A quarryman was employed under a written agreement
that he should be paid a certain sum per ton of material
worked, his employers supplying him with the necessary
TO WHOM ACTS APPLY 129
Independent contractors; sub-contractors
tools. He engaged and discharged men to work under him.
He ended his employment, but resumed it again upon his
employers assuring him that he should be compensated in
case he was injured by accident. It was held that there
was evidence that he was a workman within the meaning
of the Act and not an independent contractor. Evans v.
Penwyllt Dinas Silica Brick Co. (1901), 4 W. C. C. 101.
A servant of an independent contractor, working a mine
for the owner, is not the owner's servant. (E. L.) Sloss-
Sheffield Steel & Iron Co. v. Bibb, 51 So. Rep. 345; 000 Ala.
000. An employe of a sub-contractor cannot recover from
the contractor for injuries caused by his employer's negli-
gence when the contractor has no control over the work.
(E. L.) Winnicott v. Orman, 102 Pac. Rep. 570; 39 Montana,
339. The doctrine announced in the last-mentioned case
has of course been modified by statute in many States even
under the old employers' liability laws. It has been changed
in many of the States under workmen's compensation
statutes also. See Chapter VII.
Unless an employe knows he is working for an independ-
ent contractor while the contractor is installing machinery
for the employer, no relation exists between the employe1
and the contractor, since the employe1 cannot be transferred
from one employer to another without his consent. (E. L.)
Bowie v. Coffin Valve Co., 86 N. E. Rep. 914; 200 Mass. 571.
But an undisclosed principal, who succeeds to the ownership
of property theretofore carried on by another member, is
liable to the employes even though they do not have notice
of change of ownership. (E. L.) McClure v. Detroit Southern
B. Co.,. 109 N. W. Rep. 847; 146 Mich. 457.
A company beginning the construction of a pier under
a contract placed "S," its superintendent, in charge of the
work and of the employes. After an employe was injured
by reason of negligence the defendant contended that before
the injury it had assigned its contract to "S" and that he
was doing the work on his individual responsibility. It
9
130 bradbury's workmen's compensation law
Independent contractors; sub-contractors
appeared that no notice was ever given to the plaintiff of
the change of employers; that there was no change in the
work; that the time book and the time checks were the
blank forms used by the company; that the workmen
presented their vouchers on the printed forms of the com-
pany to the office of the company, and there received their
money. It was held that the defendant was liable, as "S"
was its ostensible agent. (E. L.) Donnelly v. San Francisco
Bridge Co., 117 Cal. 417; 49 Pac. Rep. 559.
Where plaintiff was employed by certain miners to work
as a shot firer in the mine, and was paid partly by defendant,
the mine operator, and partly by the miners, it was held that
the relation of master and servant existed between the
plaintiff and defendant. (E. L.) Princeton Coal Mining Co.
v. Downer, 93 N. E. Rep. 1009; 000 Ind. App. 000. But where
a mine owner, giving another a contract to mine, reserved
no rights to interfere with details of the work, but only
required it to be done in conformity with the contract and
the mining rules, it was held that he was an independent
contractor and the relation of master and servant did not
exist between an employe" of the contractor and the owner.
(E. L.) Merriweather v. Sayre Mining & Mfg. Co., 49 So.
Rep. 916; 000 Ala.
One employed by defendants to squeeze boxes for them in
their factory with their machinery, as and when directed by
their foreman, who was paid by the box, with the right to
hire and pay his own assistant, was held not to be an in-
dependent contractor, and for his negligence in operating the
machine, whereby his assistant was injured, the defendants
were liable. (E. L.) Messmer v. Bell & Coggeshall Co., 117
S. W. Rep. 347; 000 Ky. 000.
A lumber company hired a person with his mill and a fire-
man, paying for the mill and fireman a stipulated price per
month and also made the person thus hired foreman of the
"lumber camp. This foreman hired decedent to act as fire-
man of the boiler, which exploded and killed him. It was
TO WHOM ACTS APPLY 131
Independent contractors; sub-contractors
held that the foreman was not an independent contractor
and the decedent was an employe of the defendant lumber
company. (E. L.) Keen's Adm'r v. Keystone Crescent Lum-
ber Co., 118 S. W. Rep. 355; 000 Ky. 000.
A manufacturing company leasing a mill to a person under
an agreement to pay him so much per thousand feet for logs
shipped on board, with a guaranty that he would make a
certain sum per month, was held not liable to an employe
of the person with whom the contract was made for such
person's negligence, in the absence of evidence that the
company reserved general control over the operation of the
mill. (E. L.) Midgette v. Branning Mfg. Co., 64 S. E. Rep.
5; 150 N. C. 333.
A contractor rented from a third person a hod elevator
and appliances. The elevator, from its installation in the
building under construction, was run by the contractor and
his own employes, except the engineer, who moved the
elevator on signals from employes of the contractor. An
employe of a sub-contractor was injured while in the cellar
of the building, by the elevator coming down and striking
him. There was no sign, guard, or warning at the elevator
shaft or elsewhere in the cellar. There was no question of
negligence in the operation of the elevator other than the
failure to guard and warn. It was held that the third person
who owned the elevator was not liable for the injuries.
(E. L.) Anderson v. Pelham Hod Elevating Co., 129 App. Div.
639; 113 Supp. 989.
Where a tug is employed to tow a vessel, the master and
crew of the tug are employes of the owners of the tug and
any claims for negligence must be made against the owners
of the tug and not against the owners of the vessel being
towed. (E. L.) Sturgis v. Boyer, 24 How. 123.
Where the owner of a vessel employed the captain and
chief engineer, and the captain employed the mate, who
employed the sailors, and the charterer could not discharge
the captain without the owner's consent, and if the expenses
132 bkadbtjry's workmen's compensation law
Independent contractors; sub-contractors
exceeded the receipts the owner paid the deficit, it was
held that there was not such a surrender by the owner to the
charterer as to relieve the owner from liability for injuries
to a seaman by the mate's negligence. (E. L.) Nelson v.
Western Steam Nav. Co., 100 Pac. Rep. 325; 52 Wash. 177.
Where the defendant furnished all materials and employed
H by the day to procure men and superintend the construc-
tion of a building, H paying the workmen with money fur-
nished by the defendant, on a statement from time to time
showing the amount required, it was held that the workmen
were the servants of the defendant. (E. L.) Rankel v.
Buckstaff-Edwards Co., 120 N. W. Rep. 269; 138 Wise. 442;
20 L. R. A. (N. S.) 1180.
A man having a contract to build laborers' cottages agreed
with a mason for the latter to do the work. The contractor
supplied the materials, and paid the mason by the day for
the work he did. The mason had to do the work within the
time allowed by the head contractor, and to the satisfaction
of the surveyor under the head contractor. He was not
bound to work continuously, and did not do so, butworked
for other people during the time of building. The County
Court Judge found that the mason was not under a contract
of service with the contractor. It was held on appeal that
there was evidence to support the finding. Byrne v. Baltin-
glass Rural District Council & Kelly (1911), 45 Ir. L. T.
206; 5 B. W. C. C. 566.
Where the plaintiff was employed to shovel gumbo from
the ground upon cars and was paid according to the amount
which he did, but had no control as to where the cars to be
loaded should be placed, and the defendant owning the
plant had control of the cars and general management of the
entire work, including supervision, through a superintendent,
over the plaintiff's work, it was held that the relation of
master and servant existed and the plaintiff was not an
independent contractor. (E. L.) Missouri, K. & T. Ry.
Co. v. Romans, 114 S. W. Rep. 157; 00 Tex. Civ. App. 000.
TO WHOM ACTS APPLY 133
Workman injured before act takes effect but dies after statute effective
An independent contractor was building a bridge for a
railroad company. The railroad company was doing the
track laying on its own account, and while so engaged, a
"tie jack" fell from one of its fiat cars over which the rail-
road company had exclusive management and control, and
struck and injured plaintiff, who was a servant of the con-
tractor. It was held that the contractor was not liable.
(E. L.) Gurdon & Ft. S. Ry. Co. v. Calhoun, 109 S. W. Rep.
1017; 86 Ark. 76.
20. Securing position by false representations.
The fact that a brakeman falsely stated, in securing his
position, that he had never had any litigation with the rail-:
road company, while ground for the rescission of his contract
of employment, does not render such contract absolutely
void, or terminate the relation of master and servant exists
ing at the time of the injury. (E. L.) Galveston H. & S. A.
Ry. Co. v. Harris, 107 S. W. Rep. 108; 000 Tex. Civ. App. 00.
21. Minor securing position by misrepresenting age.
Where a minor by knowingly misrepresenting his age
was accepted by a railroad as a student fireman, though
the rules of the company prohibited the accepting of minors
for train service, it was held he was a trespasser, or, at most,
a bare licensee, and not a servant, and the railroad was not
liable for his death in a collision, since it would be liable
only for injuries wilfully or wantonly inflicted upon him.
(E. L.) Norfolk & W- Ry. Co. v. Bondurant's Adm'r, 59
S. E. Rep. 1091; 107 Va. 515.
22. Workman injured before act takes effect but dies after
statute effective.
A stereotyper in the employment of a newspaper, showed,
early in 1907, symptoms of lead poisoning. He finally left
the employment on June 22, 1907, and eventually died on
September 14, 1907. The Act of 1906 came into operation
134 bradbury's workmen's compensation law
Domestic servants
on July 1, 1907. It was held that the provisions of the Act
were not applicable, since the deceased was not at the date
of the commencement of the Act in the employment of the
respondents, or of any one else, and that accordingly his
widow was not entitled to compensation. Greenhill v. The
Daily Record, Glasgow (1909), 46 Scotch L. R. 483; 2 B. W.
C. C. 244. «
ARTICLE B.— SPECIFIC CLASSES OF EMPLOYES EXCLUDED
FROM OPERATION OF ACTS
1. Domestic servants.
Bouvier defines the word "domestics" as follows:
"Those who reside in the same house with the master
they serve. The term does not extend to workmen or la-
borers employed out-of-doors. 5 Binn. Penn. 167; Merlin,
Report. The act of Congress of April 30 1790, § 25, uses
the word domestic in this sense.
"Formerly this word was used to designate those who
resided in the house of another, however exalted their sta-
tion, and who performed services for him. Voltaire, in
writing to the French Queen, in 1748, says, 'Deign to con-
sider, madam, that I am one of the domestics of the king,
and consequently yours, my companions, the gentlemen
of the king,' etc.; but librarians, secretaries, and persons
in such honorable employments would not probably be
considered domestics, although they might reside in the
houses of their respective employers.
"Pothier, to point out the distinction between a domestic
and a servant, gives the following example: — A literary
man who lives and lodges with you, solely to be your com-
panion, that you may profit by his conversation and learn-
ing, is your domestic; for all who live in the same house and
eat at the same table with the owner of the house are his
domestics; but they are not servants. On the contrary,
your valet-de-chambre, to whom you pay wages, and who
sleeps out of your house, is not, properly speaking, your
TO WHOM ACTS APPLY 135
Domestic servants
domestic, but your servant. Pothier, Proc. Cr. sec. 2,
art. 5, § 5; Pothier, Obi. 710, 828; 9 Toullier, n. 314; H.
de Pansey, Des Justice de Paix, c. 30, n. 1."
Domestic servants are included in the New Jersey Act,
but are excluded from a large majority of the American
compensation statutes. They are included in the British
Compensation Act. There has been considerable doubt as
to whether employes of hotels, such as chambermaids,
cooks, etc., were domestic servants. The decisions on the
subject are very meagre and unsatisfactory.
An ordinary private chauffeur is a domestic servant.
Ruling of Massachusetts Industrial Accident Board, Bul-
letin No. 2, Jan. 13, page 7.
A man who is hired for one day to do some work is not a
domestic servant. Richardson v. State, 43 Tex. 456. The
term "domestic servant" does not extend to workmen or
laborers employed out of doors. Wakefield v. State, 41 Texas,
556. A farm hand who eats and sleeps outside the master's
house is not a domestic servant. Waterhouse v. State, 21
Tex. App. 663; 2 S. W. Rep. 889. A person hired for an
hour to carry wood is not a domestic servant. Williams v.
State, 41 Texas, 649.
Although servants or domestics have been declared to
be those who receive wages and stay in the house of a person
paying and employing them, such as valets, footmen, cooks,
etc., the term does not include persons in such line of em-
ployment in a public hotel or tavern. Cook v. Dodge, 6 La.
Ann. 276. The Act of Congress (23 Stat. L. 332; U. S. Comp.
Stat. 1901, p. 1290) prohibiting the immigration of aliens
under contract except domestic servants, does not include
one who is partially employed in the production of merchan-
dise as fitting surplus dairy products for market. In re
Cummings, 32 Fed. Rep. 75. Nor an under-coachman who
boards with his employer's coachman and sleeps in a room
over the coachhouse. In re Howard, 63 Fed. Rep. 263.
In a will directing the testator's executor to pay each
136 bkadbury's workmen's compensation law
Casual employ^
of his domestic servants who should be with him or in his
service at the time of his decease, such sums of money as
should be equivalent to two years of the annual amount of
their respective wages, domestic servants can not be con-
strued to include a servant who has charge of the garden
at the mansion but who lives in a cottage in the garden and
has an annual isum from his employer in addition to his
employer's wages. Vaughan v. Booth, 13 Eng. L. & Eq.
351, 354.
2. Casual employe.
The word "casual" is from the Latin casualis, meaning
an accident; happening or coming to pass without design
and without being foreseen or expected; coming without
regularity. The word ' ' casualty ' ' has the same origin.
The term "casual employe" as used in the various com-
pensation acts has different meanings. In some of the
statutes casual employes are excluded only when they are
not engaged in the usual course of the trade or business of
the employer. In other statutes all kinds of casual em-
ployes are excluded from their operation. Section XIII
of the British statute, from which the term was originally
taken, provides that the word "workman" shall not include
"a person whose employment is of a casual nature and who
is employed otherwise than for the purposes of the em-
ployer's trade or business. * * * " Under the British
statute, therefore, a casual employe" who is engaged in the
course of the trade or business of the master is covered by
the Compensation Act.
Thus where a casual workman was employed to assist
a slater in repairing the roof of a building used solely for the
purposes of business, and was killed by falling from the
roof, it was held that his dependents were entitled to com-
pensation. Johnston v. Monasterevan General Store Co.
(1908), 42 Irish L. T. 268; 2 B. W. C. C. 183. In the course
of the opinion, in the last-mentioned case, it is said: "The
TO WHOM ACTS APPLY 137
Casual employ^
Act of 1906 widened the liability of employers, and the
scope of the Act was intended to include new classes of
workmen in addition to those benefited by previous acts.
Suppose the shutters of a shop got jammed and could not
be opened, and a carpenter or locksmith was employed to
open them, it is manifest that that would be for the pur-
poses of the employer's business." In another case a farmer
required some tiles put on the roof of his granary and em-
ployed a bricklayer to put them on. During the work the
bricklayer was injured and he afterward claimed compen-
sation. It was held that although the work was of a casual
nature it was for the purpose of the employer's trade or
business, and therefore the workman was entitled to re-
ceive compensation. Blyth v. Sewell (1909), 2 B. W. C. C.
476. A laborer owned a small garden surrounded by a
hedge and land belonging to a farmer. He complained to
the farmer that the hedge had grown so high that it cast
shade across his garden, and requested him to cut it. The
farmer, being too busy, told the man to cut it himself, for
which he would pay him 10s. The long wood from the
hedge was to be used for hop-poles for the farmer. The
man injured his eye while cutting the hedge. The County
Court Judge found that the employment was of a casual
nature for the purposes of the farmer's trade or business,
and awarded compensation. This decision was affirmed on
appeal on the ground that there was evidence to support
the finding. Tombs v. Bomford (1912), 5 B. W. C. C. 338.
A retired physician conducted a farm for profit. The sway-
ing of some trees shook the roots, and thereby injured the
wall of a building on his property. He employed a man
cafeually to trim the trees, and it was held that this employ-
ment was for the purposes of the employer's trade or busi-
ness, and that the man who was thus employed was entitled
to compensation upon being injured. Cotter v. Johnson
(1911), 45 Ir. L. T. 259; 5 B. W. C. C. 568.
Some of the statutes of the American states follow the Brit-
138 bradbury's workmen's compensation law
Casual employ^
ish statutes in this respect, while others exclude all casual
employes, whether they are engaged in the general course of
the business of the employer or otherwise. Thus, the Mas-
sachusetts Act excepts from the operations thereof "one
whose employment is but casual, or is not in the usual course
of the trade, business, profession, or occupation of his em-
ployer." Part V, § 2. The Massachusetts Act, by using
the disjunctive conjunction makes the exclusion much
broader than is effected by the British Act. The Illinois
Act follows very much along the lines of the Massachusetts
statute, although slightly different words are used. It
provides (§ 5) that the term "employe" does not include
"any person whose employment is but casual or who is not
engaged in the usual course of the trade, business, profession,
or occupation of his employer." The Connecticut statute
excludes "casual employes." Part A, § 2. The term as
used in the Connecticut statute, therefore, is just as broad
as that contained in the Illinois and the Massachusetts acts.
On the other hand,' the Minnesota statute follows the British
Act and excludes "persons whose employment at the time
of the injury is but casual and not in the usual course of the
trade, business, profession or occupation of his employer."
In determining, therefore, whether or not particular casual
employes are included or excluded from a statute the specific
provisions thereof on this subject must be examined.
The employment of a window cleaner, at irregular inter-
vals, to clean the windows of a dwelling house, although
the same person may have been engaged, when required,
for a period of some years, is casual employment only. Hill
v. Begg (1908), 1 B. W. C. C. 320. A window cleaner had
been for some years in the habit of cleaning, about once* a
month, the windows of the respondent's private house.
The respondent was a medical man, and used some part of
his house for the purposes of the profession. No formal
contract existed, but the window cleaner called at or about
the expected periods and was admitted and did the work.
TO WHOM ACTS APPLY 139
Casual employ!
It was found, as a fact, that the respondent might at any
time have engaged any other window cleaner, or refused
admission to the window cleaner in question. It was held
that the employment was of a casual nature and was not
employment for the purposes of the employer's trade or
business. Rennie v. Reid (1908), 45 Scotch L. R. 814; 1
B. W. C. C. 324.
A laborer employed to do whitewashing and to be paid
according to the amount of work done, the employer sup-
plying the laborer with money to buy the necessary ma-
terials, is a workman in whose favor compensation should
be awarded. Bargewell v. Daniel (1907), 123 L. T. J. 487;
9 W. C. C. 142.
A woman was employed to work at a particular house on
Friday of every week and on Tuesdays in alternate weeks.
She suffered personal injuries in the course of such employ-
ment. It was held that the employment was not of a casual
nature and that the woman was a workman within the
meaning of the Act, and therefore entitled to compensation.
Dewhurst v. Mather (1908), 1 B. W. C. C. 328.
A carpenter was employed to do repairs in the private
house of the respondent, and after these repairs were finished
was engaged to cut down some trees in the grounds near
the house. While engaged in the latter work he was killed,
and it was held that the employment was of a casual nature
and compensation was refused. ' M'Carthy v. Norcott (1908),
43 Irish L. T. 17; 2 B. W. C. C. 279.
A laborer was engaged to perform certain services in
moving furniture and other personal articles in the house
and in cleaning the yard by a woman who kept a boarding
house. On the day prior to the employment the workman
had been engaged in selling wood for another person. He
was engaged to come for a couple of hours and after he had
been at work about three hours in moving the articles and
cleaning the yard he went into the yard to attach a clothes
line to the pole. He climbed up a clothes pole and while
140 bradbury's workmen's compensation law
Casual employ^
coming down the pole gave way precipitating him to the
ground and injuring him somewhat severely. It was held
that the employment was of a casual nature under the New
Jersey Workmen's Compensation Act. Hubbe v. Lynch
(Essex Common Pleas, Jan. 23, 1913), 36 N. J. Law J. 87.
In the last-mentioned case the court called attention to the
difference in the**provisions of the New Jersey Act in relation
to casual employes from the provisions on the same subject
in the British Act. The New Jersey Act excludes all em-
ployes of a casual nature whether they are engaged in the
employer's trade or business or otherwise. See § III, subd.
23. This provision of the statute was not changed by the
amendment contained in Chapter 174 of the Laws of 1913.
A workman applying for work was asked if he understood
the use of saws, to which he replied that he did, and he was
put to work without any agreement as to the amount of
wages which he was to receive. On the same day that he
started to work he was injured by one of the saws. It was
contended by the employer that there was no contract of
employment on the ground that the workman had deceived
him as to his representations that he understood the use of
saws. The employer also contended that he was a mere
casual employe1 in any event. It was held that the workman
was not a casual employe" and that he was entitled to com-
pensation at at least the minimum amount specified in the
statute of five dollars a week, for the number of weeks speci-
fied in the Act for the loss of a thumb and the partial loss
of the use of the first finger and the loss of the use of the
fourth finger. Mueller v. Oelkers Mfg. Co. (Essex Common
Pleas, February, 1913), 36 N. J. Law J. 117.
By reason of a fire in the plant of the Detroit Saturday
Night Company that Company made a contract with the
Wynn & Hammond Company to use the latter's plant in
getting out the former's periodical. The contract between
the two companies provided that if the Saturday Night
Company desired to use the plant after 5 p. m.. that it
TO WHOM ACTS APPLY 141
Casual employ 6
should furnish a competent engineer to attend to the boilers
and perform such other duties as usually fell to a man in
that capacity. The engineer of the Wynn & Hammond
Company was employed one night while the Saturday Night
Company was getting out its paper and the employes of the
Saturday Night Company, not being familiar with the
building, they requested the engineer who was regularly
employed by the Wynn & Hammond Company in the day
time to run an elevator in the building. In doing this the
engineer was killed. The engineer's dependents made a claim
against the Saturday Night Company and the latter com-
pany contended that the engineer was a purely casual em-
ploye" and that he was really an employe" of the Wynn &
Hammond Company. The Board, however, determined
that he was an employe" within the protection of the Act
and that the Detroit Saturday Night Company was liable
for the compensation. Spooner v. Detroit Saturday Night
Company, Michigan Industrial Accident Board, July, 1913.
The provision of Sec. 7, subd. 2 of the Michigan Act that
casual employes are not entitled to compensation does not
apply to employes of the State or of any public institution.
Agler v. Michigan Agricultural College, Michigan Industrial
Accident Board, Nov. 3, 1913; The Indicator, Nov. 5, 1913,
p. 442.
Where an employe" when he was engaged was told that he
"might get through to-night, you might not for a week, or
two or three days" it was held that he was not a casual em-
ploye. Grogan v. Frankfort General Ins. Co., Massachusetts
Industrial Accident Board.
A firm of caterers did not have any regular waiters in
their employ, but engaged men who followed that occupa-
tion regularly as the occasion arose. While serving in his
usual capacity as waiter at a banquet an employe" received
a personal injury from which he died. It was held that the
employment was not casual and that the widow was entitled
to compensation. Gaynor v. Standard Accident Ins. Co.,
142 beadbuby's wobkmen's compensation law
Outworkers
Massachusetts Industrial Accident Board (appeal pending
to Supreme Judicial Court).
3. Farm laborers.
There is no logical reason why farm laborers should be
excluded from the operations of a compensation act. They
are included in New Jersey and in some of the other States
but not generally. Almost all of the farm laborers are en-
gaged for a brief period during a short portion of the season
only and the burden, therefore, would be somewhat heavy
in comparison with the amount of the wages paid. It is
probable for this reason that they were excluded. An at-
tempt has been made to amend the New Jersey compensa-
tion act in this respect, but so far, without success.
Very little attempt has been made to define farm laborers,
or agricultural workers. In American law a farm means a
portion of land used for agricultural purposes. Winn v.
Cabot, 18 Pick. (Mass.) 553; Wheeler v. Randall, 6 Mete.
(Mass.) 529; Commonwealth v. Carmalt, 2 Binn. (Penn.)
235.
A skilled carpenter employed on a farm as handy man,
doing fence-work, harvesting and rick-making, and for three
or four months a year acting as game-keeper may be a work-
man in agriculture. Smith v. Coles (1905), 93 L. T. 754;
8 W. C. C. 116.
4. Outworkers.
It has been felt that employers should not be held liable
for injuries to workmen who come to the employer's estab-
lishment merely for the purpose of securing material upon
which the work should be done and taking the same to the
workman's own home or workrooms where the labor was
performed. There are many reasons why the employer
should not be held liable in such cases. He has no direction ,
over the operations of the workmen nor over the place in
which the work is performed. Some of the statutes exclude
TO WHOM ACTS APPLY 143
"Usual course of trade, business or profession" of employer
outworkers from their operation but these provisions have
not been interpreted by the courts or administrative com-
missions.
5. " Usual course of the trade, business or profession " of
the employer.
Many, although not all, of the compensation acts con-
tain provisions limiting the application thereof to workmen
who are engaged in the course of the trade, business, profes-
sion or occupation of the employer. Only a few, like that
of New Jersey, apply generally to domestic servants and
all other employe's, whether or not they are engaged about
the master's trade or business. Some of them are either
compulsory as to certain employes engaged in the master's
trade, or business, or, if they are elective, they provide
penalties against the master in relation to employes en-
gaged in his trade or business, if he does not elect to adopt
the compensation principle. Much confusion has resulted
from the adoption of this phrase from the British Act with-
out taking the entire sentence. The British Act excludes
only such casual employes as are not engaged in the master's
trade or business. § XIII. In some of the American acts
all casual employes, as well as all those not engaged in the
master's trade or business are excluded, by coupling the
two phrases together with the word "or," instead of with
the word ' ' and " as is done in the British Act. See discussion
of casual employes, page 136.
An ordinary private chauffeur is not covered by the Work-
men's Compensation Act for the reason that he is either a
domestic servant or is not employed in the usual course of
the trade, business, profession or occupation of his employer.
The chauffeur of a business concern is like any other em-
ploy^ and is covered by the act. Ruling of Massachusetts
Industrial Accident Board. See Bulletin No. 2, January 13,
page 7.
Employment in a refreshment room at a railway station
144 bradbury's workmen's compensation law
Contracts exempting employers from operation of act
is not employment on or in or about a railway. Milner v.
Great Northern By. Co. (1900), 82 L. T. 187; 2 W. C. C.
51.
Rebuilding stations is work "merely ancillary or inci-
dental to and is no part of or process in the trade or business
carried on by" a railway company. Pearce v. London and
South Western By. (1900), 82 L. T. 487; 2 W. C. C. 47.
6. Contracts exempting employers from the operation of the
act.
The provisions of the various acts that no contract ex-
empting the employer from the terms thereof are somewhat
anomalous, especially in regard to those statutes in which
it is provided that silence on the part of the employer and
the employe^ raises a presumption that they have agreed
in the contract of service to accept the compensation principle.
In considering the power to annul the statutes by contract
the intention of the legislature in each instance should be
kept in mind constantly. The lawmaking bodies intended
to compel employers to accept compensation by depriving
them of their common-law defenses if they failed to do so.
They also intended to compel employes to adopt compen-
sation by enacting that the employer's common-law de-
fenses should be restored as to all such employes as refuse
to adopt the compensation principle.1 Naturally this plan
of coercion was adopted to overcome the constitutional
difficulties in the way of enacting a compulsory compensa-
tion law. So the legislatures said to the employers and
employes alike: You may agree (impliedly) with each other
not to adopt the compensation doctrine, but if you do,
certain penalties will be inflicted. If the employer forces
the agreement, by refusing to accept compensation, his
common-law defenses shall be taken away. If, on the other
hand, the employe forces the implied agreement by refusing
1 Not all of the compensation acts contain this penalty so far as the
employes are concerned. But as a general rule they do so.
TO WHOM ACTS APPLY 145
Contracts exempting employers from operation of act
to accept compensation when his employer has already
indicated his intention of embracing that doctrine then
the employer of such employe1 shall have restored to him his
common-law defenses. The whole subject, as it is worked
out in this series of implied agreements, made necessary by
the constitutional difficulties in the way of an obligatory
compensation law, has produced a condition which is both
anomalous and confusing.
Under the British Act it is held that an agreement with
an employe" who had been injured, containing terms differ-
ent from those specified in the Act, will not be upheld.
British & South American Steam Navigation Co. v. Neil
(1910), 3 B. W. C. C. 413.
The term "contracting out" is frequently heard in some
quarters in connection with compensation acts. It has a
restricted meaning, however, and does not include the
right generally to annul the Compensation Act by contract
between employer and employe. The term merely refers
to the right given under the statute of adopting some al-
ternative scheme of compensation which will, in effect, be
the same as that provided under the Act. In other words,
the employer himself under certain conditions, or a number of
employers co-operating, can provide a method of compen-
sating his or their employes on a plan which may differ in
detail from that provided in the statute, but which must
be substantially the same in principle. Such plans must
invariably have the approval of certain public officials
before they become effective. Thus a scheme was certified
under the British Workman's Compensation Act of 1897.
Within six months, allowed for recertification under the
Act of 1906, an infant who had contracted out of the Act
met with an accident. The scale of compensation was not
beneficial to the infant. It was held that the infant was
not bound by the contract. Morter v. Great Eastern Ry.
Co. (1908), 2 B. W. C. C. 480.
10
\146 bradbury's workmen's compensation law
Arizona
ARTICLE C— SPECIFIC PROVISIONS OF THE VARIOUS
STATUTES
ARIZONA1
The "especially dangerous" employments covered by
the compulsory portion of the Arizona Act are specified in
§ 67 below. Employers and employes in other occupations
may elect to adopt the compensation principle. § 79.
There are no special classes of employes, such as domestic
servants and casual employes, excepted from the terms of
the Arizona Act. There would be no object in making such
exceptions as all employes have the constitutional right in
Arizona to elect, after the accident, whether they will de-
mand compensation or damages. The provision in many of
the acts, therefore, that if employers in specific employments
fail to adopt the compensation principle they shall not be
permitted to interpose the common-law defenses is unim-
portant in Arizona. While the common-law defenses are
not entirely abrogated they are very greatly modified and
the modification affects employers who come under the
compensation feature of the statute as well as those who
do not.
The following are the principal features of the statute:
L. 1912,
2d Sea
"§ 66. Compulsory compensation shall be paid
Art. 14, § 2. by his employer to any workman engaged in
1 In 1913 the State of Arizona codified its laws relating to employer and
employe and re-enacted the workmen's compensation law as Chapter VII
of that codification. The re-enactment was without substantial change
in the old law, but such changes as were made are contained in the statute
printed in the text. The original statute was cited as " Article 14, Section 1
Second Session, Laws of 1912, page 23." The re-enactment has new sec-
tion numbers, beginning with Section 65, but in the body of the law fre-
quent reference is made to the sections under the old section marks. This
is very confusing and it has been necessary to insert the old section marks
in the margin to understand the references in certain sections to provi-
sions in other sections.
TO WHOM ACTS APPLY 147
Arizona
any employment declared and determined as
in the next section hereof (as provided in § 8,
of Article XVIII of the State Constitution) to be
especially dangerous, whether said employer be a
person, firm, association, company, or corporation,
if in the course of the employment of said employe"
personal injury thereto from any accident arising
out of, and in the course of, such employment is
caused in whole, or in part, or is contributed to,
by a necessary risk or danger of such employment,
or a necessary risk or danger inherent in the nature
thereof, or by failure of such employer, or any of
his or its officers, agents, or employ^ or employes,
to exercise due care, or to comply with any law
affecting such employment."
" § 67. The employments hereby declared and de- l. 1912,
termined to be especially dangerous (as provided Art.u, $3.
in § 8, of Article XVIII of the State Constitution)
within the meaning of this chapter are as follows:
" 1. The operation of steam railroads, electrical
railroads, street railroads, by locomotives, engines,
trains, motors, or cars of any kind propelled by a
steam, electricity, cable or other mechanical power,
including the construction, use or repair of ma-
chinery, plants, tracks, switches, bridges, road-
beds, upon, over, and by which such railway busi-
ness is operated.
"2. All work when making, using or necessi-
tating dangerous proximity to gunpowder, blast-
ing powder, dynamite, compressed air, or any other
explosive.
"3. The erection or demolition of any bridge,
building, or structure in which there is, or in which
the plans and specifications require, iron or steel
frame work.
"4. The operation of all elevators, elevating
machinery or derricks or hoisting apparatus used
within or on the outside of any bridge, building or
other structure for conveying materials in connec-
148 BRADBURY'S WORKMEN'S COMPENSATION LAW
Arizona
tion with the erection or demolition of such bridge,
building or structure.
"5. All work on ladders or scaffolds of any kind
elevated twenty (20) feet or more above the ground
or floor beneath in the erection, construction,
repair, painting or alteration of any building,
bridge, structure or other work in which the same
dire used.
"6. All work of construction, operation, altera-
tion or repair, where wires, cables, switchboards,
or other apparatus or machinery are in use charged
with electrical current.
"7. All work in the construction, alteration or
repair of pole lines for telegraph, telephone or
other purposes.
"8. All work in mines; and all work in quarries.
"9. All work in the construction and repair of
tunnels, sub-ways and viaducts.
"10. All work in mills, shops, works, yards,
plants, and factories where steam, electricity, or
any other mechanical power is used to operate
machinery and appliances in and about such
premises.
L- 1B1Z- " § 68. In case such employe or his personal
Art. ii, § 4. representative shall refuse to settle for such com-
pensation (as provided in § 8 of Article XVIII of
the State Constitution),. and chooses to retain the
right to sue said employer (as provided in any law
provided for in § 7, Article XVIII of the State
Constitution) he may so refuse to settle and may
retain said right.
L- 1912> " § 69. It is hereby declared and determined
Art. w, §5. *° ^e contrary to public policy that any employer
conducting any especially dangerous industry,
through any of his or its officers, agents, or
L-i9i2. employ^ or employes, shall fail to exercise due
Art. ii', § 6. care> or ^ au t.° comply with any law affecting such
employment, in such manner as to endanger the
lives and safety of employes thereof, without as-
TO WHOM ACTS APPLY 149
Arizona
suming the burden of the financial loss through
disability entailed upon such employes, or their
dependents, through such failure; and it is further
declared and determined to be contrary to public
policy that the burden of the financial loss to em-
ployes in such dangerous employments, or to their
dependents, due to injuries to such employes re-
ceived through such accidents as are hereinbefore
mentioned shall be borne by said employes with-
out due compensation paid to said employes, or
their dependents, by the employer conducting
such employment, owing to the inability of said
employes to secure employment in said employ-
ments under a free contract as to the conditions
under which they will work.
"§ 70. The common-law doctrine of no liability l. 1912,
without fault is hereby declared and determined
to be abrogated in Arizona as far as it shall be
sought to be applied to the accidents hereinbefore
mentioned.
§ 71. When, in the course of work in any of
the employments described in . the third 1 sec-
tion above, personal injury by accident arising
out of and in the course of such labor, service, or
employment, is caused to or suffered by any work-
man engaged therein, by any risk or failure speci-
fied in the second section hereof, then such em-
ployer shall be liable to and must make and pay
compensation to the workman injured, and his
personal representative, when death ensues, for
the benefit of the estate of the deceased, for such
injury at the rates and in the manner hereinafter
set out in this Chapter:
"Provided, That the employer shall not be
liable under this Chapter in respect of any injury
which does not disable the workman for a period
of at least two weeks after the date of the accident
2d Ses.,
Art. 14, § 7.
1 This refers to § 67 of the Act of 1913. It was § 3 in the Act of 1912.
150 bradbxjry's workmen's compensation law
California
from earning full wages at the work at which he
was employed, at the time of the injury, and
"Provided, Further, that the employer shall
not be liable under this chapter in case the employe1
refuses to settle for such compensation and retains
his right to sue as provided in the fourth 1 section
of this Chapter."
l. i9i2, "§79. Any employer employing workmen to
2dSes»., perform labor or services of other kinds than
Art. 14, { 15. , , .
as denned in this Chapter, and such workmen
and employes may, by agreement, at any time
during the employment, accept and adopt the
provisions of this Chapter as to liability for ac-
cident, compensation, and the methods and means
of paying and securing and enforcing the same.
And in every such case the provisions of this Chap-
ter shall be taken in law and fact to bind the par-
ties as fully as if they were specifically mentioned
and embraced in the provisions of this Chapter."
CALIFORNIA
The California Act in its compulsory feature includes all
employers of labor. except "any person whose employment
is both casual and not in the usual course of the trade, busi-
ness, profession or occupation of his employer, and also ex-
cluding any employe* engaged in farm, dairy, agricultural,
viticultural or horticultural labor, in stock or poultry raising
or in household domestic service." § 14, Act of 1913.
Employers and employes not included in §§ 13 and 14
may by their joint election adopt the compensation principle.
§ 87. See Chapter IV for provisions as to manner of elect-
ing to come under the Act.
The provision of the Act of 1913, which specifies the em-
ployers and employes who are brought within its terms,
are contained in §§ 13 and 14 which read as follows:
"§ 13. The term 'employer' as used in sections twelve
1 This refers to § 68 of the Act of 1913. It was § 4 in the Act of 1912.
TO WHOM ACTS APPLY 151
Connecticut
to thirty-five, inclusive, of this act shall be construed to mean :
The state, and each county, city and county, city, school
district and all public corporations therein, and every person,
firm, voluntary association, and private corporation, (includ-
ing any public service corporation) who has any person in
service under any appointment or contract of hire, or ap-
prenticeship, express or implied, oral or written, and the legal
representatives of any deceased employer.
"§14. The term 'employ^' as used in sections twelve
to thirty-five, inclusive, of this act shall be construed to mean:
Every person in the service of an employer as defined by sec-
tion thirteen hereof under any appointment or contract of
hire or apprenticeship, express or implied, oral or written,
including aliens and also including minors, but excluding any
person whose employment is both casual and not in the usual
course of the trade, business, profession or occupation of his
employer, and also excluding any employe engaged in farm,
dairy, agricultural, viticultural or horticultural labor, in stock
or poultry raising or in household domestic service."
Under the Roseberry Act of 1911 it was held that em-
ployes of the State were not protected as the Act did not
apply to the State. Miller v. State of California, California
Industrial Accident Board, March 6, 1912; aff'd by the
Supreme Court of California; Miller v. Pillsbury, 000 Cal.000;
128 Pac. R. 327. The amended act, however, specifically
includes public employes.
As to who are casual employes see ante, page 136. The
California Act follows the British Statute and excludes only
such casual employes as are not engaged in the course of the
employer's trade, business, profession or occupation. Casual
employes who are engaged in the employer's trade, etc., are
entitled to compensation. See ante, page 136.
CONNECTICUT
Prima, facie, all employers and all employes are brought
within the terms of the Compensation Act by presumptive
election. Part B, § 2.
152 bradbury's workmen's compensation law
Connecticut
Any employer or employe1 may elect not to adopt the
compensation principle by taking the proceedings which
are specified in Chapter IV.
Most of the compensation acts provide that certain classes
of employes, such as domestic servants, farm laborers and
casual employe's are not brought within the terms of such
acts at all, excftpt in certain instances, by an affirmative
election on the part of the employer or the employe, or both.
The Connecticut Act differs in this respect from most of the
other compensation statutes. All classes of employes of
every nature whatsoever are brought within the compensa-
tion principle unless the employer or the employ^ takes some
affirmative steps to indicate his election to the contrary, or
the contract of employment contains such a stipulation. As
to certain classes of employers and employes penalties are at-
tached if an election is made not to adopt the compensation
principle, and as to certain other classes no penalty is at-
tached, if either employer or employe so elects. This special
exception applies to employers having regularly less than five
employes, to casual employes and to outworkers. Part A, § 2.
In other words, all employes are brought within the terms of
the Act in the first instance. Then if employers having regu-
larly less than five employes, or employers of casual em-
ployes, or employers of outworkers, desire to elect not to
adopt the compensation principle they must take the steps
which are specified in Chapter IV to indicate such an election,
unless the contract of employment specifically so stipulates.
"When any principal employer procures any work to be
done, wholly or in part for him, by a contractor, or through
him by a sub-contractor, and the work so procured to be
done is a part or process in the trade or business of such
principal employer, and is performed in, on, or about prem-
ises under his control, then such principal employer shall be
liable to pay all compensation under this Act to the same ex-
tent as if the work were done without the intervention of
such contractor or subcontractor." Part B, § 5.
TO WHOM ACTS APPLY 153
Illinois
. It should be remembered that employers are not com-
pletely under the Compensation Act, so as to be in a position
to limit the recovery of their employes to the amounts speci-
fied in the Act until they have complied with Part B, § 30,
in relation to assuring compensation payments. Part B,
§42.
"This act shall not affect the liability of employers or
employes engaged in interstate or foreign commerce, for
death or injury in case the laws of the United States pro-
vide for compensation or for liability for such death or in-
jury." Part B, § 40.
"Part B, §33. Obligations not to be Evaded. No con-
tract, expressed or implied, no rule, regulation, or other devise,
shall in any manner relieve any employer, in whole or in part,
of any obligation created by this act, except as herein set
forth."
ILLINOIS
Employments are classed as "extra hazardous" and "all
other" employments. The definition as to the employ-
ments which are extra hazardous is rather uncertain and
unsatisfactory. The statute specifies certain particular oc-
cupations which come within the terms thereof and then
provides that it shall apply "In any enterprise in which
statutory or municipal ordinance regulations are now or
shall hereafter be imposed for the regulating, guarding, use
or the placing of machinery or appliances, or for the protec-
tion and safeguarding of the employes or the public therein;
each of which occupations, enterprises or businesses are
hereby declared to be extra-hazardous." § 3 (&) subd. 8.1
1 Manifestly it would be impracticable to get together all the municipal
ordinances or regulations of the various cities, towns and villages of Illi-
nois which might be included in the section quoted in the text. This sec-
tion of the Illinois law has introduced an element of uncertainty which is
unfortunate. Many employers will never be able to determine in advance
of litigation whether or not they are under the statute.
154 bradbury's workmen's compensation law
Illinois
Those outside the extra hazardous class may elect to adopt
the compensation principle.
The following are the statutory provisions:
"§3. (a) In any action to recover damages against an
employer, engaged in any of the occupations, enterprises or
businesses enumerated in paragraph (jb) of this section, who
shall elect not to provide and pay compensation to any em-
ploy^, according to the provisions of this Act, it shall not be a
defense, that: First, the employe" assumed the risks of the em-
ployment; second, the injury or death was caused in whole or
in part by the negligence of a fellow-servant; or third, the
injury or death was proximately caused by the contributory
negligence of the employe.
" (b) The provisions of paragraph (a) of this section shall
only apply to an employer engaged in any of the following
occupations, enterprises or businesses, namely:
"1. The building, maintaining, repairing or demolishing
of any structure;
" 2. Construction, excavating or electrical work;
"3. Carriage by land or water and loading and unloading
in connection therewith;
" 4. The operation of any warehouse or general or terminal
store houses;
"5. Mining, surface mining or quarrying;
"6. Any enterprise in which explosive materials are manu-
factured, handled or used in dangerous quantities;
"7. In any enterprise wherein molten metal, or explosive
or injurious gases qr vapors, or inflammable vapors or fluids,
or corrosive acids, are manufactured, used, generated, stored
or conveyed in dangerous quantities;
"8. In any enterprise in which statutory or municipal
ordinance regulations are now or shall hereafter be imposed
for the regulating, guarding, use or the placing of machinery or
appliances, or for the protection and safeguarding of the em-
ployes or the public therein; each of which occupations, enter-
prises or businesses are hereby declared to be extra-hazardous.
"§4. The term 'employer' as used in this Act shall be
construed to be:
TO WHOM ACTS APPLY 155
Illinois
"First — The State and each county, city, town, township,
incorporated village, school district, body politic, or municipal
corporation therein.
"Second — Every person, firm, public or private corporation,
including hospitals, public service, eleemosynary, religious,
or charitable corporations or associations who has any person
in service or under any contract for hire, express or implied,
oral or written, and who, at or prior to the time of the ac-
cident to the employe" for which compensation under this Act
may be claimed, shall in the manner provided in this Act
have elected to become subject to the provisions of this Act,
and who shall not, prior to such accident, have effected a
withdrawal of such election hi the manner provided in this
Act.
" § 5. The term ' employe^' as used in this Act shall be
construed to mean:
"First — Every person in the service of the State, county,
city, town, township, incorporated village or school district,
body politic, or municipal corporations therein, under ap-
pointment, or contract of hire, express or implied, oral or
written, except any official of the State, or of any county,
city, town, township, incorporated village, school district,
body politic, or municipal corporation therein; and except
any employe" thereof for whose accidental injury or death
arising out of and in the course of his employment compen-
sation or a pension shall be payable to him, his personal rep-
resentative, beneficiaries or heirs, from any pension or benefit
fund to which the State, or any county, city, town, township,
incorporated village, school district, body politic, or municipal
corporation therein contributes in whole or in part: Provided
that one employed by a contractor who has contracted with
the State, or a county, city, town, township, incorporated
village, school district, body politic, or municipal corporation
therein, through its representatives, shall not be considered
as an employe" of the State, county, city, town, township, in-
corporated village, school district, body politic or municipal
corporation which made the contract.
"(Second— Every person in the service of another under any
contract of hire, express or implied, oral or written, including
156 bradbury's workmen's compensation law
Iowa
aliens, and minors who are legally permitted to work under
the laws of the State, who, for the purpose of this Act, shall be
considered the same and have the same power to contract,
receive payments and give quittances therefor, as adult em-
ployes, but not including any person whose employment is but
casual 1 or who is not engaged in the usual course of the trade,
business, profession, or occupation of his employer: Provided,
that employes shall not be included within the provisions of
this Act when excluded by the laws of the United States re-
lating to liability of employers to their employes for personal
injuries where such laws are held to be exclusive."
All employers specified in § 3 (6) quoted above are pre-
sumed to have elected to adopt the compensation principle
unless they take the steps specified in Chapter IV to indicate
a contrary intention.
The portion relating to contractors and subcontractors is
found in § 31 of the Act. See Chapter VII.
IOWA
There is considerable confusion between Part I, § 1 (a)
and Part I, § 17 (6) of the Iowa Act. According to Part I,
§ 1 (a) the Act does not apply to "any household or domestic
servant, farm or other laborer engaged in agricultural pur-
suits, nor persons whose employment is of a casual nature."
According to Part I, § 17 (6) the word "workman" as used
in the Act, means all employes generally "except a person
whose employment is purely casual and not for the purpose
of the employer's trade or business or those engaged in
clerical work only, but clerical work shall not include one
who may be subjected to the hazards of the business or
one holding an official position or standing in a representa-
tive capacity of the employer, or an official elected or ap-
1 See ante, page 136, for a discussion of who are "casual" employed.
It will be seen that the Illinois statute is very broad and excludes all
casual employes in addition to excluding all those (whether casual em-
ployes or not) who are not " engaged in the usual course of the trade," etc.
TO WHOM ACTS APPLY 157
Iowa
pointed by the State, county, school district, municipal
corporation, cities under special charter and commission
form, of government. Provided, that one who sustains the
relation of contractor with any person, firm, association,
corporation -or the State, county, school district, municipal
corporation, cities under special charter or commission form
of government, shall not be considered an employe1 thereof."
It will be seen from the above that § 17 (6) contains an
exception to an exception. In other words clerical employes
who are not subjected to the hazards of the business do not
come within the terms of the Act, and clerical employes
who are subjected to the hazards of the business do come
within its terms. It is very uncertain whether those holding
official positions, those standing in a representative capacity
of the employer, officials elected or appointed by the State,
counties, school districts, municipal corporations, cities
under special charter and commission form of government
are within the terms of the Act. It is perhaps to be assumed
that it was the intention of the Legislature to exclude such
officials and officers. But the statute does not say so in
anything like plain terms. The portions of § 17 (6), relating
to such officials, might very well be governed by the sentence
"but clerical work shall not include one who may be sub-
jected to the hazards of the business." Of course, if the
subsequent portions of the section are mere additions to the
sentence set forth above, then those holding official positions
are covered by the Act, because it is provided that they are
not deemed to be engaged in clerical work. But if the pro-
visions as to those holding official positions is assumed to be
read as if it came immediately after the words "or those
engaged in clerical work only," and the intervening words
are to be entirely omitted, then appointed and elected of-
ficials do not come within the terms of the Act.1
1 To make the matter plain the statute is printed below:
"Workman * * * means any person who has entered into a contract
of employment * * * except a person * * * engaged in clerical work
158 bradbury's workmen's compensation law
Iowa
It is also to be noted that the definition of a workman,
contained in Part I, § 17 (&) does not exclude domestic serv-
ants or farm laborers, while such servants and laborers are
excluded in Part I, § 1 (a).
Again, the definition of casual employes, contained in
Part I, § 1 (a) is entirely different from the definition con-
tained in Part I,*§ 17 (6). In § 17 (fe) the provision is "ex-
cept a person whose employment is purely casual and not
for the purpose of the employer's trade or business." In
§ 1 (a) the provision is "nor persons whose employment is
of a casual nature." The provision of § 1 (a) is very much
broader than that contained in § 17 (6), because it excludes
all casual employes while the provision of § 17 (6) excludes
only casual employes whose employment is "not for the pur-
pose of the employer's trade or business." Therefore, under
§ 17 (6) a casual employe1 who was engaged for the purpose of
the employor's trade or business would be covered by the
Compensation Act. Section 17 (b) follows the British Com-
pensation Act, while § 1 (a) follows the provisions of a few
of the statutes adopted in the American states. The provi-
sions of the statute relating to this subject are as follows:
'Parti, § 1, (a). Except as by this Act otherwise provided,
it shall be conclusively presumed that every employer as de-
fined by this act has elected to provide, secure and pay com-
pensation according to the terms, conditions, and provisions
of this Act for any and all personal injuries sustained by an
employe1 arising out of and in the course of the employment;
and in such cases the employer shall be relieved from other
liability for recovery of damages or other compensation for
only, * * * or one holding an official position or standing in a representa-
tive capacity of the employer, or an official elected or appointed by the
State, County, School District, Municipal Corporation, Cities under
Special Charter, and Commission form of Government." If the statute
read as above the meaning would be clear. Now read Part I, § 17, (6)
on page 159, with the words "but clerical work shall not include one who
may be subjected to the hazards of the business" inserted in place of the
last elision and it will be seen that the meaning is much less clear.
TO WHOM ACTS APPLY 159
Iowa
such personal injury, unless by the terms of this Act other-
wise provided; but this Act shall not apply to any household
or domestic servant, farm or other laborer engaged in agri-
cultural pursuits, nor persons whose employment is of a
casual nature.
"(b) Where the state, county, municipal corporation,
school district, cities under special charter and commission
form of government is the employer, the terms, conditions
and provisions of this act for the payment of compensation
and amount thereof for such injury sustained by an employe1
of such employer shall be exclusive, compulsory and oblig-
atory upon both employer and employed"
"Part I, § 17. In this act unless the context otherwise
requires:
"(a) 'Employer' includes and applies to any person, firm,
association or corporation, and includes State, Counties,
Municipal Corporation, Cities und£r special Charter and
under Commission form of Government and shall include
school districts and the legal representatives of a deceased
employer. Whenever necessary to give effect to section
seven of this act, it includes a principal or intermediate
contractor.
"(b) 'Workman' is used synonymous with 'employe^ and
means any person who has entered into the employment of,
or works under contract of service, express or implied, or
apprenticeship for an employer, except a person whose em-
ployment is purely casual and not for the purpose of the em-
ployer's trade or business or those engaged in clerical work
only, but clerical work shall not include one who may be sub-
jected to the hazards of the business or one holding an official
position or standing in a representative capacity of the em-
ployer, or an official elected or appointed by the State, County,
School District, Municipal Corporation, Cities under special
Charter and Commission form of Government. Provided,
that one who sustains the relation of contractor with any
person, firm, association, corporation or the State, County,
School District, Municipal Corporation, Cities under special
Charter or Commission form of Government, shall not be
considered an employe" thereof.
160 BRADBURY'S WORKMEN'S COMPENSATION LAW
Kansas
"The term 'Workman' shall include the singular and
plural of both sexes. Any reference to a workman who has
been injured shall, where the workman is dead, include a
reference to his dependents as herein defined, legal represen-
tatives or where the workman is a minor or incompetent
to his guardian or next friend."
"Part I, § 22. The provisions of this act shall apply to
employers antl employes as defined in this Act engaged in
intra-state commerce and also those engaged in inter-state
or foreign commerce for whom a rule or method of compen-
sation has been or may be established by the Congress of the
United States, only to the extent that their mutual con-
nection with intra-state work or foreign commerce shall be
clearly separable and distinguishable from inter-State or
foreign commerce; provided that any such employer and
workman of such employer working only in this State may,
subject to the approval of the Iowa Industrial Commissioner,
and so far as not forbidden by any Act of Congress or per-
mitted, voluntarily by written agreement, accept and become
bound by the provisions of this Act in like manner and with
the same force and effect in every respect as by this Act pro-
vided for other employers and employes."
" § 8. No contract, rule, regulation or device whatsoever
shall operate to relieve the employer, in whole or in part,
from any liability created by this act except as herein pro-
vided."
"§ 13. The compensation herein provided shall be the meas-
ure of the responsibility which the employer has assumed for
injuries or death that may occur to employe's in his employ-
ment subject to the provisions of this act, and it shall not be
in anywise reduced by contribution from employes."
KANSAS
The Kansas Act applies to certain hazardous employ-
ments only. It specifically excludes agricultural pursuits
and employments incident thereto, and employers who hav.e
not employed continuously for more than a month prior
to an accident five or more workmen, except that workmen
TO WHOM ACTS APPLY 161
Kansas
in mines are included irrespective of the number. It only
includes such employes as are engaged in the course of the
employer's trade or business. This, of course, would ex-
clude domestic servants. The provisions of the Act in this
subject are as follows:
"§6. Application of tlie act. This act shall apply only
to employment in the course of the employer's trade Or
business on, in or about a railway, factory, mine or quarry,
electric, building or engineering work, laundry, natural gas
plant, county and municipal work, and all employments
wherein a process requiring the use of any dangerous ex-
plosive or inflammable materials is carried on, which is con-
ducted for the purpose of business, trade or gain; each of
which employments is hereby determined to be especially
dangerous, in which from the nature, conditions or means of
prosecution of the work therein, extraordinary risk to the
life and limb of the workman engaged therein are inherent,
necessary, or substantially unavoidable, and as to each of
which employments it is deemed necessary to establish a
new system of compensation for injuries to workmen. This
act shall not apply in any case where the accident occurred
before this act takes effect, and all rights which have accrued,
by reason of any such accident, at the time of the publication
of this act, shall be saved the remedies now existing therefor,
and the court shall have the same power as to them as if this
act had not been enacted. Agricultural pursuits and em-
ployments incident thereto are hereby declared to be non-
hazardous and exempt from the provisions of this act. (As
am'd by L. WIS, c. 216, approved March 10, WIS, in effect
March 12, WIS.)
"§8. It is hereby determined that the necessity for this
law and the reason for its enactment, exist only with re-
gard to employers who employ a considerable number of
persons. This act, therefore, shall only apply to employers by
whom five or more workmen have been (employed) contin-
uously for more than one month at the time of the accident;
provided, however, that employers having less than five
workmen may elect to come within the provisions of this act
11
182 bradbury's workmen's compensation law
Kansas
in which case his employes shall be included herein, as here-
inafter provided; and, provided further that this act shall
apply to mines without regard to number of workmen em-
ployed." (As am'd by L. 1918, c. 216, approved March 10,
1918, in effect March 12, 1913.)
" § 9. Definitions. In this act, unless the context other-
wise requires, (a) 'Railway' includes street railways and
interurbans; and 'employment on railways' includes work
in depots, power houses, roundhouses, machine shops, yards,
and upon the right of way, and in the operation of its
engines, cars and trains, and to employes of express companies
while running on railroad trains. (6) 'Factory' means any
premises wherein power is used in manufacturing, making,
altering, adapting, ornamenting, finishing, repairing or reno-
vating any article or articles for the purpose of trade or gain or
of the business carried on therein, including expressly any
brickyard, meat-packing house, foundry, smelter, oil refinery,
lime burning plant, steam heating plant, electric lighting
plant, electric power plant and water power plant, powder
plant, blast furnace, paper mill, printing plant, flour mill,
glass factory, cement plant, artificial gas plant, machine or
repair shop, salt plant, and chemical manufacturing plant,
(c) 'Mine' means any opening in the earth for the purpose of
extracting any minerals, and all underground workings,
slopes, shafts, galleries, and tunnels, and other ways, cuts
and openings connected therewith, including those in the
course of being opened, sunk or driven; and includes all the
appurtenant structures at or about the openings of the mine,
and any adjoining adjacent work place where the material
from a mine is prepared for use or shipment, (d) 'Quarry'
means any place, not a mine, where stone, slate, clay, sand,
gravel or other solid material is dug or otherwise extracted
from the earth for the purpose of trade or bargain or of the
employer's trade or business, (e) 'Electrical work' means
any kind of work in or directly connected with the construc-
tion, installation, operation, alteration, removal, or repair
of wires, cables, switchboards or apparatus, used for the
transmission of electrical current. (f) 'Building work' means
any work in the erection, construction, extension, decoration,
TO WHOM ACTS APPLY 163
Kansas
alteration, repair or demolition of any building or structural
appurtenances. (</) 'Engineering work' means any work in
the construction, alteration, extension, repair or demolition
of a railway (as hereinbefore defined) bridge, jetty, dike,
dam, reservoir, underground conduit, sewer, oil or gas well,
oil tank, gas tank, water tower, or water works (including
standpipes or mains) any caisson work or work in artificially
compressed air, any work in dredging, pile driving, moving
buildings, moving safes, or in laying, repairing or removing,
underground pipes and connections, the erection, installing,
repairing, or removing of boilers, furnaces, engines and power
machinery, (including belting and other connections) and
any work in grading or excavating where shoring is necessary
or power machinery or blasting powder, dynamite or other
high explosives is in use (excluding mining and quarrying).
(h) 'Employer' includes any person or body of persons cor-
porate or incorporate, and the legal representatives of a de-
ceased employer or the receiver or trustee of a person, cor-
poration, association or partnership, (i) 'Workman' means
any person who has entered into the employment of or works
under contract of service or apprenticeship with an employer,
but does not include a person who is employed otherwise
than for the purpose of the employer's trade or business.
Any reference to a workman who has been injured shall,
where the workman is dead, include a reference to his de-
pendents, as hereinafter defined, or to his legal representative,
or where he is a minor or incompetent, to his guardian. (J)
'Dependents' means such members of the workman's family
as were wholly or in part dependent upon the workman at
the time of the accident. And 'members of a family' for the
purpose of this act means only widow or husband, as the case
may be, and children; or if no widow, husband or children,
then parents and grandparents, or if no parents or grand-
parents, then grandchildren; or if no grandchildren, then
brothers and sisters. In the meaning of this section parents
include step-parents, children include step-children, and
grandchildren include step-grandchildren, and brothers and
sisters include step-brothers and step-sisters, and children
and parents include that relation by legal adoption, (k) The
164 bradbury's workmen's compensation law
Maryland
words 'Arising out of and in the course of employment' as
used in this act shall not be construed to include injuries
to the employe occurring while he is on his way to assume
the duties of his employment or after leaving such duties,
the proximate cause of which injury is not the employer's
negligence." (As am'd by L. 1913, c. 216, approved March 10,
1913, in effect M&rch 12, 1913.)
MARYLAND
The law applies to employers and employes who have
made contracts to pay and accept compensation according
to the schedule in the Act in lieu of any other rights or
liabilities. § 1. See Chapter IV.
The employer must insure in an insurance 6ompany
authorized to do business in Maryland, or carry the risk
himself under certain restrictions or deposit funds with the
Insurance Commissioner. § 2.
" § 3. Such insurance shall cover the risk of personal
injury by accident arising out of and in course of the employ-
ment resulting in death, provided death occur within twelve
months from the time of such injury, or resulting in disability,
whether the same be total or partial, permanent or temporary;
But no one shall be entitled to pay any benefit hereunder
where the injury is the result of the employees intoxication,
or wilful and deliberate act, or deliberate intention to produce
such injury."
"§ 19. Nothing in this act contained shall be construed
as authorizing any employer, or any officer or agent of such
employer to require any employ^ or any person seeking em-
ployment, as a condition of such employment or of the con-
tinuance of such employment, to enter into a contract, or to
continue in such contract, such as is authorized to be made by
section 1 of this act."
TO WHOM ACTS APPLY 165
Massachusetts
MASSACHUSETTS
The Massachusetts Act is elective and an employer to adopt
the compensation principle must secure a policy of insurance
in one of the associations or companies authorized to do
business in Massachusetts covering his liability to his em-
ployes. By an amendment contained in L. 1913, c. 807,
which took effect June 16, 1913, all employes of the Common-
wealth of Massachusetts were brought within the Act, by
compulsion, and employes of any political subdivision of the
commonwealth having the power of taxation, are permitted
by the same amendment to adopt the compensation principle.
All employes of private employers in the State are subject
to the provisions of the law in relation to compensation ex-
cept "masters of and seamen on vessels engaged in inter-
state or foreign commerce, and except one whose employment
is but casual, or is not in the usual course of the trade, busi-
ness, profession or occupation of his employer." Part V,
§ 2, as am'd by L. 1913, c. 568. There does not appear to
be any way in which those in the excepted classes can be
brought within the terms of the Compensation Act. The
section from which the above quotation is taken provides
that the term "employe" shall have the meaning therein
specified "unless a different meaning is plainly required by
the context." In the portions of Part I and Part II, relating
to the compensation features of the statute there is nothing
which would require a different meaning to the word "em-
ploye." It also should be observed that the word "casual,"
as used in the Massachusetts Act, is very broad in its mean-
ing. It excludes all casual employe's from the operation of
the Act. In this respect the Massachusetts statute does not
follow the British Workmen's Compensation Act. The
British Act excludes "a person whose employment is of a
casual nature and who is employed otherwise than for the
purposes of the employer's trade or business." § XIII.
That is, casual employes who are engaged for the purposes of
166 bradbury's workmen's compensation law
Massachusetts
the employer's trade or business are covered by the Act, as
has been held by the British courts. See ante, page 136.
It is held that "outworkers" do not come within the pro-
visions of the Act. Bulletin No. 2, Mass. Indus. Ace. Board,
Jan., 1913, p. 13.
Salesmen selling on commission are employes who come
within the provisions of the Compensation Act. Bulletin
No. 2, Mass. Indus. Ace. Board, Jan., 1913, p. 13. The
Board adds that this would not apply to commission brokers
whose status was that of independent contractors.
A man engaged to work around the premises and wash
windows of a family hotel where suites are leased and a dining
room is provided for the tenants, was held to be an employe
within the meaning of the Act. Bulletin No. 2, Mass. Indus.
Ace. Board, Jan., 1913, p. 11.
It should be observed that farm laborers and domestic
servants are not, in specific terms, entirely excluded from
the operation of the Massachusetts Act. As to farm la-
borers, at any rate, the employer may adopt the compensa-
tion principle, but if he does not do so, no penalty is in-
flicted and his common-law defenses are not taken away
from him as they are in relation to other classes of em-
ployers. Part I, § 2.
There is an inconsistency between Part I, § 2, and Part V,
§ 2, in relation to domestic servants. So far as Part I, § 2
is concerned domestic servants may be brought within the
terms of the Compensation Act if the employer chooses to
adopt the compensation principle. On the other hand,
Part V, §2, provides that employes whose employment
"is not in the usual course of the trade, business, profession
or occupation" of their employers are not included within
the terms of the Compensation Act at all. As household
domestic servants come within this definition it does not
appear that they can be brought within the terms of the
Compensation Act at all. The provision in Part I, § 2, to
the effect that the abolition of defenses does not apply to
TO WHOM ACTS APPLY 167
Michigan
employers of domestic servants is unnecessary, therefore,
as domestic servants in no event can be brought within the
terms of the Compensation Act.
Following this construction the Massachusetts Industrial
Accident Board has held that a private chauffeur is not
entitled to compensation, as he is either a domestic servant
or an employe1 whose employment "is not in the usual
course of the trade, business, profession or occupation"
of his employer.
"Part V, § 2. The following words and phrases, as used
in this Act, shall, unless a different meaning is plainly re-
quired by the context, have the following meaning: —
"'Employer' shall include the legal representative of a
deceased employer.
"'Employe' shall include every person in the service of
another under any contract of hire, express or implied, oral
or written, except masters of and seamen on vessels engaged
in interstate or foreign commerce, and except one whose
employment is but casual, or is not in the usual course of the
trade, business, profession or occupation of his employer.
Any reference to an employe who has been injured shall, when
the employ^ is dead, also include his legal representatives,
dependents and other persons to whom compensation may be
payable." (As am'd by L. 1913, c. 568.)
"Part II, §20. No agreement by an employ^ to waive
his rights to compensation under this act shall be valid."
MICHIGAN
The Michigan Act brings within its terms all employes,
whether in public or private employments, except "any
person whose employment is but casual or is not in the
usual course of the trade, business, profession or occupation
of his employer." Part I, § 7, subd. 2. As to those in public
employments the act is compulsory and to those in private
employments it is elective.
While private employers, with the exceptions noted, are
brought within the terms of the act prima facie, without
168 bradbuey's workmen's compensation law
Michigan
taking any steps whatsoever, so far as their liability is con-
cerned, nevertheless, they must assure the payment of
compensation, in the manner pointed out in Chapter IV,
before they can limit the recovery of employes to the amount
specified in the compensation provision of the statute.
The provision quoted above as to casual and other classes
of employes who are excepted from the operation of the
statute is two-fold in its operation. The British statutes
from which this provision was originally taken only excludes
"a person whose employment is of a casual nature and who
is employed otherwise than for the purposes of the em-
ployer's trade or business." § XIII. The Michigan Act,
however, excludes all casual employes and also all persons
whose employment "is not in the usual course of the trade,
business, profession or occupation" of their employers. This
construction would, of course, exclude household domestic
servants, although it would not exclude some servants who
are not infrequently termed "domestic servants," such as
cooks, waitresses and chambermaids in hotels, restaurants
and probably in boarding houses.
Employes engaged in interstate and foreign commerce
are included only so far as they are not subject to the Fed-
eral Act. Part VI, § 4.
Farm laborers are brought within the terms of the Act
but employers of such laborers may, by appropriate pro-
ceedings, elect to reject the compensation principle without
suffering any penalty, except being liable for damages for
negligence under the same doctrines that applied before the
enactment of the Compensation Statute. Part I, § 2. The
same rule would apply to household domestic servants
under this section, were it not for the provision of Part I,
§ 7, subd. 2, quoted above to the effect that the word "em-
ploye" as used in the Act shall not include a person whose
employment "is not in the usual course of the trade, busi-
ness, profession or occupation of his employer." It would
seem, therefore, that under the latter section an employer
TO WHOM ACTS APPLY 169
Michigan
would be powerless to bring household domestic servants
within the compensation principle at all. Probably this
was not the construction intended by the Legislature, but
the statute is plain. The confusion appears to have arisen
from coupling the provision relating to casual employe's
with that referring to those not engaged in the usual course
of the trade, etc., of the employer. The difficulty would
be eliminated entirely by amending the last sentence of
Part I, § 7, subd. 2, so as to read as follows: "but not in-
cluding any person whose employment is but casual and
not in the usual course of the trade, business, profession or
occupation of his employer."
As the statute now reads it would apply, by election, to
farm laborers employed by a farmer who made his living
out of a farm, but not to such laborers employed on a farm
run not for profit but merely as a homestead or residence,
the farming being a mere incident or avocation. See discus-
sion of this subject ante, page 136.
A roofer was employed by the Michigan Agricultural
College to repair a portion of the roof thereof, in 1912, and
was compensated at the rate of 40c an hour. In the spring
of 1913 the roof was injured by heavy winds and the same
man was employed to repair the same for which he was to
receive 40c an hour. The workman did not maintain a
regular shop or place of business, except that he had a room
in a basement where his tools and stock were kept and where
some of his work was done. He was accustomed to take
such jobs in his line as he could procure, working usually by
the hour. He was subject to the directions of the officials
of the college and could have been discharged by them at
any time. While engaged in doing the work he fell from a
ladder, fracturing his left leg. It was contended by the
college that it was a State institution created under the Con-
stitution of the State of Michigan, and that the workman
was a casual employe and liability for compensation was
denied. The Board held that the college came within § 7,
170 bradbury's workmen's compensation law
Michigan
subd. 1 of the Michigan Workmen's Compensation Act and
that it was liable to its employes for compensation. The
Board also held that subd. 2 of § 7 providing that casual
employes should not be entitled to compensation did not
apply to public employers, such as the State or any public
institution. Compensation, therefore, was awarded. Agler
v. Michigan Agricultural College, Michigan Industrial Ac-
cident Board, Nov. 3, 1913; The Indicator, Nov. 5, 1913,
p. 442.
"Part I, §5. The following shall constitute employers sub-
ject to the provisions of this act:
" 1. The State, and each county, city, township, incorporated
village and school district therein, and each incorporated
public board or public commission in this State authorized by
law to hold property and to sue or be sued generally; (As
am'd by L. 1913, Approved April 10, 1913.)
"2. Every person, firm and private corporation, includ-
ing any public service corporation, who has any person in
service under any contract of hire, express or implied, oral or
written, and who, at or prior to the time of the accident to
the employ^ for which compensation under this act may be
claimed, shall in the manner provided in the next section,
have elected to become subject to the provisions of this act,
and who shall not, prior to such accident, have effected a
withdrawal of such election, in the manner provided in the
next section."
"§ 7. The term 'employe' as used in this act shall be con-
strued to mean;
"1. Every person in the service of the State, or of any
county, city, township, incorporated village or school district
therein, under any appointment, or contract of hire, express
or implied, oral or written, except any official of the State, or
of any county, city, township, incorporated village or school
district therein: Provided, That one employed by a con-
tractor who has contracted with a county, city, township,
incorporated village, school district or the State, through its
representatives, shall not be considered an employ^ of the
TO WHOM ACTS APPLY 171
Minnesota
State, county, city, township, incorporated village or school
district which made the contract;
"2. Every person in the service of another under any con-
tract of hire, express or implied, oral or written, including
aliens, and also including minors who are legally permitted
to work under the laws of the State who, for the purposes of
this act, shall be considered the same and have the same power
to contract as adult employes, but not including any person
whose employment is but casual or is not in the usual course
of the trade, business, profession or occupation of his employer.
"Part VI, §4. The provisions of this act shall apply to
employers and workmen engaged in intrastate commerce,
and also to those engaged in interstate or foreign commerce,
for whom a rule of liability or method of compensation has
been or may be established by the congress of the United
States, only to the extent that their mutual connection with
intrastate work may and shall be clearly separable and dis-
tinguishable from interstate or foreign commerce, except
that any such employer and any of his workmen working
only in this State, may, subject to the approval of the in-
dustrial accident board, and so far as not forbidden by any
act of congress, voluntarily accept and become bound by the
provisions of this act in like manner and with the same force
and effect in all respects as is hereinbefore provided for other
employers and their workmen."
"Part II, § 20. No agreement by an employe1 to waive
his rights to compensation under this act shall be valid."
MINNESOTA
The Minnesota Act covers all employes except those en-
gaged in interstate commerce, "domestic servants, farm
laborers, or persons whose employment at the time of the
injury is but casual and not in the usual course of the trade,
business, profession or occupation of his employer." Part 2,
§ 8. As to the excepted employments it does not appear
that there is any way in which they can be brought within
the terms of the compensation feature at all.
The term "casual employes" as used in this statute is
172 bradbury's workmen's compensation law
Nebraska
limited to those casual employes whose employment is "not
in the usual course of the trade, business, profession or oc-
cupation" of their employers. In this respect it follows the
British statute. Such casual employes as are engaged in
the usual course of the trade, business, profession or occupa-
tion of their employers come within the terms of the act.
See ante, page 136.
The term " employer " as used in the act includes municipal
corporations and all subdivisions of the State, but not the
State itself. § 34 (d). The word "employe" includes all
employes except those specifically excluded as stated above
and excluding also "any official of any county, city, town,
village or school district therein, who shall have been elected
or appointed for a regular term of office, or to complete the
unexpired portion of any regular term." § 34 (g) (1).
All employers other than those especially excepted are
presumed to have adopted the compensation principle un-
less they take the steps pointed out in Chapter IV to indicate
the contrary intent.
NEBRASKA
The Nebraska Act divides the employments into hazard-
ous and non-hazardous occupations so far as private em-
ployers are concerned. It specifies that "employers of
household domestic servants, employers of farm laborers
and all employers employing less than five employes, in the
regular trade, business, profession or vocation of such em-
ployer" are not hazardous and therefore are not within the
provisions of the Act. Railroad Companies engaged in
interstate or foreign commerce are declared to be subject
to the powers of Congress and not within the provisions of
the act. Part I, § 6. A further exclusion is made in the
definition of employes which provides that the Act "shall
not be construed to include any person whose employment
is casual, or not for the purpose of gain or profit by the em-
TO WHOM ACTS APPLY 173
Nebraska
ployer, or which is not in the usual course of the trade, busi-
ness, profession or occupation of his employer. The term
'casual' shall be construed to mean: 'occasional; coming at
certain times without regularity, in distinction from stated
or regular'." Part 2, § 15 (3) . Outworkers are also excluded
from the operation of the act. Part 2, § 15 (4).
The act brings within its terms all employers and em-
ployes including the State and every governmental agency
created by it except those specifically excluded as above
stated.
Certain employers and employe's in the excluded sections
may, by their joint election, come within the terms of the
act. The statute is somewhat inconsistent on this subject,
and probably does not mean exactly what it says. Em-
ployers of household domestic servants, of farm laborers
and employers employing less than five employes by a strict
reading of the statute cannot bring themselves within the
terms of the Compensation Act, because subd. (3) of § 6
of Part I provides that employers "not included in the pre-
ceding paragraphs of this section and the employes of such
employer may, by their joint election," adopt the com-
pensation principle. The employers included in the pre-
ceding paragraphs are those of household domestic servants,
farm laborers and employers employing less than five em-
ployes. They also include railroads engaged in interstate
or foreign commerce. Doubtless the intent was to provide,
in effect, that those excluded from the operation of the
Act by Part I, § 6 (2) should be permitted to come under
the Act by election. But if this is so the phraseology used
is very unfortunate.
In relation to the employments specified in Part 2, § 15,
subds. (3) and (4), (casual employes, outworkers, etc., see
above) it is provided that the word "employ^" does not in-
clude those classes at all, and therefore they are apparently
excluded from the operation of the act, without the power
to adopt it by election or otherwise.
174 bradbury's workmen's compensation law
Nebraska
"Part I, § 6. (1) The provisions of this Act shall apply
to the State of Nebraska and every governmental agency
created by it, and every employer in this State employing
five or more employes, in the regular trade, business, pro-
fession or vocation of such employer.
" (2) The following are declared not to be hazardous occu-
pations and^not within the provisions of this Act; employers
of household domestic servants, employers of farm laborers
and all employers employing less than five employes, in the
regular trade, business, profession or vocation of such em-
ployer. Railroad companies engaged in interstate or foreign
commerce are declared subject to the powers of congress and
not within the provisions of this Act.
"(3) Any employer not included in the preceding para-
graphs of this section and the employes of such employer may,
by their joint election, filed with the Insurance Commissioner,
accept the provisions of Part II of this Act, and such accept-
ance shall subject them to the said provisions of Part II
hereof to all intents and purposes as if they had been origi-
nally included in the terms of Subdivision 2 of this section;
Provided, however, that either such employer or workmen
(prior to accident) shall have the right to waive such election
to come under Part II hereof, the procedure being the same
as indicated in Subdivisions (a) and (b) of Section 12."
Part II, § 14. (Employer described). The following shall
constitute employers subject to the provisions of this act:
"(1) The State and every governmental agency created by
it;
"(2) Every person, firm or corporation, including any
public service corporation, who is engaged in any trade,
occupation, business, or profession as described in Section 6,
and who has any person in service under any contract of hire,
express or implied, oral or written, and who prior to the time of
the accident to the employ6 for which compensation under this
Act may be claimed, shall not, in the manner provided in Sec-
tion 12, have elected not to become subject to the provisions of
Part II of this Act.
"Part II, § 15. (Employe* described.) The terms 'em-
ploye' and 'workman' are used interchangeably and have
TO WHOM ACTS APPLY 175
Nebraska
the same meaning throughout this Act; the said terms include
the plural and all ages and both sexes, and shall be construed
to mean:
"(1) Every person in the service of the State or of any
governmental agency created by it, under any appointment
or contract of hire, express or implied, oral or written, but
shall not include any official of the State, or of any govern-
mental agency created by it, who shall have been elected or
appointed for a regular term of office, or to complete the un-
expired portion of any regular term.
" (2) Every person in the service of any employer who is
engaged in any trade, occupation, business or profession as de-
scribed in Section 6, under any contract of hire, express or im-
plied, oral or written, including aliens and also including
minors who are legally permitted to work under the laws of the
State, who for the purposes of making election of remedies
under this Code shall have the same power of contracting and
electing as adult employes.
" (3) It shall not be construed to include any person whose
employment is casual, or not for the purpose of gain or profit
by the employer, or which is not in the usual course of the
trade, business, profession or occupation of his employer.
The term 'casual' shall be construed to mean: 'Occasional;
coming at certain times without regularity, in distinction from
stated or regular.'
"(4) It shall not be construed to include any person to
whom articles and materials are given to be made up, cleaned,
washed, finished, repaired or adapted for sale in the worker's
own home or on other premises not under the control or man-
agement of the employer, unless the employe1 is required to
perform the work at a place designated by the employer."
"Part II, §29. (Liability of joint employers). In case
any employe1 for whose injury or death compensation is pay-
able under this Act shall, at the time of the injury, be em-
ployed and paid jointly by two or more employers subject to
this Act, such employers shall contribute to the payment of
such compensation in proportion to their several wage lia-
bilities to such employe1. If one or more, but not all of such
employers should be subject to the provisions of Part II of
176 bradbury's workmen's compensation law
New Hampshire
this Act, then the liability of such of them as are so subject
shall be to pay that proportion of the entire compensation
which their proportionate wage liability bears to the entire
wages of the employe^ provided, however, that nothing in this
section shall prevent any arrangement between employers
for a different distribution between themselves of the ulti-
mate burden of compensation."
" § 31. (No waiver of rights.) No agreement by an employe1
to waive his rights to compensation under this Act shall be
valid."
NEVADA
The Nevada Act applies to all employers who employ
two or more employes in the same general employment and
in the usual and ordinary transaction of the business. § 1
(a), except employers of domestic servants and farm la-
borers. § 43. All other employers are presumed to have
elected to pay compensation. This includes the State and
all political subdivisions thereof except that in such case
the limitation as to two employes does not apply. § 1
(6). All employers except the State and political subdi-
visions may elect to reject the compensation principle by
taking the steps specified in Chapter IV.
In order to bring themselves within the provisions of the
statute, however, employers must take the necessary steps
to join the State Insurance Fund by paying the premiums
required by the Act, as the only manner in which employers
can adopt the compensation principle in Nevada is to join
the State Insurance Fund.
NEW HAMPSHIRE
The Act applies to specific employments only, which are
enumerated in § 1 as follows:
"§ 1. This act shall apply only to workmen engaged in
manual or mechanical labor in the employments described
TO WHOM ACTS APPLY 177
New Jersey
in this section, which, from the nature, conditions or means
of prosecution of such work, are dangerous to the life and
limb of workmen engaged therein, because in them the risks
of employment and the danger of injury caused by fellow
servants are great and difficult to avoid.
" (a) The operation on steam or electric railroads of loco-
motives, engines, trains or cars, or the construction, altera-
tion, maintenance or repair of steam railroad tracks or road-
beds over which such locomotives, engines, trains or cars are
or are to be operated.
"(b) Work in any shop, mill, factory or other place on,
in connection with or in proximity to any hoisting apparatus,
or any machinery propelled or operated by steam or other
mechanical power in which shop, mill, factory or other place
five or more persons are engaged in manual or mechanical
labor.
"(c) The construction, operation, alteration or repair of
wires or lines of wires, cables, switch boards or apparatus,
charged with electric currents.
"(d) All work necessitating dangerous proximity to gun-
powder, blasting powder, dynamite or any other explosives,
where the same are used as instrumentalities of the industry,
or to any steam boiler owned or operated by the employer,
provided injury is occasioned by the explosion of any such
boiler or explosive.
" (e) Work in or about any quarry, mine or foundry.
"As to each of said employments it is deemed necessary
to establish a new system of compensation for accidents to
workmen."
In order to adopt the compensation principle, however,
the employer must satisfy the Commissioner of Labor of
his financial ability to pay compensation or file a bond as
provided in § 3 of the Act. See Chapter IV.
NEW JERSEY
Prior to the amendment in 1913 the New Jersey Act was
an elective statute applicable to all employers and em-
12
178 bradbury's workmen's compensation law
New York
ployed in the State, exclusive of casual employments. § III,
23. By L. 1913, c. 145, the statute was made compulsory
as to the State and its political subdivisions except as to
officers who are elected and who receive a salary greater
than twelve hundred dollars a year. It remains an elective
statute as to all private employments, except only casual
employments, as»to which see ante, page 136.
The New Jersey Workmen's Compensation Act applies
only where the contract of hiring is made in New Jersey.
Pensabene v. F. & J. Auditore Co., 2 Bradbury's PI. & Pr.
Rep., p. 197; 140 Supp. 266.
The petitioner was employed by the Pennsylvania Rail-
road Company as a brakeman in the Pavonia Yard at Cam-
den, where trains on the railroad came from all sections of
the country and were cut up, reassembled and sent to other
places. The petitioner was injured while engaged with other
employe's of the railroad company in drilling and reassem-
bling a train of cars loaded with soft coal. The car on which
the petitioner was working at the time of the injury was
part of this shipment of soft coal that had just been trans-
ported by the company across the State consigned from the
Excelsior mines in Pennsylvania to the West Jersey and Sea
Shore Railway Company at Westville, in New Jersey. It
was held under the authority of the case of Pederson v.
D. L. & W. R. Co., 197 Fed. R. 537, that the employ^ in
this case was engaged in interstate commerce and that he
must seek his remedy solely under the Federal Employers'
Liability Act. Whitecraft v. Pennsylvania R. R. Co., Cam-
den Common Pleas (May 9, 1913), 36 N. J. Law J. 182.
NEW YORK
The New York Act covers certain enumerated employ-
ments only. There is no way under the New York Statute
in which those engaged in employments other than those
specified can elect to adopt the compensation principle. It
does not cover employes of the State or its political subdi-
TO WHOM ACTS APPLY 179
New York
visions. The only employes specifically excluded are farm
laborers and domestic servants, besides public employes.
The following are the provisions of the statute in relation
to those who come within its terms :
§ 2. Application. Compensation provided for in this
chapter shall be payable for injuries sustained or death
incurred by employes engaged in the following hazardous em-
ployments:
Group 1. The operation, including construction and re-
pair, of railways operated by steam, electric or other motive
power, street railways, and incline railways, but not their
construction when constructed by any person other than the
company which owns or operates the railway, including
work of express, sleeping, parlor and dining car employes on
railway trains.
Group 2. Construction and operation of railways not in-
cluded in group one.
Group 3. The operation, including construction and re-
pair, of car shops, machine shops, steam and power plants,
and other works for the purposes of any such railway, or
used or to be used in connection with it when operated, con-
structed or repaired by the company which owns or operates
the railway.
Group 4. The operation, including construction and re-
pair, of car shops, machine shops, steam and power plants,
not included in group three.
Group 5. The operation, including construction and re-
pair, of telephone lines and wires for the purposes of the
business of a telephone company, or used or to be used in
connection with its business, 'when constructed or operated
by the company.
Group 6. The operation, including construction and repair,
of telegraph lines and wires for the purposes of the business
of a telegraph company, or used or to be used in connection
with its business, when constructed or operated by the com-
pany.
Group 7. Construction of telegraph and telephone lines
not included in groups five and six.
180 bradbury's workmen's compensation law
New York
Group 8. The operation, within or without the State, in-
cluding repair, of vessels other than vessels of other States or
countries used in interstate or foreign commerce, when oper-
ated or repaired by the company.
Group 9. Shipbuilding, including construction and repair
in a shipyard or elsewhere, not included in group eight.
Group 10. Longshore work, including the loading or un-
loading of cargoes or parts of cargoes of grain, coal, ore,
freight, general merchandise, lumber or other products or
materials, or moving or handling the same on any dock,
platform or place, or in any warehouse or other place of
storage.
Group 11. Dredging, subaqueous or caisson construction,
and pile driving.
Group 12. Construction, installation or operation of electric
light and electric power lines, or appliances, dynamos, and
power transmission lines.
Group 13. Paving; sewer and subway construction, work
under compressed air, excavation, tunneling and shaft sink-
ing, well digging, laying and repair of underground pipes,
cables and wires, not included in other groups.
Group 14. Lumbering; logging, riverdriving, rafting, boom-
ing, saw mills, shingle mills, lath mills; manufacture of veneer
and of excelsior; manufacture of staves, spokes, or headings.
Group 15. Pulp and paper mills.
Group 16. Manufacture of furniture, interior woodwork,
organs, pianos, piano actions, canoes, small boats, coffins,
wicker and rattan ware; upholstering; manufacture of mat-
tresses or bed springs.
Group 17. Planing mills, sash and door factories, manu-
facture of wooden and corrugated paper boxes, cheese boxes,
mouldings, window and door screens, window shades, car-
pet sweepers, wooden toys, articles and wares or baskets.
Group 18. Mining; reduction of ores and smelting; prep-
aration of metals or minerals.
Group 19. Quarries; sand, shale, clay or gravel pits, lime
kilns; manufacture of brick, tile, terra-cotta, fireproofing, or
paving blocks, manufacture of calcium carbide, cement, as-
phalt or paving material.
TO WHOM ACTS APPLY 181
New York
Group 20. Manufacture of glass, glass products, glass-
ware, porcelain or pottery.
Group 21. Iron, steel or metal foundries; rolling mills;
manufacture of castings, forgings, heavy engines, locomo-
tives, machinery, safes, anchors, cables, rails, shafting, wires,
tubing, pipes, sheet metal, boilers, furnaces, stoves, struc-
tural steel, iron or metal.
Group 22. Operation and repair of stationary engines and
boilers, not included in other groups.
Group 23. Manufacture of small castings or forgings, metal
wares, instruments, utensils and articles, hardware, nails,
wire goods, screens, bolts, metal beds, sanitary, water, gas
or electric fixtures, light machines, typewriters, cash registers,
adding machines, carriage mountings, bicycles, metal toys,
tools, cutlery, instruments, photographic cameras and
supplies, sheet metal products, buttons.
Group 24. Manufacture of agricultural implements, thresh-
ing machines, traction engines, wagons, carriages, sleighs,
vehicles, automobiles motor trucks, toy wagons, sleighs or
baby carriages.
Group 25. Manufacture of explosives and dangerous chem-
icals, corrosive acids or salts, ammonia, gasoline, petroleum,
petroleum products, celluloid, gas, charcoal, artificial ice, gun
powder or ammunition.
Group 26. Manufacture of paint, color, varnish, oil, ja-
pans, turpentine, printing ink, printers' rollers, tar, tarred,
pitched or asphalted paper.
Group 27. Distilleries, breweries; manufacture of spirituous
or malt liquors, alcohol, wine, mineral water or soda waters.
Group 28. Manufacture of drugs and chemicals, not speci-
fied in group 25, medicines, dyes, extracts, pharmaceutical or
toilet preparations, soaps, candles, perfumes, non-corrosive
acids or chemical preparations, fertilizers, including garbage
disposal plants; shoe-blacking or polish.
Group 29. Milling; manufacture of cereals or cattle foods,
warehousing; storage; operation of grain elevators.
Group 30. Packing houses, abattoirs, manufacture or
preparation of meats or meat products or glue.
Group 31. Tanneries.
182 bradbury's workmen's compensation law
New York
Group 32. Manufacture of leather goods and products,
belting, saddlery, harness, trunks, valises, boots, shoes,
gloves, umbrellas, rubber goods, rubber shoes, tubing, tires
or hose.
Group 33. Canning or preparation of fruit, vegetables, fish
or food stuffs; pickle factories and sugar refineries.
Group 34. Bakeries, including manufacture of crackers
and biscuits; manufacture of confectionery, spices or con-
diments.
Group 35. Manufacture of tobacco, cigars, cigarettes or
tobacco products.
Group 36. Manufacture of cordage, ropes, fibre, brooms
or brushes; manilla or hemp products.
Group 37. Flax mills; manufacture of textiles or fabrics,
spinning, weaving and knitting manufactories; manufacture
of yarn, thread, hosiery, cloth, blankets, carpets, canvas, bags,
shoddy or felt.
Group 38. Manufacture of men's or women's clothing,
white wear, shirts, collars, corsets, hats, caps, furs or robes.
Group 39. Power laundries; dyeing, cleaning or bleaching.
Group 40. Printing, photo-engraving, stereotyping, elec-
trotyping, lithographing, embossing; manufacture of sta-
tionery, paper, cardboard boxes, bags, or wall-paper; and book
binding.
Group 41. The operation, otherwise than on tracks, on
streets, highways, or elsewhere of cars, trucks, wagons or other
vehicles — and rollers and engines, propelled by steam, gas,
gasoline, electric, mechanical or other power or drawn by
horses or mules.
Group 42. Stone cutting or dressing; marble works; manu-
facture of artificial stone; steel buildings and bridge construc-
tion; installation of elevators, fire escapes, boilers, engines
or heavy machinery; bricklaying, tile-laying, mason work,
stone-setting, concrete work, plastering; and manufacture of
concrete blocks; structural carpentry; painting, decorating
or renovating; sheet metal work; roofing; construction, re-
pair and demolition of buildings and bridges; plumbing, sani-
tary or heating engineering, installation and covering of pipes
or boilers. ,
TO WHOM ACTS APPLY 183
New York
§3, subd. 3. "'Employer', except when otherwise ex-
pressly stated, means ja person, partnership, association,
corporation, and the legal representatives of a deceased em-
ployer, or the receiver or trustee of a person, partnership,
association or corporation, employing workmen in hazardous
employments; including the state and a municipal corpora-
tion or other political subdivision thereof."
§ 3, subd. 4. "'Employ^' means a person who is engaged
in a hazardous employment in the service of an employer
carrying on or conducting the same upon the premises or at
the plant, or in the course of his employment away from the
plant of his employer; and shall not include farm laborers
or domestic servants."
§3, subd. 5. "'Employment' includes employment only
in a trade, business or occupation carried on by the em-
ployer for pecuniary gain."
The foregoing brief subdivision (5) of § 3, doubtless will
raise a large number of interesting questions, a good many
of which cannot be anticipated. Apparently it will elimi-
nate all work on a private residence, so far as the owner is
concerned at any rate. Thus if the owner decides to build
his residence by day labor and purchase the material him-
self, it does not matter how large a house it may be, or
whether of steel, stone or other construction, his employes
are not under the Compensation Act, nor can be bring them
thereunder, because there is no way in which employers not
specifically included in the statute can adopt the compensa-
tion principle. Should the owner decide to build his resi-
dence by contract the owner still remains immune from any
claim for compensation. Not only does the section under
discussion especially exempt him, but there is nothing in
the Act making principals liable for compensation to the
employes of contractors or subcontractors. This subject
is entirely ignored in the New York statute although it is
covered in nearly every other compensation law, including
the British statute.
The same subdivision naturally excludes all work done
184 bradbury's workmen's compensation law
Ohio
in connection with religious and charitable institutions by
direct employment of the workmen by such institutions.
Apparently this subdivision is far reaching, but its ulti-
mate e.ff ect must be determined from actual experience and
judicial interpretation.
♦ OHIO
The State and its political subdivisions are brought, by
compulsion, within the Act (§ 1465-60, subd. 1), except
as to "officials," (§ 1465-61, subd. 1), and policemen and
firemen who have the benefit of a pension fund. Ibid.
Every employer who has " in his service five or more work-
men or, operatives regularly in the same business, or in or
about the same establishment under any contract of hire,
express or implied, oral or written," also is brought within
the Act, § 1465-60, subd. 2; except that it does not include
"any person whose employment is but casual, or not in the
usual course of the trade, business, profession or occupation
of the employer." § 1465-61, subd. 2.
By the foregoing it is seen that the Statute excludes from
its operation all casual employes. In this respect it is much
broader in its exclusions than the British Statute and many
of the American Compensation acts, which only exclude such
casual employe's as are not engaged in the usual course of the
trade, business, profession or occupation of their employers.
See ante, page 136.
The second portion of the exclusion clause "or not in
the usual course of the trade, business, profession or occupa-
tion of the employer" would exclude domestic servants no
matter how numerous they might be when employed in a
private family, but not such servants as are usually termed
"domestics," employed in hotels, restaurants and boarding
houses, where five or more are employed regularly. If a
farmer who worked the farm as a business for the purpose
of earning a living should employ more than five workmen
regularly he would come under the Compensation Act, but
TO WHOM ACTS APPLY 185
Oregon
not if he should run a farm as an avocation merely. For such
employe's would not be employed in the "usual course of the
trade, business, profession or occupation of the employer."
See in this connection § 13 (2) of the Supplemental Act ap-
proved March 18, 1913.
OREGON
The Oregon Act is an elective State insurance plan.
Employers and employes engaged in the hazardous occupa-
tions specified in the Statute are presumed to have adopted
the compensation principle, unless they indicate to the con-
trary by taking the steps specified in Chapter IV. Those
engaged in other than the hazardous employments may, by
affirmative action, adopt the compensation principle. The
only way in which employers can do this, however, is by
contributing to the State insurance fund. Until employers
have made such contributions they are subject to actions
for damages or claims for compensation at the option of their
employes. See Chapter IV. The last paragraph of § 14
deserves special mention. It is taken from the Washington
Act. It provides that: "Any member or officer of any cor-
porate employer who shall be carried upon the payrolls at a
salary or wages not less than the average salary or wage of
such payroll, but not otherwise, shall be deemed to be a
workman."
In large establishments it will be rather a difficult matter to
determine just what is the "average salary or wage" of the
payroll. The statute does not specify whether or not in
computing the average salary or wage the sums paid to
officers and members shall be included. But it would seem
that this should be done. Such officers are usually on
monthly salaries while other workmen are employed by the
day and in the course of a month or a year there will be
many payments for odd days and portions of a week or
month. Probably in determining the average wage it will be
necessary to consider that those on monthly salaries were em-
186 bradbury's workmen's compensation law
Oregon
ployed each working day in the month. To the total num-
ber of days thus found must be added the actual number of
days' work performed by day workers, and then the total
payroll must be divided by the number of days thus secured.
The quotient will be the average daily wage. The same
process must be employed to determine the payroll for the
purposes of arriving at the premium to be paid to the State
fund, because, naturally, no premium is due on the salaries
paid to officers and members of corporations unless they are
entitled to compensation should they be injured. That is
unless their salaries are as high as the average they do not
come within the Compensation Act at all, and, therefore,
no premium would be due to the State fund. It would ap-
pear that corporate employers engaged in hazardous occu-
pations could not elect to bring such officers and members
within the compensation principle should their salaries be
less than the average of the entire payroll. There do not
appear to be any restrictions against bringing such officers
under the Act by affirmative election under § 31 in other
than hazardous employments.
There are no special provisions in the Oregon Act in re-
lation to domestic servants, farm laborers, outworkers or
casual employe's. Municipal Corporations are excluded from
the operation of the Act.
The Oregon statute provides as follows:
"§ 10. All persons, firms and corporations engaged as em-
ployers in any of the hazardous occupations hereafter speci-
fied shall be subject to the provisions of this act; provided,how-
ever, that any such person, firm or corporation may be relieved
of certain of the obligations hereby imposed, and shall lose
the benefits hereby conferred by filing with the Commission
written notice of an election not to be subject thereto in the
manner hereinafter specified; provided, however, that where
an employer is engaged in a hazardous occupation, as here-
inafter defined, and is also engaged in another occupation or
other occupations not so defined as hazardous, he shall not
TO WHOM ACTS APPLY 187
Oregon .
be subject to this act as to such non-hazardous occupations,
nor shall his workmen wholly engaged in such non-hazardous
occupations be subject thereto except by an election as autho-
rized by section 31 thereof. Provided, however, that employers
and employes who are engaged in an occupation partly hazard-
ous and partly non-hazardous shall come within the terms of
this act the same as if said occupation were wholly hazardous.
" § 11. All workmen in the employ of persons, firms or
corporations who as employers are subject to this act shall
also be subject thereto; provided, however, that any such
workman may be relieved of the obligations hereby imposed
and shall lose the benefits hereby conferred by giving to his
employer written notice of an election not to be subject thereto
in the manner hereinafter specified. Any workman of the
age of 16 years and upwards shall himself exercise the election
hereby authorized. The right of election hereby authorized
shall be exercised on behalf of any workman under the age
of 16 years by his parent or guardian. This act shall not
apply to workmen of less than the minimum age prescribed
by law for the employment of minors in the occupation in
which such workmen shall be engaged."
"§ 13. The hazardous occupations to which this Act is
applicable are as follows:
"Factories, mills and workshops where machinery is used;
printing, electrotyping, photo-engraving and stereotyping,
plants where machinery is used; foundries, blast furnaces,
mines, wells, gas works, water works, reduction works, brew-
eries, elevators, wharves, docks, dredges, smelter, powder
works, laundries operated by power; quarries, engineering
works; logging, lumbering and ship-building operations; log-
ging, street and interurban railroads not engaged in inter-
state commerce; buildings being constructed, repaired,
moved or demolished; telegraph, telephone, electric light or
power plants, or lines, steam heating or power plants, railroads
not engaged in interstate commerce, steamboats, tugs and
ferries.
"§ 14. In the sense of this Act words employed mean as
here stated, to wit:
"Factories mean undertakings in which the business of
188 Bradbury's workmen's compensation law
Oregon
working at commodities is carried on with power-driven
machinery, either in manufacture, repair or change, and shall
include the premises, yard and plant of the concern.
"Workshop means any plant, yard, premises, room or
place wherein power-driven machinery is employed and man-
ual labor is exercised by way of trade for gain or otherwise in
or incidental to the process of making, altering, repairing,
printing or ornamenting, finishing or adapting for sale or
otherwise any article or part of article, machine or thing,
over which premises, room or place the employer of the per-
son working therein, has the right of access or control.
"Mill means any plant, premises, room or place where
machinery is used, any process of machinery, changing, alter-
ing or repairing any article or commodity for sale or other-
wise, together with the yards and premises which are part of
the plant, including elevators, warehouses and bunkers.
"Mine means any mine where coal, clay, ore, mineral,
gypsum or rock is dug or mined underground.
"Quarry means an open cut from which coal is mined, or
clay, ore, mineral, gypsum, sand, gravel, or rock is cut or
taken for manufacturing, building or construction.
"Engineering work means any work of construction, im-
provement or alteration or repair of buildings, structures,
streets, highways, sewers, street railways, railroads not then
engaged in interstate commerce, logging roads, interurban
railroads not then engaged in interstate commerce, harbors,
docks, canals, electric, steam or water power plants, telegraph
and telephone plants and lines; electric light or power lines,
and includes any other works for the construction, alteration
or repair of which machinery driven by mechanical power is
used.
"The term 'employer' used in this act shall be taken to
mean any person, firm or corporation, but not including
municipal corporations, that shall contract for and secure
the right to direct and control the services of any person, and
the term 'workman' shall be taken to mean any person, male
or female, who shall engage to furnish his or her services sub-
ject to the direction or control of an employer.
TO WHOM ACTS APPLY 189
Rhode Island
"Any member or officer of any corporate employer who
shall be carried upon the payrolls at a salary or wage not less
than the average salary or wage of such payroll, but not
otherwise, shall be deemed to be a workman."
" § 31. Any employer and his workman engaged in works
other than those denned in section 13 hereof may accept the
provisions of this Act and become subject thereto and en-
titled to the benefits thereof by filing with the Commission
their written election to that effect."
RHODE ISLAND
The Act is elective and the electibn on the part of the em-
ployer must be shown by the affirmative steps specified in
Chapter IV. It applies to all employers with the limitations
and exceptions noted below.
"Art. I, § 2. Exceptions. The provisions of this act shall
not apply to actions to recover damages for personal injuries,
or for death resulting from personal injuries, sustained by
employes engaged in domestic service or agriculture.
" § 3. Exceptions. The provisions of this act shall not apply
to employers who employ five or less workmen or operatives
regularly in the same business, but such employers may, by
complying with the provisions of section 5 of this Article be-
come subject to the provisions of this Act."
"Art. V., § 1. In this act, unless the context otherwise
requires:
"(a) 'Employer' includes any person, co-partnership, cor-
poration or voluntary association, and the legal representa-
tive of a deceased employer.
"(b) 'Employe' means any person who has entered into
the employment of, or works under contract of service or
apprenticeship with, an employer, and whose remuneration
does not exceed eighteen hundred dollars a year. It does not
include a person whose employment is of a casual nature,
and who is employed otherwise than for the purpose of the em-
ployer's trade or business. Any reference to an employ^ who
has been injured shall, where the employ6 is dead, include a
190 bradbury's workmen's compensation law
Texas
reference to his dependents as hereinbefore defined, or to his
legal representative, or, where he is a minor, or incompetent,
to his conservator or guardian."
The provision in relation to casual employes follows the
British Act in meaning although not exactly in wording.
It excludes casual employes who are not employed in the
employer's trade or business and includes such as are so
employed. ,
"Art. II, § 22. No waiver of rights. No agreement by an
employe1, except as provided in Article IV, to waive his
rights to compensation under this act shall be valid.
TEXAS
The Texas Act is elective, but employers must insure
compensation payments in order to adopt the compensation
principle. See Chapter IV. In the first instance it is general
in its application to all employers and employes, but there
are a number of important exceptions. These exceptions
are contained in Part I, § 2, and Part IV, § 1, printed below.
In Part I, § 2, is excluded, among others, any employer
"having in his employ not more than five employes." It
is not specified whether this means at the time of the acci-
dent, or on an average throughout the year. Many small
employers take on extra help at certain seasons. If this
section refers to the time of the accident, such employers
will be compelled to adopt the compensation principle
during such portion of the year as they have "more than
five employes," while apparently the Act does not permit
them to adopt that principle at any other time. For there
is no provision that those who are excluded from the Act in
Part I, § 2, and Part. IV, § 1, can adopt the compensation
principle at all. While these two sections would be inconsist-
ent were it not for the qualification in Part IV, § 1, "unless
a different meaning is plainly required by the context," it
TO WHOM ACTS APPLY 191
Texas
was the evident intent of the Legislature to exclude all the
classes specified in both sections. For example Part IV,
§ 1, provides that the word "employe" "shall include every
person in the service of another under any contract of hire,
expressed or implied, oral or written, except one whose
employment is but casual, or is not in the usual course of
the trade, business, profession or occupation of the em-
ployer." The "context" of Part I, § 2, certainly requires
the exclusion of many employes who are not excluded by the
words quoted from Part IV, § 1. Moreover the words
quoted from the latter section exclude many who would
not be excepted by the provisions of Part I, § 2. The words
quoted in connection to casual employes have a double
meaning. Or, rather, two distinct classes of employes are
excluded; that is, first, those of a casual nature; and, second,
those "not in the usual course of the trade, business, pro-
fession or occupation of the employer." Thus when a
person builds a private dwelling house by day labor it does
not matter how many men he may employ, or what the
nature of their work, they would not come within the Act,
as they are especially excluded by the words quoted. The
original 'statute from which this provision is taken coupled
these two provisions together so as to exclude merely such
casual employes as were not engaged in the employer's trade,
business, profession or occupation. The original statute
had the word "and," instead of "or," after the word "cas-
ual," and the comma after "casual" was also omitted, so
that it read as follows: "except one whose employment is
but casual and is not in the usual course of the trade, busi-
ness, profession or occupation of the employer." See a
discussion of this subject ante, page 136.
"Part I, § 2. The provisions of this Act shall not apply
to actions to recover damages for the personal injuries or for
death resulting from personal injuries sustained by domestic
servants, farm laborers, nor to the employes of any person,
firm or corporation operating any railway as a common
192 bradbury's workmen's compensation law
Washington
carrier, nor to laborers engaged in working for a cotton gin,
nor to employes of any person, firm or corporation having in
his or their employ not more than five employes.
"Part I, §4. Employes whose employers are not at the
time of injury subscribers to said association, and the repre-
sentatives and beneficiaries of deceased employes who at the
time of injury were working for non-subscribing employers,
cannot participate in the benefits of said insurance association,
but they shall be entitled to bring suit, and may recover judg-
ment against such employers, or any of them, for all damages
sustained by reason of any personal injury received in the
course of employment, or by reason of death, resulting from
such injury, and the provisions of section one of this Act
shall be applied in all such actions.
"Part I, § 14. No agreement by an employe" to waive
his rights to compensation under this Act shall be valid.
"Part IV, § 1. The following words and phrases, as used
in this Act, shall, unless a different meaning is plainly re-
quired by the context, have the following meaning: 'Employer'
shall Include the legal representatives of any original em-
ployer. "Employe1" shall include every person in the service
of another under any contract of hire, expressed or implied, oral
or written, except one whose employment is but casual, or is
not in the usual course of the trade, business, profession or
occupation of the employer. Any reference to any employe"
who has been injured shall when the employe" is dead, also in-
clude the legal beneficiaries of such employe to whom com-
pensation may be payable."
WASHINGTON
The Washington Act is a compulsory State insurance
plan as to certain specified so-called "extra hazardous"
occupations and an elective statute as to all other employ-
ments. The only way in which an employer can adopt the
compensation principle as to any employe, however, is by
contributing to the State Insurance Fund. The statute as
quoted below, specifies in great detail the employments
brought thereunder by compulsion.
TO WHOM ACTS APPLY 193
Washington
The Attorney General of Washington rendered an opinion
on Sept. 20, J.911, to the effect that the statute did not apply
when the United States was the employer.
"§2. Enumeration of extra hazardous works. There is a
hazard in all employment, but certain employments have
come to be, and to be recognized as being inherently con-
stantly dangerous. This act is intended to apply to all such
inherently hazardous works and occupations, and it is the
purpose to embrace all of them, which are within the legis-
lative jurisdiction of the State, in the following enumeration,
and they are intended to be embraced within the term 'extra
hazardous' wherever used in this act, to wit:
"Factories, mills and workshops where machinery is used;
printing, electrotyping, photo-engraving and stereotyping
plants where machinery is used; foundries, blast furnaces,
mines, wells, gas works, waterworks, reduction works, brew-
eries, elevators, wharves, docks, dredges, smelters, powder
works; laundries operated by power; quarries; engineering
works; logging, lumbering and ship building operations;
logging, street and interurban railroads; buildings being con-
structed, repaired, moved or demolished; telegraph, tele-
phone, electric light or power plants or lines, steam heating
or power plants, steamboats, tugs, ferries and railroads.
If there be or arise any extra hazardous occupation or work
other than those hereinabove enumerated, it shall come
under this act, and its rate of contribution to the accident
fund hereinafter established, shall be, until fixed by legisla-
tion, determined by the department hereinafter created,
upon the basis of the relation which the risk involved bears
to the risks classified in section 4.
" § 3. Definitions. In the sense of this act words employed
mean as here stated, to-wit:
"Factories mean undertakings in which the business of
working at commodities is carried on with power-driven
machinery, either in manufacture, repair or change, and
shall include the premises, yard and plant of the concern.
"Workshop means any plant, yard, premises, room or
place wherein power-driven machinery is employed and
13
194 bradbury's workmen's compensation law
Washington
manual labor is exercised by way of trade for gain or otherwise
in or incidental to the process of making, altering, repairing,
printing or ornamenting, finishing or adapting for sale or
otherwise any article or part of article, machine or thing,
over which premises, room or place the employer of the per-
son working therein has the right of access or control.
"Mill means any plant, premises, room or place where
machinery is used, any process of machinery, changing,
altering or repairing any article or commodity for sale or
otherwise, together with the yards and premises which are
a part of the plant, including elevators, warehouses and
bunkers.
"Mine means any mine where coal, clay, ore, mineral,
gypsum or rock is dug or mined underground.
"Quarry means an open cut from which coal is mined, or
clay, ore, mineral, gypsum, sand, gravel or rock is cut or
taken for manufacturing, buildingor construction.
"Engineering work means any work of construction, im-
provement or alteration or repair of buildings, structures,
streets, highways, sewers, street railways, railroads, logging
roads, interurban railroads, harbors, docks, canals; electric,
steam or water power plants; telegraph and telephone plants
and lines; electric light or power lines, and includes any other
works for the construction, alteration or repair of which
machinery driven by mechanical power is used.
"Except when otherwise expressly stated, employer means
any person, body of persons, corporate or otherwise, and the
legal personal representatives of a deceased employer, all
while engaged in this State in any extra hazardous work.
"Workman means every person in this State, who, after
September 30, 1911, is engaged in the employment of an
employer carrying on or conducting any of the industries
scheduled or classified in section 4, whether by way of manual
labor or otherwise, and whether upon the premises or at the
plant or, he being in the course of his employment, away from
the plant of his employer: Provided, however, That if the injury
to a workman occurring away from the plant of his employer
is due to the negligence or wrong of another not in the same
employ, the injured workman, or if death result from the
TO WHOM ACTS APPLY 195
Washington
injury, his widow, children or dependents, as the case may be,
shall elect whether to take under this act or seek a remedy
against such other, such election to be in advance of any
suit under this section; and if he take under this act, the cause
of action against such other shall be assigned to the State for
the benefit of the accident fund; if the other choice is made,
the accident fund shall contribute only the deficiency, if any,
between the amount of recovery against such third person
actually collected, and the compensation provided or esti-
mated by this act for such case. Any such cause of action
assigned to the State may be prosecuted, or compromised by
the department, in its discretion. Any compromise by the
workman of any such suit, which would leave a deficiency to
be made good out of the accident fund, may be made only
with the written approval of the department.
"Any individual employer or any member or officer of any
corporate employer who shall be carried upon the pay roll
at a salary or wage not less than the average salary or wage
named in such pay roll and who shall be injured, shall be en-
titled to the benefit of this act as and under the same cir-
cumstances as and subject to the same obligations as a work-
man.1
"§ 6. * * * A minor working at an age legally permitted
under the laws of this State shall be deemed sui juris for the
purpose of this act, and no other person shall have any cause
of action or right to compensation for an injury to such minor
workman except as expressly provided in this act, but in the
event of a lump sum payment becoming due under this act
to such minor workman, the management of the sum shall
be within the probate jurisdiction of the courts the same as
other property of minors.
"§17. Public and contract work. Whenever the State,
county or any municipal corporation shall engage in any
extra hazardous work in which workmen are employed for
wages, this act shall be applicable thereto. The employer's
1 The Washington Industrial Insurance Commission rules that partners
and stockholders of corporations may come under the Act and be en-
titled to compensation by complying with the above section.
196 bradbury's workmen's compensation law
Washington
payments into the accident fund shall be made from the
treasury of the State, county or municipality. If said work
is being done by contract, the pay roll of the contractor and
the sub-contractor shall be the basis of computation, and in
the case of contract work consuming less than one year in
performance the required payment into the accident fund
shall be based^upon the total pay roll. The contractor and any
sub-contractor shall be subject to the provisions of the act,
and the State for its general fund, the county or municipal
corporation shall be entitled to collect from the contractor
the full amount payable to the accident fund, and the con-
tractor, in turn shall be entitled to collect from the sub-
contractor his proportionate amount of the payment. The
provisions of this section shall apply to all extra hazardous
work done by contract, except that in private work the con-
tractor shall be responsible, primarily and directly, to the
accident fund for the proper percentage of the total pay roll
of the work and the owner of the property affected by the con-
tract shall be surety for such payments. Whenever and so
long as, by state law, city charter or municipal ordinance,
provision is made for municipal employes injured in the
course of employment, such employes shall not be entitled
to the benefits of this act and shall not be included in the pay
roll of the municipality under this act.
"§18. Interstate commerce. The provisions of this act
shall apply to employers and workmen engaged in intrastate
and also in interstate or foreign commerce, for whom a rule
of liability or method of compensation has been or may be
established by the Congress of the United States, only to the
extent that their mutual connection with intrastate work
may and shall be clearly separable and distinguishable from
interstate or foreign commerce, except that any such employer
and any of his workmen working only in this State may, with
the approval of the department, and so far as not forbidden
by any act of Congress, voluntarily accept the provisions of
this act by filing written acceptances with the department.
Such acceptances, when filed with and approved by the de-
partment, shall subject the acceptors irrevocably to the pro-
visions of this act to all intents and purposes as if they had
TO WHOM ACTS APPLY 197
West Virginia
been originally included in its terms. Payment of premium
shall be on the basis of the pay roll of the workmen who accept
as aforesaid.
"§ 19. Elective adoption of act. Any employer and his
employed engaged in works not extra hazardous may, by
their joint election, filed with the department, accept the
provisions of this act, and such acceptances, when approved
by the department, shall subject them irrevocably to the pro-
visions of this act to all intents and purposes as if they had
been originally included in its terms. Ninety per cent of the
minimum rate specified in section 4 shall be applicable to
such case until otherwise provided by law."
•
WEST VIRGINIA
The West Virginia Act excludes all casual employes
whether or not they are engaged in the employer's business.
§ 9. It also excludes "employers and employes in domestic
or agricultural service," employes employed wholly without
the State and certain members of firms and officers of cor-
porations. § 9. Otherwise it includes all employers and
employes in the State. The only manner in which employers
can adopt the compensation principle, however, is by con-
tributing to the State insurance fund. It is elective to this
extent. Employes, however, have no election whatever when
their employers have taken all the necessary steps to adopt
the compensation principle.
"§9. All persons, firms and corporations regularly em-
ploying other persons for profit, or for the purpose of carry-
ing on any form of industry in the state of West Virginia,
are employers within the meaning of this act, and are subject
to its provisions. All persons in the service of employers,
as herein defined, and employed by them for the purpose of
carrying on the industries in which they are engaged (persons
casually employed excepted) are employes within the mean-
ing of this act, and subject to the provisions thereof; provided,
that this act shall not apply to employers of employes in
198 bradbtjry's workmen's compensation law
West Virginia
domestic or agricultural service, to employes of any employer
who are employed wholly without the state, nor shall a
member of a firm of employers, or any officer of a corporation
employer, including managers, superintendents and assistant
managers and assistant superintendents be deemed an employe"
within the meaning of this act."
"§18. For the purpose of this act the following classifica-
tion of the industries subject thereto is adopted:
"(1) Coal mines, including their tipples, power, light,
heating and ventilating plants, tramways, private tracks
and sidings, and accessory and auxiliary plants working in or
with by-products.
"(2) Paint manufactories^ oil refineries, oil and gas wells,
including their pipe lines, storage, power or light plants,
tramways, private tracks and sidings, and accessory and
auxiliary plants working in or with by-products.
" (3) Iron and steel mills, including blast furnaces, smelters,
tube works, rolling mills, and their accessory and auxiliary
plants, working in or with by-products, and plants generating
power, light or heat and tramways, private tracks and sidings.
"(4) Sheet and tin plate mills, including their accessory
and auxiliary plants working in or with by-products, and
plants generating power, light or heat, and tramways, pri-
vate tracks or sidings.
"(5) Foundries, machine shops, fire-arms factories, tool
factories, car building and repairing, structural iron works,
and working in or with iron or steel, not otherwise specified,
where power driven machinery is used, together with their
accessory and auxiliary plants working in or with by-products,
and plants generating power, light or heat, and tramways,
private tracks and sidings.
"(6) Stamped metal works, can factories, enamel iron
works, and working in or with sheet iron or tin plate, not
otherwise specified, where power driven machinery is used,
together with their accessory and auxiliary plants working
in or with by-products, and plants generating power, light or
heat, and tramways, private tracks and sidings.
"(7) Logging, logging railroads and tramways, saw-mills,
including their accessory and auxiliary plants working in or
TO WHOM ACTS APPLY 199
West Virginia
with by-products, and plants generating power, light or heat,
and tramways, private tracks and sidings.
"(8) Planing mills, wood pulp, cordage and paper mills,
box factories, cooperage plants, furniture factories, wooden-
ware or wood fibre ware manufactories, vehicle works of
every kind, including their accessory and auxiliary plants
working in or with by-products, and plants generating power,
light or heat, and tramways, private tracks and sidings.
" (9) Glass houses of all kinds, including manufactories of
tableware, bar goods, bottles, tumblers, lamps, glass light
fixture parts, lamps, window and plate glass, potteries of all
kinds, including tile, brick, terra cotta, fire clay, earthenware,
porcelain, china and crockeryware using automatic machinery,
together with accessory and auxiliary plants working in or
with by-products, and plants generating light or heat, and
tramways, private tracks and sidings.
"(9-a) Glass houses of all kinds, including manufactories
of tableware, bar goods, bottles, tumblers, lamps, glass light
fixture parts, lamps, window and plate glass, potteries of all
kinds, including tile, brick, terra cotta, fire clay, earthen-
ware, porcelain, china and crockeryware not using automatic
machinery, together with accessory and auxiliary plants
working in or with by-products, and plants generating power,
light or heat, and tramways, private tracks and sidings.
"(10) Printing plants of all kinds, electrotyping, photo
engraving, engraving, lithographing, embossing, book bind-
ing, and accessory and auxiliary lines of work and manufac-
ture.
"(11) Woolen mills, knitting mills, cotton mills, carpet
and rug mills, clothing manufactories of every kind and
working in or with textiles not otherwise specified.
" (12) Breweries, bottling works, canneries of fruits, vege-
tables, oils, fish, milk or meat, manufactories of preserves,
jellies, ketchup, sauces, relishes, pickles, flour and feed mills,
bakeries, confectioneries, drug and extract manufactories,
tobacco, cigar and stogie and cigarette manufactories, in
which power driven machinery is used.
" (13) Slaughter and packing houses, stock yards, soap, tal-
low, lard and grease manufactories, tanneries, artificial ice,
200 bradbury's workmen's compensation law
West Virginia
and refrigerating and cold storage plants, creameries, and
carbon black factories, in which power driven machinery is
used.
"(14) Steam laundries, dyeing and cleaning plants, stamp-
ing, embossing and working with leather, shoe and harness
manufactories, mattress and bedding factories, upholstering
factories, manufacturers of rubber goods, and auxiliary and
accessory lines of work and manufacture not otherwise
specified.
"(15) Steam and other railroads and transportation sys-
tems not otherwise specified.
"(16) Street and interurban railways, whether propelled
by electricity or other power.
" (17) Telegraph and telephone plants and systems, electric
light and power plants and systems, steam heat and power
plants and systems, water works systems, gas works and
systems, grain elevators, and all lighting, heating or power
systems not otherwise specified.
"(18) Quarries, stone crushers, gravel pits, mines, other
than coal mines, and working with asphalt, cement, stone or
other building material not otherwise specified, power pro-
pelled ferries, sand diggers and other water craft.
" (19) Such works, occupations and manufactories specified
in the foregoing eighteen classifications as are operated without
power driven machinery.
"(20) Match factories, powder mills, fire-works factories,
and works in which articles of an explosive nature are mixed
or manufactured.
"(21) Construction of tunnels, shafts, bridges, trestles,
steeples, towers, grain elevators, tanks, water towers, wind
mills, subaqueous works, iron or steel frame structures, or
parts of structures, blast furnaces, smoke stacks, cupolas or
chimneys more than fifty feet high, water works and systems,
electric lights and power plants and systems, gas works and
systems, installation of steam boilers, engines and dynamos,
steam railroads, logging railroads, street railways and systems,
boat building with scaffolds, floating docks, engineering works,
structural work on buildings over three stories in height, not
otherwise specified, and drilling of wells.
TO WHOM ACTS APPLY 201
West Virginia
" (22) Construction and installation of sewers, fire escapes,
freight or passenger elevators, advertising signs, ornamental
metal work on or in buildings, metal ceilings, plate or window
glass, electrical wiring, stairways, buildings which require
galvanized iron or tin work, marble, stone or brick work, roof
work, slate work, plumbing work, carpenter work, electric
work, installing automatic sprinklers, electric or fire alarm
systems, heating or ventilating systems, or machinery not
otherwise specified, covering steam pipes and boilers, road and
street making, street or other grading, and structural work not
otherwise specified.
" (23) Such works or occupations not specified in the fore-
going classifications in connection with which employer and
employes shall voluntarily apply to the commission for the
benefit and protection of this act.
And it shall be the duty of the commission to classify and
place in one of the classes aforesaid any industries subject
to this act not hereinbefore specifically mentioned. And the
commission shall have the power on or before the first day of
January of each year to reclassify the industries subject to
this act or to create additional classifications with respect to
their respective degrees of hazard and determine the risk of
the different classes and fix the rates of premium for each
class, according to the risks of the same, sufficiently large to
provide an adequate fund for the compensation provided for
in this act, and to create a surplus sufficiently large to guar-
antee a workmen's compensation fund from year to year.
The classification so determined and the rates of premium
established shall be applicable for such year; provided,
that the rate so fixed shall not exceed the maximum of one
dollar on each one hundred dollars of the gross annual pay
roll of each employer in any class; provided, also, that for the
purpose of this act the pay of any employe employed partly
within and partly without this state shall be deemed to be such
proportion of the total pay for such employe1 as his service
within this state bears to his service outside the same. A
mine worker shall be deemed to be wholly employed in the
state in which the tipple or principal mine entrance of the
mine in or about which he works is situate.
202 bradbury's workmen's compensation law
West Virginia
The state shall pay the salaries of the members and employes
of the commission, and all other expenses of the administration
of the workmen's compensation fund upon order or voucher
approved and signed by the chairman and secretary of the
commission, directed to the auditor of the state, who shall
draw his warrant therefor.
"§23. * * * No employer or employe* shall exempt himself
from the burden or waive the benefits of this act by any con-
tract, agreement, rule or regulation, and any such contract,
agreement, rule or regulation shall be pro tanto void.
"§25. The commission shall disburse the workmen's com-
pensation fund to such employes (within the meaning of this
act) of employers as have paid into said fund the premiums
for the month in which the injury occurs applicable to
the classes to which they belong, as shall have received in-
juries in this state in the course of and resulting from their
employment, or to the dependents, if any, of such employes
in case death lias ensued according to the provisions herein-
after made.
"§45. The commission may make necessary expenditures
to obtain statistical and other information to establish the
classes provided for in section eighteen."
" § 52. The provisions of this act shall apply to employers
and employes engaged in intrastate and also interstate or
foreign commerce for whom a rule of liability or method of
compensation has been or may be established by the congress
of the United States only to the extent that their mutual con-
nection with intrastate work may and shall be clearly separable
and distinguishable from interstate or foreign commerce,
except that any such employer and any of his employes
working only in this state may with the approval of the com-
mission, and so far as not forbidden by any act of congress,
voluntarily accept the provisions of this act by filing written
acceptances with the commission, and such acceptances,
when filed with and approved by the commission, shall sub-
ject the acceptors irrevocably to the provisions of the act to
all intents and purposes as if they had been originally in-
cluded in its terms. Payments of premium shall be on the
basis of the pay roll of the employes who accept as aforesaid.
TO WHOM ACTS APPLY 203
Wisconsin
"§ 53. If any employer shall be adjudicated to be outside
the lawful scope of this act, the act shall not apply to him or
his employe^ or if any employe1 shall be adjudicated to be
outside the lawful scope of this act, because of remoteness
of his work from the hazard of his employer's work, any such
adjudication shall not impair the validity of this act in other
respects, and in every such case an accounting in accordance
with the justice of the case shall be had of moneys received.
If the provisions of this act for the creation of the fund, or the
provisions of this act making the compensation to the employ^
provided in it exclusive of any other remedy on the part of the
employ6 shall be held invalid, the entire act shall be thereby
invalidated and an accounting according to the justice of the
case shall be had of money received. In other respects an ad-
judication of invalidity of any part of this act shall not affect
the validity of the act as a whole or any other part thereof.
WISCONSIN
With the exceptions hereafter noted employers who em-
ploy four or more employes in a common employment are
brought within the Act by a presumptive election and they
must take the steps pointed out in Chapter IV to overcome
this presumption. § 2394r-5, subd. 2. It does not apply to
switching crews in railroad yards nor to common carriers
engaged in interstate commerce. § 2398-8, subd. 3. Switch-
ing crews may be brought in by affirmative election. § 2394-
5, subd. 3.
The Act does not apply to "any person whose employ-
ment is but casual or is not in the. usual course of the trade,
business, profession, or occupation of his employer." § 2394-
7, subd. 2.
It will be observed that the Wisconsin Act excludes all
casual employes. Then as a distinct class it excludes all
those whose employment "is not in the usual course of the
trade, business, profession, or occupation of the employer."
§ 2394-7, subd. 2. This is a much broader exclusion than
is contained in the British Act from which the provision was
204 bradbury's workmen's compensation law
Wisconsin
originally taken. The latter statute provides that the word
"workman" shall not include "a person whose employ-
ment is of a casual nature and who is employed otherwise
than for the purposes of the employer's trade or business."
§ XIII. From this it is seen that only casual employes who
are not employed for the purposes of the employer's trade
or business are excluded from the British Act, while casual
employes who are employed for the purposes of the em-
ployer's trade or business are entitled to compensation. See
discussion of this subject ante, page 138.
It is held that the defense of casual employment is not
available to a municipality, but only to a private employer.
Thomas J. Brown v. City of Mauston, Dec. Wis. Indus. Com.,
Feb. 29, 1912.
The applicant for compensation had been arrested and
convicted for violation of a City ordinance. While serving
his sentence in the House of Correction he was put to work
operating a joiner in the chair shop. He accidently sus-
tained injuries which resulted in the amputation of his right
hand at the wrist. The application for compensation was
denied, the Commission holding that "the applicant was in
involuntary employment; that he was not in the service of
the municipality under a contract of hire, express or implied,
written or oral, and cannot be considered an employe under
the compensation act." Hanlon v. Milwaukee County, Dec.
Wis. Indus. Com., Dec. 9, 1912.
The husband of the applicant was employed as a tender
of a coaling station on a railroad. While in the performance
of his duties he was accidentally run down and killed by a
passenger train. It was urged by the employer that the case
was not covered by the act by reason of § 2394-3 thereof.
The Commission held that this section did not deprive any
railroad company of the privilege of electing to come under
the compensation act as to all of its employes and that it
did not deprive any employe of the benefit of the act. It
was also held that the section mentioned merely fixed the
TO WHOM ACTS APPLY 205
Wisconsin
status of companies and employes not under the act. It
was held that at the time of the accident both parties were
subject to the provisions of the compensation act. An
award was made of four times $504, which was admitted
to be the annual wages of the employed Torvalson v. Min-
neapolis, St. Paul and Sault Ste. Marie R. R. Co., Dec. 2,
1912.
Under the Wisconsin Workmen's Compensation Act a
railway company may elect to adopt the compensation prin-
ciple as to all its employes including trainmen, as the excep-
tion of trainmen from the provisions of the first three sections
of the act does not apply to succeeding sections. Min-
neapolis, St. Paul & S. S. M. Ry. Co. v. Industrial Com-
mission of Wisconsin, 000 Wis. 000; 141 N. W. Rep. 1119.
In a letter dated December 14th, 1912, addressed to the
author, the Industrial Commission of Wisconsin said:
" It is optional with every employer in the State of Wis-
consin regardless of the number or class of employes, whether
he shall elect to come under the Compensation Act or not.
The Act covers farm laborers, domestic servants and, in fact,
all employes after the employer files his notice in writing
with this Commission electing to operate under the provi-
sions of the law."
In a letter dated December 23rd, 1912, addressed to the
author, in relation to domestic servants, the Wisconsin
Industrial Commission said:
"The Commission has ruled that domestic servants are not
to be considered employes under the Compensation Act un-
less the trade, business, profession or occupation of the em-
ployer is that of a housekeeper. If a housekeeper should
elect to operate under the Compensation Act, then such serv-
ants as he or she should employ would be covered by the
law. Ordinarily, domestics cannot be considered employes
under the provisions of subdivision 2 of Section 2394-7 be-
cause they are not engaged in the usual course of the trade,
business, profession or occupation of the employer."
206 bbadbury's workmen's compensation law
Wisconsin
Employes of the State, and all political subdivisions thereof
are brought under the law by compulsion, except "any
official of the State, or of any county, city, town, village,
or school district therein." § 2394-7.
The Attorney General has held that a deputy game
warden is an official within the meaning of the foregoing
section. The Wisconsin Industrial Commission has ruled
that an "official" "is one who has to do with the making,
administration, execution or interpretation of the laws."
The applicant was a member of Company I, Second
Infantry of the Wisconsin National Guard. While in the
course of his duties during the annual encampment of his
regiment on the State Military reservation, he sustained
injuries which caused a hernia. In response to an inquiry
as to whether the applicant could be considered an employe
of the State, the Attorney General, in an opinion, held that
the applicant was an employe of the State and that he was
entitled to compensation. The Commission decided that
an operation on the applicant would incapacitate him for
six weeks and that compensation based on the minimum
wage, considered in the law, should be paid by the State.
The specific award was that the amount paid should be
$205.37, as the cost of the operation, and hospital expenses
and compensation should be paid at the rate of $5.06 a
week for six weeks. Chester E. Hanson v. State of Wisconsin,
Dec. Wisconsin Industrial Commission, Feb. 4, 1913.
The applicant who was fifteen years of age injured his
left hand on a circular saw in the manual training depart-
ment of a high school. He was a student but was employed
on a holiday by the principal under authorization of the
school board. His wages were 14 cents per hour. The par-
ties to the proceeding agreed to pay $1,000 as compensa-
tion, and the commission directed the payment of this sum
without consideration of the extent of the disability. George
J. Schmitz v. City of Appleton, Dec. Wis. Indus. Com.
Sept. 30, 1912.
CHAPTER IV
MANNER OF ELECTING TO OPERATE UNDER, OR
REJECTING, OR OF BRINGING EMPLOYERS
AND EMPLOYES WITHIN, THE TERMS OF THE
COMPENSATION STATUTES
Page
ARTICLE A— Introduction 207
1. Classification of Statutes 207
2. Acceptance of Compensation Principle as to part only of
Employes 210
ARTICLE B — Specific Provisions of Various Statutes 211
Page
Arizona 211 Nevada 263
California 213 New Hampshire 268
Connecticut 216 New Jersey 269
Illinois 228 New York 272
Iowa 233 Ohio 275
Kansas 238 Oregon 279
Maryland 241 Rhode Island 286
Massachusetts 242 Texas 290
Michigan 245 Washington 293
Minnesota 251 West Virginia 295
Nebraska 255 Wisconsin 297
ARTICLE A— INTRODUCTION
1. Classification of statutes.
All of the statutes of the States of the Union may be classi-
fied as follows:
1. Compulsory acts.
2. Elective acts.
(a) In which election to adopt compensation prin-
ciple is presumed by failure to indicate to the con-
trary.
207
208 bradbury's workmen's compensation law
Classification of statutes
(6) In which the election must be indicated by some
affirmative act.
Thus far only a few of the States have adopted acts which
are compulsory in form. Washington passed such an act
and so far it has been sustained by the Supreme Court of
that State as well as by the branches of the Federal Court
sitting in that Commonwealth, although Washington has
not adopted a constitutional amendment authorizing a
compulsory workmen's compensation act. In the States of
Arizona, California, New York and Ohio compulsory acts
have been passed under constitutional amendments em-
powering the Legislatures of those States to enact such
statutes. Certain employers in the States enumerated,
therefore, are brought under the compensation principle
without any election on their part whatsoever. The limita-
tions on the rights of the employe's, as specified in the com-
pensation acts, are not operative in some States, however,
unless the employers take the affirmative steps which are
required by the various statutes. Thus, in Ohio, West
Virginia, Oregon and Washington employers must make
payments to the State Insurance fund before they are re-
lieved from liability for common-law damages in actions by
their workmen. In Connecticut, Massachusetts, Michigan,
New York and Texas certain methods of assuring compensa-
tion payments must be taken before the employer can limit
his liability to the sums payable under the compensation
acts of those States.
The elective compensation laws doubtless were direct
outgrowths of the decision of the New York Court of Appeals
in the now famous case of Ives v. South Buffalo Ry. Co., 201
N. Y. 271; 1 N. C. C. A. 517. As it was held in that case
that a compulsory workmen's compensation law was uncon-
stitutional, New Jersey hit upon the plan of adopting an
elective act. Other States rapidly followed the lead of New
Jersey in this respect. The first act provided that both
employers and employes should be presumed to have elected
MANNER OF ELECTING TO OPERATE UNDER 209
Classification of statutes
to pay and to accept compensation, unless they took some
affirmative action to indicate to the contrary. If they did
not do what the statute required it was conclusively pre-
sumed that they had adopted the compensation principle,
and their rights and liabilities were governed accordingly.
So far this presumptive election principle has been sustained
by the courts. Some doubt, however, was raised as to the
constitutionality of the "conclusive presumption" feature
of certain of the statutes. Some of the legislatures, to avoid
this question, passed acts which require employers, at least,
to take some affirmative action to indicate their election to
adopt the compensation principle. Two excellent examples
of such statutes are those of Massachusetts and Michigan.
The constitutional question involved is fully discussed in
paragraph 7, of Chapter I, ante, page 11.
In the pages which follow are contained the provisions of
the acts of the various States showing how employers and
employes are brought within the compensation principle in
any particular State. It should be borne in mind, however,
that under all the elective laws the employers have the first
election. Until they have indicated their intention to adopt
or to refuse to adopt the compensation principle their em-
ployes have no election whatsoever. In the event, however,
that the employers do not adopt the compensation principle,
usually, a considerable advantage flows to the employes in
giving them rights which they do not have under any other
circumstances, in relation to actions at common law or
under so-called employers' liability acts as distinguished
from workmen's compensation statutes. The provisions
of the statutes for each State should be carefully examined,
as some requirements are rather technical. Unless the
statute is somewhat closely followed there may be danger
that an employer, who believes he has adopted the com-
pensation principle, will find himself liable for damages to
an unlimited amount in serious cases, with very little chance
of making a successful defense.
14
210 bbadbuey's workmen's compensation law
Acceptance of compensation principle as to part only of employes
2. Acceptance of compensation principle as to part only of
employes.
A question arose early in the administration of the com-
pensation laws as to the right of an employer to accept
the compensation principle as to a portion of his employes
and reject it as to the remainder. The question was asked:
Can the employer discriminate in making this election be-
tween different classes of employes? Can he bring in shop
hands and exclude traveling salesmen, or clerical employes?
Can he include those in a particularly hazardous portion
of his establishment and exclude the others in a less dan-
gerous occupation? It has been urged that the employer
has the right to make this discrimination, for the reason
that the employes have the right of individual election
whether or not they shall be bound by the employer's
election to adopt compensation. The employees right exists
as to the different employes in the same shop. Some may ac-
cept the compensation principle, as adopted by the employer,
while others may reject it, and stand on their common-
law right of action, for injuries suffered in the master's
service. Some of the more recent acts, like that of West
Virginia, for example, have specific provisions on this subject.
The only decision on the point, so far as the author is
aware, is that made by the Industrial Commission of Wis-
consin. To a question by an employer as to the right to file
a qualified election to come under the compensation law the
Commission replied as follows:
"Under the Compensation Act, if you file a general notice
of election, all your employes will be covered as to all acci-
dents happening in the course of their employment in the
State of Wisconsin. The law will not cover accidents hap-
pening outside of the State. Some few employers have filed
modified notices of election; for instance, they have, in one
or two instances, excluded their traveling salesmen in the
notice of election filed. There is some doubt about the
legality of such filing of notice and the Commission does not
MANNER OF ELECTING TO OPERATE UNDER 211
Arizona
advise modified notices of this kind, but if you choose to
file such a notice, the Commission will administer the law,
and leave it to the courts to say whether it is sufficient to
exclude a part of your employe's. The writer suggests that
if you desire to exclude your traveling salesmen from the
operation of the law you can do so by having an understand-
ing with the salesmen to that effect, and that within thirty
days from the time you file your notice of election, your
traveling salesmen may serve upon you a notice to the effect
that they do not desire to come under the Act."
Certain acts, like that of New York for example, cover
specific employments only. If a single employer had em-
ployes engaged in two or more different employments, one
of which came under a class specified in the statute and the
other did not, doubtless he would be required to pay com-
pensation to one class and not to the other. But a different
question arises where the statute is elective as to all classes
of employes. In such a case the author is of the opinion that
the election must be made as to all employes or none.
ARTICLE B— SPECIFIG PROVISIONS OF VARIOUS STATUTES
ARIZONA
Section 67 of Chapter VII of the Law of 1913 specifies
the particular employers and employes who come within its
provisions by compulsion of the statute itself.
Section 79 of the same Act provides that any employer
and employ^ may bring themselves within the terms of the
statute by entering into contract to that effect.
Section 79 reads as follows:
"Any employer employing workmen to perform labor or
services of other kinds than as defined in this Chapter, and
such workmen and employes may, by agreement, at any time
during the employment, accept and adopt the provisions of
this Chapter as to liability for accident, compensation, and
212 bkadbtjry's workmen's compensation law
Arizona
the methods and means of paying and securing and enforcing
the same. And in every such case the provisions of this
Chapter shall be taken in law and fact to bind the parties as
fully as if they were specifically mentioned and embraced in
the provisions of this Chapter."
Several provisions of the statute appear to be conflicting.
For example the second proviso of § 78 (printed below)
appears to give both employers and employes a right to elect
after the accident whether or not they will pay or accept
compensation.
There is no provision in the law requiring notice to be
given to indicate that the employer has adopted the com-
pensation principle.
Art.9if,' flip's § 78. This chapter shall be construed as a con-
modifiod- tinuation of the law contained in Chapter XIV
of the laws of the First Legislature of the State of
Arizona, Second Session. All workmen employed
by an employer at manual and mechanical labor
of the kinds defined in the third section of this
Chapter shall be deemed and held in law to be em-
ployed and working subject to the provisions of
this Chapter, and the employer and the workman
shall alike be bound by and shall have each and
every benefit and right given in this Chapter the
same as if a mutual contract to that effect were
entered into between the employer and the work-
man at any time before the happening of any acci-
dent. It shall be lawful, however, for the employer
and workman to disaffirm an employment under
the provisions of this Chapter by written contract
between them or by written notice by one to and
served upon the other to that effect before the day
of the accident;
Pbovtded, such written contract does not pro-
vide for less compensation than as provided in this
Chapter. And in the absence of such written con-
MANNER OF ELECTING TO OPERATE UNDER 213
California
tract or written notice, served as above provided,
it shall be taken and held that the employment
and service is under this Chapter; and the
same shall be the sole measure of their respective
rights and liabilities when and as provided in this
Chapter;
Provided, if, after the accident, either the em-
ployer or the workman shall refuse to make or
accept compensation under this Chapter or to
proceed under or rely upon the provisions hereof
for relief, then the other may pursue his remedy or
make his defense under other existing statutes,
the state constitution, or the common law, except
as herein provided, as his rights may at the time
exist. Any suit brought by the workman for a
recovery shall be held as an election to pursue such
remedy exclusively.
CALIFORNIA
It is the apparent intention to bring all employers and
employes, except those specifically excluded in § 14, within
the terms of the Act, without either employers or employes
taking any steps whatsoever. §§ 12 and 13. The language
is not entirely clear or satisfactory, but the intent seems to
be certain.
As to employers and employes excepted by the provisions
of § 14, they may elect to adopt the compensation principle.
§ 87. Subdivision (a) of § 87 provides that this election may
be by the "joint " election of the employers and the employe's.
Nevertheless, the subsequent paragraphs of the same sec-
tion provide that the employer may elect, by filing a written
statement to the effect that he accepts the provisions of
the Compensation Act, with the Industrial Accident Com-
mission. It further provides that employes are deemed to
have accepted the provisions of the Act as to all such em-
ployers as have affirmatively elected to adopt the compen-
sation principle, until such employes have signified their
214 bradbury's workmen's compensation law
California
intention to the contrary. While, therefore, subd. (a)
speaks of the "joint" election of the employers and employes,
and standing alone this subdivision would require employ-
ers and employe's to join in taking affirmative action, never-
theless, it is so modified by the subsequent paragraphs as to
make the election presumptive on the part of the employ^
after the employer takes the affirmative steps necessary.
The State Insurance Fund created under the California
statute is unique so far as Workmen's Compensation Acts
are concerned in the United States. It is really a State
Insurance Company, which issues policies the same as a
stock company. Employers may take policies in stock
companies or from the Industrial Accident Commission,
which administers the State Insurance Fund through one
of its departments. No notice to employes in relation to
such insurance, of either kind, is required to be given as a
prerequisite to bringing the employers under the com-
pensation principle, nor are employers required to insure in
order to adopt the compensation principle.
FORM
Notice of Election by Employer to Adopt the Compensation
Principle as to Employes Excepted by § 14 of the Act
(§87)
To the Industrial Accident Commission op California,
Underwood Building,
525 Market Street,
San Francisco, California.
Please take notice that the undersigned hereby elects to accept
the compensation provisions of Chapter 176 of the Laws of 1913,
and all amendments thereof as to all employes who now or may
hereafter be in the employment of the undersigned (including
employes whose employment is both casual and not in the usual
MANNER OF ELECTING TO OPERATE UNDER 215
California
course of the trade, business, profession or occupation of the
undersigned).1
Dated, at the day of 19. . .
Employer
Post-office address
FORM
Notice by Employe, Excepted by § 14 from the Operation of the
Act, that He Rejects the Compensation Principle 2
(§87)
To ,
Employer
Please take notice that the undersigned hereby elects not to be
subject to the compensation provisions of Chapter 176 of the
Laws of 1913 and amendments thereof.
Dated at the day of 19. . .
Employe
Under the California Act, which was in operation prior
to January 1, 1914, it was provided that if the employer
filed notice of election to adopt the compensation principle,
that the employe1 was presumed to have elected to accept
compensation unless within thirty days after the employer
elected the employe filed notice of rejection. There was no
specific provision in the statute permitting the employe1 to
file an affirmative notice of election in less than thirty days.
The City Electric Light Company of San Francisco served no-
1 A notice under § 87 will not bring in the employes specified in the
words in parenthesis unless they are specifically mentioned. There is
nothing in the act itself requiring notice of this election to be given to
workmen. Doubtless this is a matter to be regulated by the Commission.
The notice itself must be filed with the Industrial Accident Commission.
2 This notice is to be served on the employer. § 87 (c) (2). There is
nothing in the act requiring this notice to be filed with the Commission.
216 bradbury's workmen's compensation law
Connecticut
tice of acceptance of the compensation law on November 14,
1911. Three days later Robert J. McAvin, an employe of
the Electric Light Company, was found dead from electro-
cution. The company contested payment of compensation
on the ground that at the time of death the decedent was
not an employe1, subject to the compensation provisions of
the Act. The Industrial Accident Board of California sus-
tained the contention of the company and refused compen-
sation and in its opinion stated:
"The filing of the acceptance by the employer is the offer
on his part to enter into a contract with his employes for the
compensation therein provided and for the adjustment of any
dispute that may arise thereunder. The only way provided
by the act whereby an old employe can accept this offer and
come under the provisions of the Act is to remain in the em-
ploy of his employer for thirty days after his employer's
election has been filed during which thirty days he will be
and remain under the Negligence Law and must bring suit
in a court of law to recover damages." McAvin v. City Electric
Light Co., Opinion by Industrial Accident Board of California.
This construction of the statute was sustained by the Su-
perior Court, in San Francisco by a decision rendered Au-
gust 29, 1912. A somewhat different conclusion was reached
by the Michigan Industrial Accident Board in a decision
rendered in October, 1912. See post, page 247.
CONNECTICUT
The Connecticut Act brings all employers and all em-
ployes within its terms, by a presumptive election.
The Attorney General of Connecticut has ruled that the
Workmen's Compensation Act applies to all employes in-
cluding casual employes, farm laborers and domestic serv-
ants and to all employers, no matter how many or how few
employes he may have. Section 2 of Part A provides that
MANNER OF ELECTING TO OPERATE UNDER 217
Connecticut
the provision of Paxt A, abolishing certain common-law
defenses, do not apply to the excepted classes of employers
and employes specified in § 2 of Part A. The remainder of
the Act, however, applies to all employes. Therefore, if
those who employ casual employed, outworkers, or less than
five workmen desire to reject the compensation statute it
will be necessary for them to give notice to such employes
in accordance with the form on page 219, or so stipulate in
the contract of employment. Probably the Legislature
never intended that it would be necessary for persons
traveling about the country to carry notices in their pockets
so they could serve them on bootblacks, porters and others
who are temporarily engaged for brief service to prevent
them from being held liable should such a person slip and
break his leg during the course of the brief employment. In
any event, such a notice would be unavailable because it
would not take effect until thirty days after it was served.
But under the Attorney General's opinion the only way in
which any employer of any employe can escape liability for
compensation is by giving such a notice, or by making a
rejection of the Act a part of the contract of employment,
under § 2 of part B.
Sections 2 and 3, of Part B, provide as follows:
"Part B, § 2. Acceptance Presumed. Every contract of
employment not made before the date of this act shall be con-
clusively presumed to include a mutual agreement between
employer and employe" to accept part B of this act and be
bound thereby, unless either employer or employe" shall by
written stipulation in the contract, or by such other notice as
is prescribed in section three of part B, indicate his refusal to
accept the provisions of said part B. Every contract of em-
ployment made before the date of this act and continued in
force after said date shall be conclusively presumed to include
a mutual agreement between employer and employe" to accept
"part B of this act and be bound thereby, unless by the date
at which this act goes into effect either employer or employe"
218 bradbuky's workmen's compensation law
Connecticut
had indicated his refusal to accept said part B in the manner
prescribed in section three of said part B.
"§ 3. Manner of Acceptance and Withdrawal. Acceptance
of part B of this act may be withdrawn by written or printed
notice from either employer or employe" to the other party and
to the compensation commissioner of the district, in which the
employe" is employed. Notice of withdrawal may be served
by personal presentation or by registered letter addressed to
the person on whom it is to be served at his last known resi-
dence or place of business; and such notice shall become ef-
fective thirty days after service. Either employer or employe"
who has withdrawn acceptance may renew the same by the
same notice and procedure as is prescribed for withdrawals.
Notices in behalf of a minor shall be given by his parent or
guardian, or, if there be no parent or guardian, then by such
minor."
While all employers are thus conclusively presumed to
have adopted the compensation principle, by inaction, never-
theless they cannot limit payments to their employes to
the sums specified in the Act unless they go a step further.
The employer must "furnish the commissioner J satisfactory
proof of his solvency and financial ability to pay directly
to injured employes or other beneficiaries the compensation
provided by this Act," or he must file security acceptable to
the Insurance Commissioner guaranteeing the performance
of his obligations under the Act, or he must insure his full
liability for compensation in a stock or mutual insurance
company authorized to take such risks in the State of Con-
necticut, subject to the approval of the Insurance Com-
missioner. Part B, § 30.
Unless there is a compliance with § 30 employers may be
sued for unlimited damages and in such actions they will
not be permitted to interpose any of the common-law
defenses. Part B, §42.
The Compensation Commissioners have issued a series of
1 The Compensation Commissioner. See § 43 of Part B.
MANNER OP ELECTING TO OPERATE UNDER 219
Connecticut
forms numbered from 1 to 8, inclusive, for use by employers
and employes. These forms are appended with the numbers
given to them by the Commissioner.
FORM NO. 1
WORKMEN'S COMPENSATION COMMISSION OP
CONNECTICUT
This form prepared by the Commissioners is proper for ordinary
use and is recommended, but any other form or mode of statement,
substantially appropriate to the object in view, will also be deemed
sufficient.
Ink or typewriter to be used in filling out all forms.
FORM FOR REFUSAL TO ACCEPT PART B BY EMPLOYER
To the Compensation Commissioner for the
Congressional District of Connecticut at :
The undersigned, an employer, being a corporation
Erase organized under the laws of the State of
words a partnership consisting of
not used
an individual
having regularly .employes, and engaged in the
business of
at hereby refuses
(give town, street and street number)
to accept the provisions of Part B of "An Act Concerning Compen-
sation to Workmen Injured in the Course of Their Employment"
(Chap. 138, Pub. Acts, 1913).
Dated at this day of 191. .
Witnessed by
(two witnesses should sign)
Note — If the above form is signed on behalf of a corporation or
220 bradbury's workmen's compensation law
Connecticut
partnership, the name of the signer should appear, together with a
statement of his authority as President, Agent, etc. This notice
should be served upon the Commissioner by personal presentation
or registered mail.
FORM NO. 2
WORKMEN'S COMPENSATION COMMISSION OP
CONNECTICUT
This form prepared by the Commissioners is proper for ordinary
use and is recommended, but any other form or mode of statement,
substantially appropriate to the object in view, will also be deemed
sufficient.
Ink or typewriter to be used in filling out all forms.
FORM FOB REFUSAL TO ACCEPT PART B BY EMPLOY^
To the Compensation Commissioner for the
Congressional District of Connecticut at :
The undersigned, aged years, an employe of
(state accurately
at
name of employer) (give town, street and street number)
and engaged in the occupation of hereby
(state employe's trade or occupation)
refuses to accept the provisions of Part B of "An Act Concerning
Compensation to Workmen Injured in the Course of Their Em-
ployment" (Chap. 138, Pub. Acts, 1913).
Dated at . this day of 191 . .
To be used when employ6
is an adult, or a minor
without living parent or
guardian.
(signature of employe)
(address)
MANNER OF ELECTING TO OPERATE UNDER
221
Connecticut
To be used only
when employe"
is a minor with
living parent or
guardian.
Witnessed by
My living parents are
and
Address
(name of minor)
(address of minor)
By Parent
By Parent
By Guardian.
(parent or guardian must sign)
(address of signer)
(two witnesses should sign)
Note — This notice should be served upon the Commissioner by
personal presentation or by registered mail.
FORM NO. 3
WORKMEN'S COMPENSATION COMMISSION OF
CONNECTICUT
This form prepared by the Commissioners is proper for ordinary
use and is recommended, but any other form or mode of statement,
substantially appropriate to the object in view, will also be deemed
sufficient.
Ink or typewriter to be used in filling out all forms.
FORM FOR REFUSAL TO ACCEPT PART B. EMPLOYER TO EMPLOYE
To
(name of employ^)
of , Connecticut:
(address)
You are hereby notified that the undersigned refuses to accept the
provisions of Part B of "An Act Concerning Compensation to
222 bbadbuky's workmen's compensation law
Connecticut
Workmen Injured in the Course of Their Employment" (Chap.
138, Pub. Acts, 1913).
Dated at this day of 191 . .
Witnessed by
(two witnesses should sign)
%
Note — This notice should be served upon the employe" by per-
sonal presentation or registered mail. A copy showing date and
manner of service should be preserved.
The use of this form does not do away with the necessity of
giving notice to the Commissioner as per form No. 1.
FORM NO. 4
WORKMEN'S COMPENSATION COMMISSION OF
CONNECTICUT
This form prepared by the Commissioners is proper for ordinary
use and is recommended, but any other form or mode of statement,
substantially appropriate to the object in view, will also be deemed
sufficient.
Ink or typewriter to be used in filling out all forms.
FORM FOB BEFUSAL TO ACCEPT PART B. EMPLOYE TO EMPLOYER
To j of , Connecticut:
(name of employer) (address)
You are hereby notified that the undersigned refuses to accept the
provisions of Part B of "An Act Concerning Compensation of
Workmen injured in the Course of Their Employment" (Chap.
138, Pub. Acts, 1913).
Dated at this day of 191 A .
MANNER OF ELECTING TO OPERATE UNDER
223
Connecticut
To be used when employ6
is an adult, or a minor
without living parent or
guardian.
(signature of employ*)
(address)
To be used only
when employe1
is a minor with
living parent or
guardian.
Witnessed by
My living parents are .
and
Address
(name of minor)
(address of minor)
By Parent
By , Parent
By Guardian.
(address of signer)
(two witnesses should sign)
Note — This notice should be served upon the employer by per-
sonal presentation or registered mail. A copy should be preserved
showing date and manner of service.
The use of this form does not do away with the necessity of
giving notice to the Commissioner as per form No. 2.
FORM NO. 6
WORKMEN'S COMPENSATION COMMISSION OF
CONNECTICUT
This form prepared by the Commissioners is proper for ordinary
use and is recommended, but any other form or mode of statement,
substantially appropriate to the object in view, will also be deemed
sufficient.
Ink or typewriter to be used in filling out all forms.
224 bradbury's workmen's compensation law
Connecticut
FORM FOR WITHDRAWAL OF ACCEPTANCE OF PART B BY EMPLOYER
To the Compensation Commissioner for the
Congressional District of Connecticut at
The undersigned, an employer, being a corporation
Erase organized under the laws of the State of
words a partnership consisting of
not 'used. .^
an individual
having regularly employes, and engaged in the
business of
at hereby withdraws
(give town, street and street number)
acceptance of the provisions of Part B of "An Act Concerning
Compensation to Workmen Injured in the Course of their Employ-
ment" (Chap. 138, Pub. Acts, 1913).
Dated at this day of 191 . . .
Witnessed by
(two witnesses should sign)
Note — If the above form is signed in behalf of a corporation or
partnership, the name of the signer should appear, together with
a statement of his authority as President, Agent, etc.
This notice should be served upon the Commissioner by personal
presentation or registered mail.
FORM NO. 6
WORKMEN'S COMPENSATION COMMISSION OF
CONNECTICUT
This form prepared by the Commissioners is proper for ordinary
use and is recommended, but any other form or mode of statement,
substantially appropriate to the object in view, will also be deemed
sufficient.
Ink or typewriter to be used in filling out all forms.
MANNER OF ELECTING TO OPERATE UNDER
225
Connecticut
FORM FOB WITHDRAWAL OF ACCEPTANCE OF PART B BY EMPLOYE
To the Compensation Commissioner for the
Congressional District of Connecticut at •
The undersigned, aged years, an employe of
(state accurately name of employer)
at
(give town, street and street number)
engaged in the occupation of
(state employe's trade or occupation)
hereby withdraws acceptance of the provisions of Part B of "An
Act Concerning Compensation to Workmen Injured in the Course
of Their Employment" (Chap. 138, Pub. Acts, 1913).
Dated at this day of 191. . .
To be used when em-
ploye is an adult or a
minor without living par-
ent or guardian.
My living parents are .
and
Address
(signature of employe)
(address)
To be used only
when employe
is a minor with
living parent or
guardian.
Witnessed by
(name of minor)
(address of minor)
By Parent
By Parent
By Guardian.
(parent or guardian must sign)
(address of signer)
(two witnesses should sign)
Note — This notice should be served upon the Commissioner by
personal presentation or by registered mail.
15
226 bradbury's workmen's compensation law
Connecticut
FORM NO. 7
WORKMEN'S COMPENSATION COMMISSION OF
CONNECTICUT
This form prepared by the Commissioners is proper for ordinary
use and is recommended, but any other form or mode of statement,
substantially appropriate to the object in view, will also be deemed
sufficient.
Ink or typewriter to be used in filling out all forms.
FORM FOR WITHDRAWAL OF ACCEPTANCE OF PART B BY AN EMPLOYER
EMPLOYER TO EMPLOYE
To Of . ., :
(name of employ^) (address)
You are hereby notified that the undersigned withdraws acceptance
of the provisions of Part B of "An Act Concerning Compensation
to Workmen Injured in the Course of Their Employment." (Chap.
138, Pub. Acts, 1913).
Dated at this day of 191 . . .
(signature of employer)
(address)
Note — This notice should be served upon the employe" by
personal presentation or registered mail. A copy showing date
and manner of service should be preserved.
The use of this form does not do away with the necessity of
giving notice to the Commissioner as per form No. 5.
FORM NO. 8
WORKMEN'S COMPENSATION COMMISSION OF
CONNECTICUT
This form prepared by the Commissioners is proper for ordinary
use and is recommended, but any other form or mode of statement,
substantially appropriate to the object in view, will also be deemed
sufficient.
Ink or typewriter to be used in filling out all forms.
MANNER OF ELECTING TO OPERATE UNDER
227
Connecticut
FORM FOR WITHDRAWAL OF ACCEPTANCE OF PART B BY EMPLOYE
EMPLOYE TO EMPLOYER
To of , Connecticut:
Notice is hereby given that the undersigned withdraws acceptance
of the provisions of Part B of "An Act Concerning Compensation
to Workmen Injured in the Course of Their Employment" (Chap.
138, Pub. Acts, 1913).
Dated at this day of 191. . .
To be used when em-
ploye- is an adult, or a
minor without living par-
ent or guardian.
(signature of employe)
(address)
To be used only
when employe
is a minor with
living parent or
guardian.
Witnessed by
My living parents are .
and
Address
(name of minor)
(address of minor)
By Parent
By Parent
By Guardian.
(parent or guardian must sign)
(address of signer)
(two witnesses should sign)
Note — This notice should be served upon the employer by per-
sonal presentation or registered mail. A copy showing date and
manner of service should be preserved.
The use of this form does not do away with the necessity of
giving notice to the Commissioner as per form No. 6.
228 bradbury's workmen's compensation law
Illinois
ILLINOIS
Employers and employes under the Illinois Act are divided
into two general classes and an excepted class. Those en-
gaged in the occupations specified in § 3 (6) of the Act are
conclusively presumed to have elected to adopt the com-
pensation principle, until after giving thirty days' notice
of rejection in such manner and form as is provided by the
Industrial Board. § 2.
The second class includes all other employers and employes
engaged in occupations not specified in § 3 (6) (not including,
however, the excepted class; see § 5 below). The employers
in the second class may elect to provide and pay compen-
sation by filing a notice of such election with the Industrial
Board. § 1 (a).
The excepted class specified in § 5, Second, excludes
"any person whose employment is but casual, or who is not
engaged in the usual course of the trade, business, profes-
sion, or occupation of his employer." Employes governed
by Federal laws are excluded also.
As to the first class of employers, therefore, it is not neces-
sary that they should do anything whatsoever to bring
themselves within the terms of the Act. They are con-
clusively presumed to have adopted the compensation prin-
ciple if they do nothing at all. As to the second class, they
must file a notice with the Industrial Board in order to adopt
the compensation principle.
While employers are not required to insure to adopt the
compensation principle in the first instance, they must do so,
or furnish satisfactory proof of their financial ability to pay
compensation, within ten days after the Industrial Board
so demands in writing, or an employ^ will have the alterna-
tive remedy to claim compensation or sue for unlimited dam-
ages without the right of the employer to interpose the
common-law defenses. § 26.
MANNER OF ELECTING TO OPERATE UNDER 229
Illinois
FORM NO. 1
Employer's Written Acceptance of Illinois Workmen's Compensation
Act
To the Industrial Board,
Chicago, Illinois.
Take notice, that the undersigned employer of labor in Illinois
accepts the provisions of the Act of July 1, 1913, Laws of Illinois,
1913, p. 335, commonly known as the Workmen's Compensation
Act, and elects to provide and pay compensation for accidental
injuries to employes, in accordance therewith.
Number of employes
Location of place of employment
(If more than one plant, place of business or work place, state each fully.)
Nature of employment
(If more than one kind, state each fully, with location.)
Method of providing for compensation adopted by the undersigned
(State whether mutual insurance [give name],
insurance company [give name], or carry own risk.)
Dated at this K day of , 19. ..
Signed
By..
P.O.
FORM NO. 2
Employer's Withdrawal of Acceptance of Provisions of Workmen's
Compensation Act
To the Industrial Board of the State of Illinois:
Please take notice, that the undersigned, an employer of labor
in the State of Illinois, hereby withdraws election to
be suhject to the provisions of an Act of the Legislature of the State
of Illinois, entitled: "An Act to promote the general welfare of the
people of this State by providing compensation for accidental
injuries or death suffered in the course of employment within this
State; providing for the enforcement and administering thereof,
and a penalty for its violation, and repealing an Act entitled, ' An
Act to promote the general welfare of the people of this State by
230 BRADBURY'S WORKMEN'S COMPENSATION LAW
Illinois
providing compensation for accidental injuries or death suffered
in the course of employment,' approved June 10, 1911, in force
May 1, 1912," approved June 28, in force July 1, 1913.
Dated at III., this day of , 191..
Signed [seal]
P.O. Address.
City
FORM NO. 3
Notice by Employe of Election not to be Subject to the Provisions of
the Workmen's Compensation Act
To: The Industrial Boabd, Chicago, Illinois, and
To:
(Write name of employer on above line.)
(Write address of employer on above line.)
You will please take notice that the undersigned, now in (or
being about to enter) your employ, hereby elects not to be sub-
ject to the provisions of an Act of the Legislature of the State of
Illinois, entitled: "An Act to promote the general welfare of the
people of this State by providing compensation for accidental
injuries or death suffered in the course of employment within this
State; providing for the enforcement and administering thereof, a
penalty for its violation, and repealing an Act entitled, 'An Act to
promote the general welfare of the people of this State by providing
compensation for accidental injuries or death suffered in the course
of employment,' approved June 10, 1911, in force May 1, 1912,"
approved June 28, in force July 1, 1913, commonly known as the
Workmen's Compensation Act.
Dated at 111., this day of , 19. ..
Signed
P.O. Address
City
FORM NO. 4
Employe's Withdrawal of Acceptance of Provisions of Workmen's
Compensation Act
To the Industrial Board of the State of Illinois:
Please take notice, that the undersigned, an employe in the serv-
MANNER OF ELECTING TO OPERATE UNDER 231
Illinois
ice of an employer of labor at in
the State of Illinois, hereby withdraws election to be
subject to the provisions of an Act of the Legislature of the State
of Illinois, entitled: "An Act to promote the general welfare of the
people of this State by providing compensation for accidental
injuries or death suffered in the course of employment within this
State; providing for the enforcement and administering thereof,
and a penalty for its violation, and repealing an Act entitled, 'An
Act to promote the general welfare of the people of this State by
providing compensation for accidental injuries or death suffered
in the course of employment,' approved June 10, 1911, in force
May 1, 1912," approved June 28, in force July 1, 1913.
Dated at 111., this day of , 19. ..
Signed: [seal]
P. 0. Address
City
FORM NO. 5
Employer's Withdrawal of Rejection of Provisions of Workmen's
Compensation Act
To the Industrial Board,
Chicago, Illinois.
Take notice, that the undersigned, employer of labor in Illinois,
hereby withdraws election to reject the Workmen's
Compensation Act of the State of Illinois, (Laws 1913, p. 335)
heretofore filed with the Industrial Board, Chicago, Illinois, on or
about the day of , 19. . , and
hereby accepts the provisions of said Act.
Number of Employes
Location of place of employment
(If more than one plant, place of business or work place, state each fully.)
Nature of employment
(If more than one kind state each fully, with location.)
Method of providing for compensation
(State whether mutual insurance, insurance company, or carry own risk.)
232 bradbury's workmen's compensation law
Illinois
Dated this day of , 19. ..
By
P. O
* FORM NO. 6
Employe's Withdrawal of Rejection of Provisions of Workmen's
Compensation Act
To the Industrial Board,
Chicago, Illinois.
Take notice, that the undersigned, an employe" in the service of
an employer of labor at Illinois,
hereby withdraws election to reject the Work-
men's Compensation Act of the State of Illinois (Laws 1913, p. 335)
heretofore filed with the Industrial Board, Chicago, Illinois, on or
about the day of , 19.., and
hereby accepts the provisions of said Act.
Dated this day of , 19. ..
P. 0. Address .
City
FORM NO. 7
Notice by Employer of Election not to be Subject to the Provisions of
the Workmen's Compensation Act
To the Industrial Board,
Chicago, Illinois.
Take notice, that the undersigned, employer of labor in Illinois,
hereby elects not to provide and pay compensation according to
the provisions of the Act of the Legislature of the State of Illinois,
entitled: "An Act to promote the general welfare of the people of
this State by providing compensation for accidental injuries or
death suffered in the course of employment within this State;
providing for the enforcement and administering thereof, and a
penalty for its violation, and repealing an Act, entitled: 'An Act
to promote the general welfare of the people of this State by pro-
MANNER OF ELECTING TO OPERATE UNDER 233
Iowa
viding compensation for accidental injuries or death suffered in
the course of employment,' approved June 10, 1911, in force
May 1, 1912," approved June 28, in force July 1, 1913.
Dated at this day of , 19. ..
Signed
By
Engaged in the business of:
(State in detail.)
P. O. Address
IOWA
The Iowa Act contains the presumptive election feature
and provides in detail the procedure which must be taken to
adopt or reject the compensation principle, and includes
forms in the body of the statute.
The Act does not apply to "any household or domestic
servant, farm or other laborer engaged in agricultural pur-
suits, nor persons whose employment is of a casual nature."
Part I, § 1 (a).
Employers must insure the payment of compensation
claims in order to adopt the compensation principle. Part
III, §§ 42 to 50, inclusive. See Chapter XXVII.
"Part I, § 1 (c) (4). * * * Every such employer shall be
conclusively presumed to have elected to provide, secure and
pay compensation to employes for injuries sustained arising
out of and in the course of the employment according to the
provisions of this act, unless and until notice in writing of an
election to the contrary shall have been given to the employes
by posting the same in some conspicuous place at the place
where the business is carried on, and also by filing notice with
the Iowa Industrial Commissioner with- return thereon by
affidavit showing the date that notice was posted as by this
act provided. Provided, however, that any employer be-
ginning business after the taking effect of this act and giving
notice at once of his desire not to come under the provisions
of this act, shall not be considered as under the act. Provided,
234 bbadbuky's workmen's compensation law
Iowa
however, that such employer shall not be relieved of the pay-
ment of compensation as by this act provided until thirty
days after the filing of such notice with the Iowa Industrial
Commissioner, which notice shall be substantially in the fol-
lowing form:
"Employers' Notice to Reject
"To the employes of the undersigned, and the Iowa Industrial
Commissioner:
"You and each of you are hereby notified that the undersigned
rejects the terms, conditions and provisions to provide, secure and
pay compensation to employes of the undersigned for injuries
received as provided in the acts of the ( ) General
Assembly known as Chapter ( ) and elects to pay dam-
ages for personal injuries received by such employe" under the
common law and statutes of this state modified by subdivi-
sions one, two, three and four of section one, chapter ( )
of the acts of the ( ) General Assembly and acts
amendatory thereto.
"Signed
"State of Iowa 1
" County J
"The undersigned being first duly sworn deposes and says that
a true, correct and verbatim copy of the foregoing notice was on
the day of ,19. ., posted at
{Slate fully place where posted.)
"Subscribed and sworn to before me by this
day of , 19. ..
"Notary Public.
"The employer shall keep such notice posted in some con-
spicuous place which shall apply to the employes subsequently
employed by the employer with the same force and effect and
to the same extent and in like manner as employes in the em-
ploy at the time the notice was given.
"Where the employer and employe" have not given notice of
an election to reject the terms of this act, every contract of
hire express or implied, shall be construed as an implied agree-
MANNER OF ELECTING TO OPERATE UNDER 235
Iowa
ment between them and a part of the contract on the part of
the employer to provide, secure and pay, and on the part of
the employe' to accept compensation in the manner as by this
act provided for all personal injuries sustained arising out of
and in the course of the employment.
"Part I, §3 (a) * * * all employes affected by this act
shall be conclusively presumed to have elected to take com-
pensation in accordance with the terms, conditions and provi-
sions of this act until notice in writing shall have been served
upon his employer; and also on the Iowa Industrial Com-
missioner, with return thereon by affidavit showing the date
upon which notice was served upon the employer.
" (6) In the event such employ^ elects to reject the terms,
conditions and provisions of this act, the rights and remedies
thereof shall not apply where an employ^ brings an action or
takes proceedings to recover damages or compensation for
injuries received growing out of and in the course of his em-
ployment, except as otherwise provided by this act; and in
such actions where the employe has rejected the terms of this
act the employer shall have the right to plead and rely upon
any and all defenses including those at common law, and the
rules and defenses of contributory negligence, assumption of
risk and fellow servant shall apply and be available to the
employer as by statute authorized unless otherwise provided
in this act. Provided, however, that if an employ^ sustains an
injury as the result of the employer's failure to furnish or
failure to exercise reasonable care to keep or maintain any
safety device required by statute or rule, or violation of any
of the statutory provisions or rules and regulations now or
hereafter in force relating to safety of employes, the doctrine
of assumed risk in such case growing out of the negligence of
the employer shall not apply or be available as defensive mat-
ter to such offending party. The notice required to be given
by an employ6 shall be substantially in the following form:
"Employes' Notice to Reject
"To and the Iowa Industrial Commissioner.
(name of employer)
"You and each of you are hereby notified that the under-
236 Bradbury's workmen's compensation law
Iowa
signed hereby elects to reject the terms, conditions and provi-
sions of an act for the payment of compensation as provided
by the acts of the ( ) General Assembly and acts
amendatory thereto, and elects to rely upon the common law
as modified by section three of the acts of the ( . . . )
General Assembly for the right to recover for personal injury
which I may receive, if any, growing out of and arising from
the employment while in line of duty for my employer above
named.
"Dated this day of , 19. . .
"Signed
"State of Iowa 1
" County f ss"
"The undersigned being first duly sworn deposes and says
that the written notice was on the day of
, 19 . . served on the within named employer of
the undersigned by delivering to a true, correct
(name of person served)
and verbatim copy thereof.
"Subscribed and sworn (or affirmed) to before me by the
said this day of , 19. ..
"Notary Public.
"In any case where an employe or one who is an applicant
for employment elects to reject the terms, conditions, and
provisions of this act, he shall, in addition to the notice re-
quired by subdivision (6) of section 3 of this act, state in an
affidavit to be filed with said notice who, if any, person, re-
quested, suggested, or demands of such person to exercise
the right to reject the provisions of this act. And if request,
suggestion, or demand has been made of such employe by
any person, such employe^ shall give and state the name of the
person who made the request, suggestion, or demand, and
all of the circumstances relating thereto, the date and place
when and where made, and persons present, and if it be found
that the employer of such employe, or an employer to whom
an applicant for employment, or any person a member of the
firm, association, corporation, or agent or official of such
MANNER OF ELECTING TO OPERATE UNDER 237
Iowa
employer, made a request, suggestion, or demand of such
employ^ or applicant for employment to reject the terms,
conditions and provisions of this act, such request, suggestion,
or demand if made under such conditions, shall be conclu-
sively presumed to have been sufficient to have unduly in-
fluenced such employe or an applicant for employment to
exercise the right to reject the terms of this act, and the re-
jection made under such circumstances shall be conclusively
presumed to have been procured through fraud and thereby
fraudulently procured, and such rejection shall be null and
void and of no effect.
"No person interested in the business of such employer,
financially or otherwise, shall be permitted to administer the
oath to the affidavit required in case an employ^ or applicant
for employment elects to exercise the right to reject the pro-
visions of this act. And the person administering such oath
in making such affidavit, shall carefully read the notice and
affidavit to such person making such rejection, and shall ex-
plain that the purpose of the notice is to bar such person from
recovering compensation in accordance with the schedule and
terms of this act in the event that he sustains an injury in the
course of such employment. All of which shall be shown by
certificate of the person administering the oath herein con-
templated. The Iowa Industrial Commissioner, or any per-
son acting for such commissioner, shall refuse to file the notice
and affidavit, unless such notice, affidavit and certificate fully,
and in detail, comply with the requirements hereof. And if
such rejection, affidavit and certificate is found insufficient
for any cause, shall be returned by mail or otherwise to the
person who executed the instrument.
"§ 4 (a). When the employer or employ^ has given notice
in compliance with this act electing to reject the terms thereof
such election shall continue and be in force until such employer
or employe shall thereafter elect to come under the provisions
of this act as is provided in subdivision (b) of this section.
" (6) When an employer or employ^ rejects the terms, con-
ditions or provisions of this act, such party may at any time
thereafter elect to waive the same by giving notice in writing
in the same manner required of the party in electing to reject
238 bkadbtjby's workmen's compensation law
Kansas
the provisions of the act and which shall become effective
when filed with the Iowa Industrial Commissioner.
"§ 5. Where the employer and employe" elect to reject the
terms, conditions and provisions of this act, the liability of
the employer shall be the same as though the employe" had
not rejected the terms, conditions and provisions thereof.
" § 6. An employer having come under this act, who here-
after elects to reject the terms, conditions and provisions
thereof, shall not be relieved from the payment of compensa-
tion to such employ6 who sustains an injury in the course of
the employment before the election to reject becomes effective;
and in such cases the employer shall be required to secure the
payment of any compensation due or that may become due
to such workman, subject to the approval of the Iowa In-
dustrial Commissioner."
KANSAS
The Kansas Act contains the presumptive election feature
and specifies particularly the steps which must be taken to
elect not to adopt the^compensation principle.
"§ 44. All employers as defined by and entitled to come
within the provisions of this act, shall be presumed to have
done so unless such employer shall file with the secretary of
state at Topeka, Kansas, a written statement that he elects
not to accept thereunder, and thereafter any such employer
desiring to change his election shall only do so by filing a
written declaration thereof with the secretary of state. Notice
of such election shall be forthwith posted by such employer
in conspicuous places in and about his place of business."
(As am'd by L. 1913, c. 216, approved March 10, 1913, in effect
March 12, 1913.)
"§ 45. Every employe" entitled to come within the pro-
visions of this act, shall be presumed to have done so unless
such employe" shall file with the secretary of state, before
injury, a written declaration that he elects not to accept
thereunder and thereafter any such employe" desiring to change
MANNER OP ELECTING TO OPERATE UNDER 239
Kansas
his election shall only do so by filing a written declaration
thereof with the secretary of state. Any contract wherein
an employer requires of an employe1 as a condition of em-
ployment that he shall elect not to come within the provisions
of this act shall be void." (As am'd by L. 1918, c. 216, op-proved
March 10, 1918, in effect March 12, 1913.)
FORM
Notice of Employer of Election not to Pay Compensation
(§44)
Please take notice that the undersigned elects not to adopt the
compensation features of an act to provide compensation for
workmen injured in certain hazardous industries, in effect as
amended March 12, 1913.
Dated the day of , 19. ..
Employer.
The above notice must be filed with the Secretary of State
at Topeka, Kansas, and also posted in conspicuous places
in and about the employer's place of business. § 44.
FORM
Notice by Employer of Withdrawal of Rejection of Compensa-
tion Act
(§44)
Please take notice that the undersigned hereby withdraws its
election as indicated in a notice dated the day of
t 19 . . to reject the provisions of an act to provide
compensation for workmen injured in certain hazardous industries,
effective March 12, 1913, and hereby elects to adopt the compen-
sation provisions of said Act.
Dated the day of , 19. . .
Employer.
240 bradbury's workmen's compensation law
Kansas
The foregoing notice must be filed with the Secretary of
State at Topeka, Kansas, and also posted in conspicuous
places in and about the employer's place of business. § 44.
FORM
Notice of Employer Employing Less than Five Workmen to
Addpt the Compensation Principle
(§§ 8 and 44)
Please take notice that the undersigned employer hereby elects
to adopt the compensation provision of an act to provide compensa-
tion for workmen injured in certain hazardous industries effective
as amended March 12, 1913.
Dated the day of , 19. ..
, Employer.
The foregoing notice should be filed with' the Secretary
of State at Topeka, Kansas, and also posted in conspicuous
places in and about the employer's place of business. §§ 8
and 44.
FORM
Notice by Employe of Rejection of Compensation Provision
(§45)
Please take notice that the undersigned, an employ6 of ,
at , hereby elects not to accept the compensation
provision of an act to provide compensation for workmen injured
in certain hazardous industries, effective as amended, March 12,
1913.
Dated the day of , 19....
Employ^.
The foregoing notice must be filed with the Secretary of
State before the injury. § 45.
There does not appear to be any provision for serving
the notice on the employer.
MANNER OP ELECTING TO OPERATE UNDER 241
Maryland
FORM
Notice by Employe of Withdrawal of Notice of Rejection of Act
(§45)
Please take notice that the undersigned, an employe1 of ,
at , hereby withdraws a notice dated the
day of , 19 . . , of rejection of the provisions of an act
to provide compensation for workmen injured in certain hazardous
industries, effective, as amended, March 12, 1913, and hereby
elects to adopt the compensation provision of said act.
Dated the day of , 19. . .
Employ^.
The foregoing notice must be filed with the Secretary of
State. There does not appear to be any provision in the Act
for serving it on the employer. § 45.
MARYLAND
The Maryland Act provides for a special contract be-
tween each employer and each employe, if they desire to
agree upon the plan of compensation specified in the Act.
Such an agreement must be based on insurance in some
casualty insurance company organized under the laws of
the State of Maryland, or admitted to do business in that
State, except that an employer who has not less than 1,500
employ6s may establish an insurance fund from sums con-
tributed by himself and his employes. §§ 1 and 2.
The Insurance Commissioner is required to prepare blanks
containing contracts and policies in compliance with the
provisions of the Act and to distribute the same upon appli-
cation, free of charge. § 18.
Up to a recent period the Commissioner of Insurance had
not formulated such a contract as no employer had requested
16
242 bkadbury's workmen's compensation law
Massachusetts
one. This means, of course, that no employers have yet
adopted the Maryland Compensation Act.
MASSACHUSETTS
In order to adopt the compensation principle in Massa-
chusetts an employer must become a "subscriber." This
means that he must become a member of and take a policy
in the Massachusetts Employes Insurance Association, or
must secure a policy from some stock liability insurance
company, or some mutual insurance association authorized
to do business in the State of Massachusetts, insuring the
compensation risk under the Act in favor of his employes.
Every subscriber is required to give notice in writing or
print to all persons under contract of hire with him, that he
has provided for payment to injured employes by the Massa-
chusetts Employes Insurance Association, or by some other
insurance company or mutual association. He must also
give a like notice to every person with whom he is about
to enter into a contract. Part IV, §§ 20, 21. The employers
also are required to file a copy of the notice which they give
to their employes, with the Industrial Accident Board.
Part IV, § 21.
If the employer ceases to be a subscriber he must give
notice in writing or print to all persons under contract with
him and must also file a copy of the notice with the Indus-
trial Accident Board. Part IV, § 22. The specific manner
in which notices shall be given is subject to the rules of the
Industrial Accident Board. Part IV, § 21.
An employe1 of a subscriber is deemed to have waived his
right of action at common law to recover damages for per-
sonal injuries if he shall not have given his employe, at the
time of his contract of hire, notice in writing that he claimed
such right, or if the contract of hire was made before the
employer became a subscriber, if the employe shall not have
given the said notice within thirty days of notice of such
MANNER OF ELECTING TO OPERATE UNDER 243
Massachusetts
subscription. An employe* who has given notice to his em-
ployer that he claimed his right of action at common law
may waive such claim by a notice in writing which shall
take effect five days after it is delivered to the employer or
his agent. Part I, § 5.
This notice by the employ© is to be given in such manner
as the Industrial Accident Board may approve. See Laws
1912, Chap. 666, § 2.
The Act does not apply to a casual employe* nor to one
whose employment "is not in the usual course of the trade,
business, profession or occupation of his employer, nor to
masters and seamen engaged in interstate or foreign com-
merce. Part V, § 2.
FORM
Notice to Employes
As required by Chapter 751, of the Acts of 1911, Commonwealth
of Massachusetts, and amendments thereto, entitled "An Act
relative to payment to employes for personal injuries received in
the course of their employment, and to the prevention of euch
injuries."
This will give you notice that I (we) have provided for payment
to our injured employes under the above act by insuring with the
Insurance Co.
Insert address of company here.
Date
Name of employer.
Address •
City or town. Street and number.
"Manner of giving Notice by Employer of Acceptance of the
Act. If personal service is not made of the notices required by
sections 20 and 21 of Part IV, chapter 751 of the Acts of 1911,
and the amendments thereto, said notices may be given by
posting the same at one or more of the principal entrances to
the factory, shop or place of business of the employer, and in
each room where labor is employed; said notices to be printed
244 bradbury's workmen's compensation law
Massachusetts
or typewritten." Rule No. 1, of the Mass. Industrial Ace.
Board.
FORM
the commonwealth of massachusetts
Industrial Accident Board
Notice, of Claim of Common-Law Rights
.191
To.
Name of employer.
This is to notify you that I claim my right of action at common
law to recover damages for personal injuries. This notice is given
to you under the Acts of 1911, Chapter 751, § 5, Part I, and amend-
ments thereto.
Signature of employe.
Address,
City or Town, Street and No.
"Manner of giving Notice by Employe to Employer. In
each instance the notice shall be served upon the employer,
or upon one employer if there are more employers than one, or
upon any officer or agent of a corporation if the employer is a
corporation, by delivering the same to the person on whom it is
to be served, or by leaving it at his residence or place of busi-
ness, or by sending it by registered mail addressed to the per-
son or corporation on whom it is to be served, at his last
known residence or place of business." (§ 5, Part I, chapter
751, of the Acts of 1911, and amendments thereto.) Rule
No. 2, of the Mass. Industrial Ace. Board.
FORM
the commonwealth of massachusetts
Industrial Accident Board
Notice of Waiver of Rights under Common Law Previously
Claimed
191..
To Employer.
This is to notify you that I waive my rights under the common
MANNER OP ELECTING TO OPERATE UNDER 245
— . f~ .
Michigan
law previously claimed by former notice, and now claim my rights
under the workmen's compensation act. This notice is given to
you under the Acts of 1911, Chapter 751, § 5, Part I, and amend-
ments thereto.
Signature of employe.
See Rule No. 2 of the Massachusetts Industrial Accident
Board quoted below the preceding form.
MICHIGAN
Employers. There are two distinct affirmative steps
which must be taken by employers to bring themselves
within the terms of the Michigan Act. There is no presump-
tion that they have adopted the compensation principle
until these affirmative steps are taken. Under the terms
of the statute (Part IV, § 1) both of these acts are to be
done at the same time.
The election is made by filing with the Industrial Accident
Board a written statement to the effect that such employer
accepts the provisions of the Act and adopts one of the four
methods provided for the payment of the compensation
specified. Part I, § 6.
"At the time of so doing" the employer shall have the
right to specify which of the four methods for the payment
of such compensation provided by the statute, he shall adopt.
Part IV, § 1. These four methods are self-insurance if of
sufficient financial ability, stock or mutual insurance or
with the State insurance fund. Part IV, § 1.
Within ten days after approval by the Industrial Accident
Board of the manner of payment of compensation by the
employer electing to operate under the Act the employer
must "post in a conspicuous place in his plant, shop, minor
place of work, or if such employer be a transportation com-
pany, at its several stations and docks, notice in the form as
prescribed and furnished by the Industrial Accident Board to
246 bradbury's workmen's compensation law
Michigan
the effect that he accepts and will be bound by the provi-
sions of" the Compensation Act. Part I, § 6.
The effect of a failure to post notices about the employer's
plant of an election to operate under the Act apparently does
not have any effect on the rights and liabilities of the em-
ployer in relation to his employes under the Compensation
Act. This is so because "notwithstanding the failure to
give, or the insufficiency of, any such notice, knowledge of
all filed statements of election and notices of withdrawal of
election, and of the time of the filing of the same, shall con-
clusively be imputed to all employes." Part III, § 4.
After having once duly elected to operate under the Act the
employer is bound by his election for the term of one year
"from the date of filing such statement, and thereafter,
without further act on his part, for successive terms of one
year each, unless such employer shall, at least thirty days
prior to the expiration of such first or any succeeding year,
file in the office of said Board a notice in writing to the effect
that he desires to withdraw his election to be subject to the
provisions of this Act." Part I, § 6.
When an employer withdraws his election to operate
under the Act the Board "shall likewise cause notice to be
given of the filing of any withdrawal of such election." The
statute does not specify how this notice of withdrawal shall
be given to employe's. Apparently this matter is left to the
judgment of the Industrial Accident Board. Failure to
post notices of withdrawal does not defeat the effectiveness
of such withdrawal, if a proper notice is filed with the Board.
All employes are conclusively presumed to have notice of
the filing of the notice of withdrawal with the Board. Part
HI, § 4.
The State and political subdivisions thereof as well as pub-
lic boards and commissions are compulsorily brought within
the terms of the statute without any affirmative action on
their part whatsoever. Part I, § 5, I.
Employes are presumed to have accepted the Act when
MANNER OF ELECTING TO OPERATE UNDER 247
Michigan
their employers have elected to adopt the compensation
principle unless the employ^ gives notice, in writing to his
employer that he elects not to be subject to the provisions
of the Act. Part I, § 7.
An employe1 who has given such a notice may waive such re-
jection by a notice in writing, which shall take effect five days
after its delivery to the employer or his agent. Part II, § 7.
"The evident intent of the law is that in case of an old
employ^, who when notices are posted continues to work
without giving notice that he will be subject or that he will
not be subject to the law, and so continues to work for a
period of thirty days, then his action in continuing to work
is equivalent to an actual acceptance, and he is deemed
subject to the law. But if he is injured after having con-
tinued to work as above stated for a less period, say twenty
days; then we think he would retain the right to decide
whether to make claim under the common law, or under the
Compensation Act. If he made claim under the common
law and brought suit, the employer would retain bis former
defenses, the same as if the employe had made his election
not to come under the act before the time of the injury."
Ruling of Michigan Industrial Accident Board, October,
1912. A somewhat different conclusion was reached by
the California Industrial Accident Board, which latter de-
cision was sustained by the Superior Court at San Fran-
cisco. See ante, pages 215-216.
FORM
Employer's Acceptance
(Act No. 10 of Public Acts, Extra Session 1912.)
Industrial Accident Board,
Lansing, Mich.
Take notice that the undersigned employer of labor in Michigan
248 bradbuky's workmen's compensation law
Michigan
accepts the provisions of Act No. 10 of Public Acts, Extra Session,
1912.
Number of employes .
Location of place of employment
(If ngpre than one plant, place of business or work place, state each fully.)
Nature of employment
(If more than one kind, state each fully, with location.)
Method of providing for compensation adopted by the under-
signed
(State whether Mutual Insurance [give name], Insurance Company [give name]. State Insurance
Commissioner or carry own risk.)
Dated at ,this day of 19. ..
By.
(P. O. Address.)
Note; — If employer wishes to accept the provisions of the above
law, this notice must be signed by the employer and filed with the
Industrial Accident Board. When so filed it becomes immediately
binding on the employer. If employer is a corporation, the notice
MANNEB OF ELECTING TO OPERATE UNDER 249
Michigan
should have the corporate name and seal affixed and be signed by
an officer having authority to do so.
FORM
Notice to Employes to Be Posted
To Employes
All workmen or operatives employed by the undersigned in or
about this establishment are hereby notified that the employer
or employers owning or operating the same have filed with the
Industrial Accident Board, at Lansing, notice of election to become
subject to the provisions of Act No. 10 of Public Acts, Extra Ses-
sions 1912.
(This Act is commonly known as the Workmen's Compensation
Law.)
You are further notified that unless you serve written notice on
your employer of your election not to come under the law, the act
will immediately apply to you.
If you do notify your employer that you elect not to come under
said act, you may afterwards waive such claim by a notice in writ-
ing, which shall take effect five days after it is delivered to the
employer, at the expiration of which period the law will apply to
you.
Injury not Resulting in Death — Notice of
An employe who has been injured in the course of his employ-
ment and whose incapacity extends over a period of two weeks
(§ 3, part 2) shall serve written notice of such injury on his em-
ployer (from whom blank forms may be obtained), which notice
shall be signed by the person injured and shall state in ordinary
language the time, place and cause of the injury (§ 16, part 2).
Injury Resulting in Death — Notice of
When death results from an injury received by an employe in
the course of his employment, notice shall be served by his de-
pendents, or by a person in their behalf (§ 16, part 2).
250 bbadbtjby's wobkmen's compensation law
Michigan
Limit of Period of Notification
Notice of the injury shall be given to the employer within three
months after the happening thereof, and claim for compensation
shall be made within six months, or in case of death or in the event
of physical or mental incapacity, notice shall be given within six
months after the death or removal of such mental or physical in-
capacity. No proceeding for compensation under this Act shall
be maintained unless these rules are observed (§ 15, part 2).
Date
(Employer.)
The foregoing notice is a large poster and is furnished by
the Industrial Accident Board. The forms furnished by the
Board must be used. Part I, § 6.
FORM
Proof of Posting Notices
Industrial Accident Board,
Lansing, Mich.
We do hereby certify that on the day of
we posted in the most prominent places in and around our place
of business, viz. :
(Insert workrooms, mines, stations, etc.)
printed notices of our acceptance of the provisions
(Give number.)
of Act No. 10 of Public Acts Extra Session 1912, the same being
notices furnished by the Industrial Accident Board; and we further
certify that said notices were conspicuously posted and securely
fastened.
Dated at day of , 19. . .
MANNER OP ELECTING TO OPERATE UNDER 251
Minnesota
MINNESOTA
The Minnesota Act contains the presumptive election
feature as to all employers and employes who are brought
within the terms of the Act. That is, all employers and all
employes are presumed to have adopted the compensation
principle unless they take some affirmative action to the
contrary. Of course, employes cannot adopt the compensa-
tion principle until their employers have first elected to do
so. The statute points out specifically the steps which
must be taken as follows:
"Part II, § 11. Contracts presumed to have been made in
writing. — All contracts of employment made after the taking
effect of this act shall be presumed to have been made with
reference, and subject to the provisions of Part 2, unless
otherwise expressly stated in the contract, in writing, or un-
less written or printed notice has been given by either party
to the other, as hereinafter provided, that he does not accept
the provisions of Part 2. Every employer and every employ^
is presumed to have accepted and come under Part 2 hereof,
unless thirty (30) days prior to accident, he shall have signified
his election not to accept or be bound by the provisions of
Part 2. This election not to accept Part 2 shall be by notice
as follows:
"The employer shall post and keep posted in his shop or
place of business a written or printed notice of his election not
to be bound by Part 2 hereof and file a duplicate thereof with
the labor commissioner.
"The employe1 shall give written or printed notice to the
employer of his election not to be bound by Part 2, and file a
duplicate with proof of service attached thereto with the labor
commissioner.
"§ 12. Either party may terminate agreement. — Either
party may terminate his acceptance, or his election not to
accept of the provisions of Part 2 by thirty (30) days' written
252 bkadbuhy's workmen's compensation law
Minnesota
notice to the other. A duplicate of such notice with proof of
service attached thereto shall be filed with the labor commis-
sioner and the time shall not begin to run until the notice is so
filed.
"Provided, however, that during the thirty (30) days im-
mediately succeeding the taking effect of this act, notice of
election not to #ccept the provisions of Part 2 may be given
by either party to the other as above provided, and shall be
immediately effective as a notice of election, upon filing du-
plicate thereof with the labor commissioner."
The Act does not apply to "domestic servants, farm la-
borers, or persons whose employment at the time of the in-
jury is but casual and not in the usual course of the trade,
business, profession or occupation of the employer." § 8.
From the foregoing it appears that the Minnesota Act
does cover casual employes when they are employed in the
usual course of the trade, business, profession or occupation
of the employer. There has been a good deal of confusion
on this subject. The British statute, from which the term
"casual employe's" was taken, has a double meaning, and
this same term has been used in the Minnesota Act. Some
of the statutes, like that of Illinois, for example, specify
two classes of employes in connection with the term "cas-
ual." It provides that neither casual employes nor those
who are not engaged in the usual course of the trade, busi-
ness, profession or occupation of the employer come within
the terms of the compensation act. The Minnesota Act,
however, couples these two requirements together. It
merely excludes those employes who are casual and not en-
gaged in the usual course of the trade, business, profession
or occupation of the employer. The result is that casual
employes who are engaged in the usual course of the trade,
business, profession or occupation of the employer are cov-
ered by the Act. See also § 34.
MANNER OF ELECTING TO OPERATE UNDER 253
Minnesota
FORM
Notice of Employer to Employes that Employer Is Insured
(§31 A)
Date
Notice is hereby given to the employes of
(Name of Employer.)
that said employer
has insured his liabilities under the Minnesota Workmen's Com-
pensation Act, which is Part 2, Chapter 467, G. L. 1913, and that
such insurance is carried with
(Name of Insurance Company.)
whose office is located at
(Address of Insurance Company.)
and that employes injured in the service of
(Name of employer.)
must present their claims directly to said insurance company for
adjustment. A copy of this notice was filed with the State Labor
Commissioner on , 191 .. , as required by § 31a of
Chapter 467, General Laws, 1913.
Signed
FORM
Notice of Employers to Employes that Employer Elects Not to
Adopt the Compensation Principle
(§11)
Date
Notice is hereby given to the employes of
that said employer has elected
Not to be bound by the provisions of the Minnesota Workmen's
Compensation Law, Part 2, of Chapter 467, G. L., 1913, of the
State of Minnesota, and that a duplicate of said notice of such elec-
tion has been filed with the Labor Commissioner of the State of
Minnesota, as required by § 11, of said law.
Signed
254 bradbury's workmen's compensation law
Minnesota
FORM
Notice of Workman to Employer that Workman Elects not to
Accept Compensation 1
(§11)
* Date
To ,
(Employer.)
Notice is hereby given that the undersigned has elected not to
be bound by the provisions of the Minnesota Workmen's Com-
pensation Law, Part 2 of Chapter 467, G. L. 1913, of the State
of Minnesota, pursuant to § 11 of said law.
(Workman.)
Affidavit of Service
State of Minnesota
County of
, being duly sworn, says that he is over the age
of years and that on the day of ,
19.. at
in the State of Minnesota, he served the foregoing notice on
* by delivering to and leaving with
said a duplicate
original thereof.
(If the employer is a corporation proceed as above to * and then
as follows): by delivering to and leaving with
a duplicate original of said notice. Deponent further says that
he knew said person so served to be an officer, to wit: the
of said a corporation.
(// the employer is a partnership, service on one partner will doubt-
less be sufficient; in which case the affidavit of service should proceed
1 A duplicate original of the foregoing notice should be served on the
employer and then a duplicate original with the affidavit of service should
be filed with the Labor Commissioner.
This notice does not have any effect on accidents which happen within
thirty days after the notice is given.
MANNER OF ELECTING TO OPERATE UNDER 255
Nebraska
as follows from *, in the above form): by delivering to and leaving
with. a duplicate original of said notice.
Deponent further says that he knew the person so served to be one
of the partners of the said firm of
Sworn to before me this
day of 19..
NEBRASKA
For the application of the Nebraska Act employers and
employes must be divided into three classes:
The first includes those specified in § 6 (1), that is, the
State of Nebraska and every governmental agency created
by it and every employer in the State employing five or
more employes in the regular trade, business, profession or
vocation of such employer (excluding those in the excepted
classes hereinafter specified).
The second includes all other employers (excluding the
excepted classes hereinafter specified).
The third includes employers and employes who are ex-
cepted from the operation of the Act. See § 6 (2) and § 15
(3) and (4).
As to the employers and employes engaged in the occupa-
tion specified in § 6 (1) they are presumed to have elected to
adopt the compensation principle until they give notice to
the contrary. § 12. Therefore, as to such employers and
employes it is not necessary to take any action if they de-
sire to adopt the compensation principle.
As to those employers who come under the second class
they may "by their joint election, filed with the Insurance
Commissioner, accept the provisions of Part II of this Act,
and such acceptances shall subject them to the said provi-
sions of Part II hereof to all intents and purposes as if they
had been originally included in the terms of subdivision 2 of
this section; Provided, however, that either such employer or
256 bradbury's workmen's compensation law
Nebraska
workman (prior to accident) shall have the right to waive
such election to come under Part II hereof, the procedure
being the same as indicated in Subdivisions (a) and (6) of
§ 12." § 6 (3).
It will be noted that the manner of electing to operate
under the compensation principle by those who do not
primarily come thereunder by the terms of the statute, is
somewhat different, under the Nebraska law, from that
which obtains under most of the ' compensation statutes.
Usually the employer signifies his election to adopt the
compensation principle and then the employe1 is presumed
to have adopted the compensation principle also, unless he
files or serves a notice to the contrary. Under the Nebraska
law, however, the election to adopt the compensation prin-
ciple, by employers and employes who are not in the first
class must be by the joint action of both. The employers,
therefore, cannot bring their employe's within the terms of
the compensation principle by mere notice, but must do so
by joint agreement which must be signed and filed with the
Insurance Commissioner.
The excepted classes under the Nebraska Act are im-
portant. Under § 6 (2) they include household domestic
servants, farm laborers, and all employers employing less
than five employes in the regular trade, business, profession
or vocation of such employers, and also railroad companies
engaged in interstate or foreign commerce who are subject
to the powers of Congress. § 6 (2). There are also excepted
from the operations of the Act, by § 15 "any person whose
employment is casual, or not for the purpose of gain or profit
by the employer, or which is not in the usual course of the
trade, business, profession or occupation of his employer.
The term 'casual' shall be construed to mean 'occasional;
coming at certain times without regularity, in distinction
from stated or regular.'" There are also excepted "any
person to whom articles and materials are given to be made
up, cleaned, washed, finished, repaired or adapted for sale
MANNER OF ELECTING TO OPERATE UNDER 257
Nebraska
in the worker's own home or on other premises not under
the control or management of the employer, unless the em-
ploye is required to perform the work at a place designated
by the employer." § 15 (3) and (4).
It is left a little uncertain from the wording of the statute
whether or not these employers and employes in the excepted
class may bring themselves within the terms of the compen-
sation principle at all. While from a strict interpretation of
the statute it is possible that it might be construed to deny
the right to bring the excepted class within the terms of the
act, nevertheless subdivision (3) of § 6 seems to indicate an
intent on the part of the Legislature to permit all employers
and employes not included in subdivision (1) of § 6 to agree
jointly to adopt the compensation principle by signing an
agreement electing to do so and filing it with the Insurance
Commissioner.
"Part II, § 12. (Method of election.) In the occupations
described in section 6 hereof, and all contracts of employ-
ment made after the taking effect of this Act shall be pre-
sumed to have been made with reference, and subject to the
provisions of Part II hereof, unless otherwise expressly stated
in the contract, or unless written or printed notice has been
given by either party to the other, as hereinafter provided,
that he does not accept the provisions of Part II. Every
such employer and every employe" is presumed to accept and
come under Part II hereof, unless prior to accident he shall
signify his election not to accept or be bound by the provi-
sions of Part II. This election not to accept Part II shall be
by notice as follows:
"(a) The employer shall post and thereafter keep contin-
uously posted in a conspicuous place about the place or places
where his workmen are employed a written or printed notice
of his election not to be bound by Part II heteof , and shall file
a duplicate thereof with the Insurance Commissioner.
"(b) The employe" shall give written or printed notice to
the employer of his election not to be bound by Part II and
17
258 bradbury's workmen's compensation law
Nebraska
shall file a duplicate with proof of service attached thereto
with the Insurance Commissioner.
"Part II, § 13. (Waiving election.) An employer who has
given notice of his election not to accept or be bound by the
provisions of Part II hereof, may waive such election at any
time, by posting about the place or places where his workmen
are employed ji written or printed notice setting forth a with-
drawal of his previous election not to be bound by the provi-
sions of Part II. A duplicate of such notice with proof of such
posting attached thereto shall be filed with the Insurance
Commissioner.
"An employe1 who has given written or printed notice to his
employer that he elects not to be subject to the provisions of
Part II hereof, may waive such election at any time prior
to the happening of an accident resulting in personal injuries
to said employe, by a notice in writing directed to the employer
and served upon the employer or his agent. . A duplicate of
such notice with proof of service attached thereto shall be
filed with the Insurance Commissioner.
"The waivers referred to in the preceding paragraphs of this
section shall not become effective until noon of the fifth day
after filing the required notice with the Insurance Commis-
FORM
Election of Employers and Employes, other than those Specified
hi § 6 (i), to Adopt the Compensation Principle
[§ 6 (3)]
We, employers, and employ6s of the
above-named employers, hereby accept the provisions of Part II
of the Act prescribing the liability of an employer to make com-
pensation for injuries received by an employ^ in the course of em-
ployment, approved April 21, 1913, and all amendments thereof,
known as the Workmen's Compensation Act, and submit ourselves
to the said provisions of Part II of said Act to all intents and pur-
poses as if we had been originally included in the terms of said Act.
MANNER OF ELECTING TO OPERATE UNDER 259
Nebraska
In Witness Whereof, we have hereunto set our hands and seals
this day of » . ., 19. ..
Employers.
Witnesses:
Employes.
The foregoing agreement should be filed with the Insurance
Commissioner. It does not require the approval of the
Insurance Commissioner to make it effective.
FORM
Notice by Employer of Election not to Pay Compensation
[Part II, § 12 (o)]
Notice is hereby given to the employes of the undersigned of the
election of the undersigned not to be bound by Part II of an act
prescribing the liability of an employer to make compensation for
injuries received by an employe in the course of the employment,
approved April 21, 1913, and amendments thereof.
Dated the day of , 19. ..
Employer.
Employers who desire to elect not to be bound by the
compensation principle must keep continuously posted in a
conspicuous place about the place or places where his work-
men are employed a written or printed notice substantially
in compliance with the above form, and must file a duplicate
of the notice with the Insurance Commissioner.
FORM
Notice by Employe of his Election not to Be Bound by Part II
of the Compensation Act
[§12(6)1
TO
Employer.
Please take notice that the undersigned hereby elects not to be
260 bradbury's workmen's compensation law
Nebraska
bound by Part II of the Act prescribing the liability of the em-
ployer to make compensation for injuries received by an employe in
the course of his employment, approved April 21, 1913, and amend-
ments thereof.
Dated the day of , 19. ..
s
fc Employ!
Address.
The above notice must be given by the employe to the
employer and the employe must file a duplicate original of
the notice, with proof of service attached thereto, with the
Insurance Commissioner.
The proof of service should be substantially in the follow-
ing form:
FORM
Proof of Service of Notice by Employ^
[§ 12 (&)]
State of Nebraska
County of
• • • • , being duly sworn, deposes and says that he is
over the age of years, and that on the ...
day of , 19. ., at
in the State of Nebraska, he served the foregoing notice on
* by delivering to and leaving
with said a duplicate original
thereof.
(If the employer is a corporation proceed as above to * and then as
follows: by delivering to and leaving with
a duplicate original of said notice. Deponent further says that he
knew said person so served to be an officer, to wit, the
of said , a corporation.)
(If the employer is a partnership, service on one partner will dovbt-
less be sufficient; in which case the affidavit of service shovM proceed
as follows from the * in above form: by delivering to and leaving
MANNEB OF ELECTING TO OPERATE UNDER 261
Nebraska
with a duplicate original of said notice. Deponent
further says that he knew the person so served to be one of the
partners of the said firm of )
Sworn to before me this
day of 19..
FORM
Employer's Withdrawal of Notice of Election not to Be Bound
by Compensation Feature of the Statute
(§13)
The undersigned employer hereby gives notice to its (his) em-
ployes that it (he) hereby withdraws the notice heretofore given
not to be bound by the provisions of Part II of an act prescribing
the liability of an employer to make compensation for injuries re-
ceived by an employe" in the course of his employment, known as
the Workmen's Compensation Act, approved April 21, 1913, and
hereby accepts the provisions of Part II of said Act.
Dated the day of , 19. . .
Employers.
The above notice must be posted about the place or places
where the workmen of the employer are employed. It may
be written or printed. A duplicate of the notice, with proof
of such posting attached must be filed with the Insurance
Commissioner. The affidavit of posting should be substan-
tially in the following form:
ss.
FORM
Affidavit of Posting
State of Nebraska )
County of J
, being duly sworn, deposes and says, that he is
the employer named in the above notice. (Or in case of partnership;
that he is one of the employers named in the above notice and a
member of the firm of ; or in case of a corporation:
262 bradbury's workmen's compensation law
Nebraska
that he is an officer, to wit, the of the corporation em-
ployer named in the above-entitled notice) ; that the above notice
was on the day of , 19. ., duly posted
about all the places where the workmen of the above-entitled em-
ployer were employed. (Or specify the particular places where
the notice was posted.)
Sworn to before me»this
day of 19.
FORM
Notice by Employe Withdrawing Election not to Be Bound by
Compensation Provision
(§13)
To
Employer.
Please take notice, that the undersigned hereby waives the notice
of election heretofore given not to be bound by Part II of the Act
prescribing the liability of an employer to make compensation for
injuries received by an employe- in the course of the employment
and hereby withdraws such election and consents to be bound by
the provisions of Part II of said Act.
Dated the day of , 19. . .
Employ^.
Address.
The affidavit of service of the above notice should be as
follows:
FORM
State of Nebraska
County of
. . , being duly swom, says that he is over the age
of years and that on the day of ,
19. ., at in the State of Nebraska, he served the
foregoing notice on .* by delivering to and leaving
with said a duplicate original thereof.
MANNER OF ELECTING TO OPERATE UNDER 263
Nevada
(// the employer is a corporation, proceed as above to the *, and then
as follows: by delivering to and leaving with a dupli-
cate original of said notice. Deponent further says that he knew
the said person so served to be an officer, to wit, the
of said , a corporation.)
(If the employer is a partnership service on one partner will doubt-
less be sufficient; in which case the affidavit of service should proceed
as follows from the * in the above form: by delivering to and leaving
with a duplicate original of said notice. Deponent
further says that he knew the persons so served to be one of the
partners of the firm of )
Sworn to before me this
day of ,19.
After the above notice is served on the employer a dupli-
cate thereof, with the above affidavit of service, attached
thereto, should be filed with the Insurance Commissioner.
§ 13. The waiver accomplished by the above notice does
not become effective until noon of the fifth day after the
filing of the notice, with proof of service, with the Insurance
Commissioner. § 13.
NEVADA
The Nevada Act is an elective State insurance plan. An
employer cannot adopt the compensation principle except
by paying the premiums to the State insurance fund.
The election to adopt the compensation principle, how-
ever, is a presumptive one. That is, all employers are pre-
sumed to have adopted the compensation principle if they
take no action at all. The act applies to all employers of
labor in the State of Nevada and their employes, except
domestic servants and farm laborers.
Before the election to adopt the compensation principle
becomes effective, so as to limit the employe to a demand
for compensation rather than damages, the employer must
264 bradbuky's workmen's compensation law
Nevada
keep himself out of default in making payments of premiums
to the Nevada Industrial Commission, §§ 6 and 37.
The principal sections of the act applicable to the manner
in which employers and employes are brought within the
terms thereof including forms of notices which are printed
in the statutes are as follows:
"§ 1. * * * (c) If an employer having the right under the
provisions of this Act to elect to reject the terms, conditions
and provisions thereof and in such case exercises the right in
the manner and form by this Act provided, such employer shall
not escape liability for personal injury sustained by an em-
ploye of such employer when the injury sustained arises out
of and in the usual course of the employment because:
"(1) The employe" assumed the risks inherent to or in-
cidental to or arising out of his or her employment; or the risks
arising from the failure of the employer to provide and main-
tain a reasonably safe place to work, or the risks arising from
the failure of the employer to furnish reasonably safe tools
or appliances, or because the employer exercised reasonable
care in selecting reasonably competent employes in the
business.
" (2) That the injury was caused by the negligence of a co-
employe1.
" (3) That the employe" was negligent unless and except it
shall appear that such negligence was wilful and with intent
to cause the injury; or the result of intoxication on the part
of the injured party.
"(4) In actions by an employe against an employer for
personal injury sustained arising out of and in the course of
the employment where the employer has elected to reject the
provisions of this Act, it shall be presumed that the injury to
the employe1 was the first result and growing out of the negli-
gence of the employer; and fttat such negligence was the proxi-
mate cause of the injury; and in such case the burden of proof
shall rest upon the employer to rebut the presumption of
negligence.
"§ 1 (c) 4. * * * Every such employer shall be conclu-
sively presumed to have elected to provide, secure and pay
MANNER OF ELECTING TO OPERATE UNDER 265
Nevada
compensation to employed for injuries sustained arising out of
and in the course of the employment according to the provisions
of this Act, unless and until notice in writing of an election to
the contrary shall have been given to the employe by posting
the same in some conspicuous place at the place where the
business is carried on, and also by filing notice with the Nevada
Industrial Commission with return thereon by affidavit show-
ing the date notice was posted as by this Act provided, sub-
stantially in the following form:
"Employers' Notice to Reject
"To the Employes of the Undersigned, and the Nevada In-
dustrial Commission:
"You and each of you are hereby notified that the under-
signed rejects the terms, conditions and provisions to provide,
secure and pay compensation to employes of the undersigned
for injuries received as provided in the Act of the Legislature
of the State of Nevada known as Nevada Industrial Insurance
Act, and elects to pay damages for personal injuries received
by such employes under the common law and the statutes of
this State modified by subdivisions one, two, three and four
of section one of the said Nevada Industrial Insurance Act
and Acts amendatory thereto.
Signed
"State of Nevada i
"County of.... jSS"
"The undersigned being duly sworn deposes and says that
a true, correct and verbatim copy of the foregoing notice was
on the day of , 191 . , posted at
(State fully place where posted.)
"Subscribed and sworn to before me by this
.day of ,191..
Notary Public.
"The employer shall keep such notice posted in some con-
spicuous place which shall apply to the employed subsequently
employed by the employer with the same force and effect and
266 BRADBURY S WORKMEN S COMPENSATION LAW
Nevada
to the same extent and in like manner as employes in the em-
ploy at the time the notice was given.
"Where the employer and employe1 have not given notice
of an election to reject the terms of this Act, every contract of
hire express or implied, shall be construed as an implied agree-
ment between them and a part of the contract on the part of
the employer to provide, secure and pay, and on the part of
the employe1 to accept compensation in the manner as by this
Act provided for all personal injuries sustained arising out of
and in the course of the employment."
Premiums are payable to the insurance fund up to the
time notice of rejection becomes effective. § 6.
"§ 3 (a). * * * all employes affected by this Act shall be
conclusively presumed to have elected to take compensation
in accordance with the terms, conditions and provisions of
this Act until notice in writing shall have been served upon
his employer; and also on the Nevada Industrial Commission,
with return thereon by affidavit showing the date upon which
notice was served upon the employer."
"§3 (6). In the event that such employe elects to re-
ject the terms, conditions and provisions of this Act, the
rights and remedies thereof shall not apply where an employe
brings an action or takes proceedings to recover damages or
compensation for injuries received growing out of and in the
course of his employment, except as otherwise provided by
this Act; and in such actions where the employe" has rejected
the terms of this Act the employer shall have the right to
plead and rely upon any and all defenses including those at
common law, and the rules and defenses of contributory neg-
ligence, assumption of risk and fellow servant shall apply and
be available to the employer unless otherwise provided in this
Act. Provided, however, that if an employe1 sustains an injury
as the result of the employer's failure to furnish or fails to
exercise reasonable care to keep or maintain any safety device
required by statute or rule, or violate any of the statutory pro-
visions or rules and regulations now or hereafter in force re-
lating to safety of employes, the doctrine of assumed risk in
MANNER OP ELECTING TO OPERATE UNDER 267
Nevada
such case growing out of the negligence of the employer shall
not apply or be available as defensive matter to such offending
party. The notice required to be given by an employ6 shall be
substantially in the following form:
"Employes' Notice to Reject Terms op this act
To and the Nevada Industrial Commission:
(Name of employer.)
"You and each of you are hereby notified that the under-
signed elects to reject the terms, conditions and provisions of
an Act for the payment of compensation as provided by the
Industrial Insurance Act of the State of Nevada and Acts
amendatory thereto, and elects to rely upon the common law
as modified by section three of the said Act for the right to
recover for personal injury which I may receive, if any, grow-
ing out of and arising from the employment while in line of
duty for my employer above named.
"Dated this day of , 19. . .
"Signed
"State of Nevada
"County of
"The undersigned being first duly sworn, deposes and says
that the written notice was on the .day of
, 19 . . , served on the within named employer
of the undersigned by delivering to a true, cor-
(Name of person served.)
rect and verbatim copy thereof.
ss..
"Subscribed and sworn (or affirmed) to before me by the
said this day of , 19. .:"
Notary Public.
"Section 4. (a) Where the employer or employe" has given
notice in compliance with this Act electing to reject the terms
thereof, such election shall be for one year from date of becom-
ing effective, and unless renewed within thirty days before the
termination of one year as herein provided, it shall be conclu-
sively presumed that such party has elected to waive the re-
jection made and come under the provision of this Act to
provide, secure and pay or accept, as the case may be, the
268 Bradbury's workmen's compensation law
New Hampshire
compensation herein provided until the contrary is shown by
the service of notice anew electing to reject the provisions of
this Act as herein provided;
" (b) When an employer or employe rejects the terms, con-
ditions or provisions of this Act, such party may at any time
thereafter elect to waive the same by giving notice in writing
in the same manner required of the party in electing to reject
the provisions of the Act, and which shall become effective
when filed with the Nevada Industrial Commission."
NEW HAMPSHIRE
The New Hampshire Act applies to "workmen engaged
in manual or mechanical labor" in the employments speci-
fied in Section 1 of the Act only.
It is an elective act and the election must be made by
important affirmative steps which the employer must take.
These consist in an application to the Commissioner of Labor
to either permit the employer to go under the Act upon
satisfying the Commissioner of the financial ability of the
employer to comply with the provisions of the Act, or by
filing a bond with the Commissioner in such form and amount
as the Commissioner may prescribe, conditioned on the dis-
charge by such employer of all liability incurred under the
Act. The provisions of § 3 of the Act, specifying how the
employer may elect to adopt the compensation principle,
are as follows:
"The provisions of section 2 of this act shall not apply to
any employer who shall have filed with the Commissioner of
Labor his declaration in writing that he accepts the provisions
of this Act as contained in the succeeding sections, and shall
have satisfied the Commissioner of Labor of his financial
ability to comply with its provision, or shall have filed with
the Commissioner of Labor a bond, in such form and amount
as the Commissioner may prescribe, conditioned on the dis-
charge by such employer of all liability incurred under this
MANNER OF ELECTING TO OPERATE UNDER 269
New Jersey
act. Such bond shall be enforced by the Commissioner of
Labor for the benefit of all persons to whom such employer
may become liable under this act in the same manner as pro-
bate bonds are enforced. The Commissioner may, from time
to time, order the filing of new bonds, when in his judgment
such bonds are necessary; and after thirty days from the
communication of such order to any employer, such employer
shall be subject to the provisions of section 2 of this act until
such order has been complied with. The employer may at
any time revoke his acceptance of the provisions of the suc-
ceeding sections of this act by filing with the Commissioner of
Labor a declaration to that effect, and by posting copies of
such declaration in conspicuous places about the place where
his workmen are employed. Any person aggrieved by any
decision of the Commissioner under this section may apply by
petition to any Justice of the Superior Court for a review of
such decision and said Justice on notice and hearing shall make
such order affirming, reversing or modifying such decision as
justice may require; and such order shall be final."
Employes are not required to make an election under the
New Hampshire Act until after the accident. They are not
bound to accept compensation in any event but may elect
to take compensation or sue for damages after the accident.
The only effect of the act of the employer in adopting the
compensation principle is to save him his common-law de-
fenses if he is engaged in any of the occupations specified in
§ 1 of the Act in case any of his employes elect to sue for
damages instead of accepting compensation. See § 2.
NEW JERSEY
The New Jersey Act applies to all employers and employes
"exclusive of casual employments." § II, 9; § III, 23.
All employers and employes are presumed to have elected
to adopt the compensation principle unless, as a part of the
contract of employment, there is an express statement in
270 BRADBURY S WORKMEN S COMPENSATION LAW
New Jersey
writing that either party rejects the compensation prin-
ciple, or unless either party gives notice in writing to the
other that they reject the provisions of § II of the Act.
§ II, 9. In the case of minors the notice can be given by or
to the parent or guardian of the minor. § II, 9. Where the
parties have once adopted the provisions of § II of the Act
relating to compensation their election may be terminated
by either party upon sixty days' notice in writing prior to
any accident. § II, 10.
By Chapter 368 of the Laws of 1911, which went into
effect on May 2nd, 1911, as supplemental to the compensa-
tion act proper, it was provided that "every contract of
hiring, verbal, written or implied from circumstances, now
in operation or made or implied prior to the time limited
for the Act to which this Act is a supplement to take effect,
shall, after this act takes effect, be presumed to continue
subject to the provisions of Section two of the Act to which
this Act is a supplement, unless either party shall, prior to
accident, in writing, notify the other party to such contract
that the provisions of Section two of the Act to which this
Act is a supplement are not intended to apply." The sup-
plemental Act took effect on July 4, 1911, at the same time
the compensation Act proper went into force. After the
principal Act was passed, apparently, it was discovered that
there was no provision relating to contracts of employment
which were already in force when the original Act went into
effect. To bring these contracts within the terms of the
compensation statute the supplemental Act was passed.
In the employments covered the New Jersey Act is one
of the most comprehensive of all the compensation statutes.
It covers all employes, including domestic servants and
farm laborers, and excepts "casual employments" only.
This exception, however, is much broader than that con-
tained in some of the compensation statutes in relation to
"casual" employes. The term originally came from Sec-
tion XIII of the British statute, which provides that the
MANNER OF ELECTING TO OPERATE UNDER 271
New Jersey
term "workman does not include * * * a person whose
employment is of a casual nature and who is employed other-
wise than for the purposes of the employer's trade or busi-
ness * * * ."
The British statute, therefore, by having two conditions
attached thereto, is much more restricted in its application
than is the New Jersey statute. Under the British Act a
casual employe1 who is employed for the purposes of the
employer's trade or business is covered under the compensa-
tion Act (Blyth v. Sewell, (1909), 2 B. W. C. C. 476), while
under the New Jersey Act such an employe" would not be
covered. But a carpenter employed to do repairs in the
private house of a person is not entitled to compensation
under the British Act. McCarthy v. Norcott (1908), 2 B. W.
C. C. 279. For discussion of this subject see ante, page 136.
" § II, 9. Employment subject to this act. Every contract of
hiring made subsequent to the time provided for this act to
take effect shall be presumed to have been made with refer-
ence to the provisions of section II of this act, and unless there
be as a part of such contract an express statement in writing,
prior to any accident, either in the contract itself or by written
notice from either party to the other, that the provisions of
section II of this act are not intended to apply, then it shall
be presumed that the parties have accepted the provisions of
section II of this act and have agreed to be bound thereby. In
the employment of minors, section II shall be presumed to
apply unless the notice be given by or to the parent or g'uardian
of the minor."
"§ II, 10. Termination of contract. The contract for the
operation of the provisions of section II of this act may be
terminated by either party upon sixty days' notice in writing
prior to any accident."
272 Bradbury's workmen's compensation law
New York
FORM
Notice by Employer or Employe of Rejection of Compensation
Provision of Statute
To
(Employer or Employe.)
Please take notice* that the undersigned hereby elects to re-
ject the provisions of Sec. II of Chap 95 of the Laws of 1911, as
amended by Chap. 174 of the Laws of 1913, and all acts amenda-
tory thereof or supplemental thereto, commonly known as the
Workmen's Compensation Act, and that the provisions of said
Sec. II are not intended to apply to the contract between your-
selves and the undersigned.
Dated the day of , 19. . .
(Employer or Employe.)
The above form may be used either by the employer or
the employe1 and must be served by the one signing the same
on the other. There is no provision in the statute for filing
this notice in any public office. Where the parties have
been working under the provisions of the compensation
portion of the Act therefore giving notice does not affect the
rights of the parties as to any aeeident which happens within
sixty days after the notice is given. In the case of minors
the foregoing notice may be given by the parent or guardian
of the minor. There does not seem to be any specific provi-
sion in.the statute for the withdrawal of the notice of rejec-
tion of the statute, but apparently this can be done at any
time as the parties are free to contract to pay and accept
compensation under the provisions of the statute. §§ II,
9 and 10.
NEW YORK
The New York Act brings within its terms by compulsion
all employers and employe's engaged in the hazardous em-
ployments specified in Article I, § 2. The statute specif-
manner Op electing to Operate under 273
New York
ically excludes from its operation farm laborers and domestic
servants. Article I, § 3, subd. 4. It also provides that
"'employment' includes employment only in a trade,
business or occupation carried on by the employer for
pecuniary gain." Article I, § 3, subd. 5. It includes em-
ployers and employes engaged in intrastate and also in inter-
state or foreign commerce only to the extent that their mutual
connection with intrastate work is clearly separable and
distinguishable from interstate or foreign commerce. It is
provided, further, that employers and employes working in
this State, subject to the approval and in the manner pro-
vided by the Commission, and, so far as not forbidden by any
act of Congress, may accept and become bound by the pro-
visions of the Compensation Act with the same effect as
provided for other employers and employe's. § 114.
While employers and employes in the occupations enu-
merated in § 2 of Article I are brought within the terms of
the Compensation Act by compulsion, nevertheless before
employers can limit their employe's to demands for compen-
sation at the rate specified in the statute, such employers
must take a further step and insure the compensation pay-
ments, as provided in Art. 3, § 50. Failure to effect such
insurance makes the employer liable to a penalty "for every
day during which such failure continues of one dollar for
every employe, to be recovered in an action brought by the
Commission." Art. 3, § 50, subd. 3. Moreover, a failure to
insure the compensation payments permits the employ^ to
elect, after the accident, whether to claim damages or com-
pensation. §§ 11 and 52.
The employer can comply with § 50 by insuring in the
State Fund, or in a stock liability insurance corporation, or
in a mutual association, or by furnishing satisfactory proof
to the Commission of his financial ability to pay such com-
pensation for himself, in which latter case the Commission
may, in its discretion, require the deposit with the Com-
mission of securities of the kind prescribed, in § 13 of thfc
18
274 Bradbury's workmen's compensation law
New York
Insurance Law, in an amount to be determined by the Com-
mission, to secure his liability to pay the compensation
provided.
Section 13 of the Insurance Law provides that deposits
may be made by domestic or foreign insurance corporations
in the stocks or bonds of the United States, or of this State,
or in the bonds ^f a county or incorporated City in this
State, authorized to be issued by the Legislature, not es-
timated above their par value or their current market value.
The same section also provides for deposits by insurance
corporations incorporated under the laws of other States,
which latter provision authorizes the deposit of State,
county and municipal bonds of other States when the laws
of such other States permit the deposit by New York cor-
porations of the bonds of New York State and its political
subdivisions. Apparently the latter part of this section
would not apply to deposits of securities in New York under
the Workmen's Compensation Act. Section 13 of the In-
surance Law contains the further provision:
"If the market value of any of the securities which have
.been deposited by any company shall decline below that at
which they were deposited, the Superintendent of Insurance
shall call upon the company to make a further deposit, so
that the market value of all securities deposited by any such
company shall be equal to the amount which it is required
to deposit."
Every employer who has complied with § 50 of the Com-
pensation Act "shall post and maintain in a conspicuous
place or places in and about his place or places of business
typewritten or printed notices in form prescribed by the
Commission, stating the fact that he has complied with all
the rules and regulations of the Commission after he has
secured the payment of compensation to his employe's and
their dependents in accordance with the provisions of this
Chapter." § 51. No penalty appears to be prescribed for
failure to post notices.
MANNER OF ELECTING TO OPERATE UNDER 275
Ohio
OHIO
The Ohio statute, effective from January 1, 1914, is a
compulsory state insurance law as to all public employes
and as to all private employers employing five or more
employes regularly in the same business or in or about the
same establishment. As to employers who have less than
five employe's employed regularly in the same business or
in or about the same establishment, the law is an elective
one. That is, those who employ fewer than five workmen,
may elect to adopt the compensation principle or riot, as they
please.
The Act also excludes from its operation policemen or
firemen in cities where policemen's and firemen's pension
funds are now or hereafter may be established and main-
tained by municipal authority under existing laws. § 1465-
61, subd. 1.
The Act also excludes from its operations person "whose
employment is but casual, or not in the usual course of trade,
business, profession or occupation of his employer." § 1465-
61, subd. 2.
An employer, to comply with the statute and bring him-
self within the compensation principle, must, in the month
of January in each year, prepare and mail to the State In-
dustrial Commission (prior to Sept. 1, 1913, the State Lia-
bility Board of Awards) at its main office in the City of
Columbus, Ohio, a statement containing the number of
employes employed during the preceding year from Janu-
ary 1st to December 31st inclusive, the number of employes
employed at each kind of employment, and the aggregate
amount of wages paid to such employes, which information
shall be furnished on a blank or blanks to be prepared by
the Commission and furnished to employers free of charge
upon request. § 1465-45. Such employer must also, in
the month of January, 1914, and semi-annually thereafter,
276 bradbury's workmen's compensation law
Ohio
pay into the State Insurance Fund the amount of premium
determined and fixed by the State Industrial Commission
and pay thereafter semi-annually such further sum or sums
in the State Insurance Fund as may be ascertained to be
due from him under the rules of the Board. § 1465-69. The
foregoing provisions as to payment, however, do not apply
to employers whe were subscribers to the State Insurance
Fund prior to January 1, 1914. Those who were such sub-
scribers are required to pay, from time to time, upon the
expiration of the respective periods for which payments
into the Fund have been made by them. § 1465-69.
Under certain circumstances employers may adopt the
compensation principle by assuming the liability therefor
personally, without joining the State insurance fund, under
conditions specified in § 1465-69. These provisions are as
follows:
" * * * And provided further, that such employers who
will abide by the rules of the state liability board of awards
and as may be of sufficient financial ability or credit to render
certain the payment of compensation to injured employed or
to the dependents of killed employes, and the furnishing of
medical, surgical, nursing and hospital attention and services
and medicines, and funeral expenses equal to or greater than
is provided for in this act, or such employers as maintain
benefit funds or departments or jointly with other employers
maintain mutual associations of such said financial ability
or credit, to which their employes are not required or per-
mitted directly or indirectly to contribute, providing for the
payment of such compensation and the furnishing of such
medical, surgical, nursing and hospital services and attention
and funeral expenses, may, upon a finding of such facts by
the state liability board of awards elect to pay individually or
from such benefit fund department or association such com-
pensation, and furnish such medical, surgical, nursing and
hospital services and attention and funeral expenses directly
to such injured or the dependents of such killed employed;
and the state liability board of awards may require such se-
MANNER OF ELECTING TO OPERATE UNDER 277
(Ohio
curity or bond from said employers as it may deem proper,
adequate and sufficient to compel, or secure to such injured
employes, or to the dependents of such employes as may be
killed, the payment of the compensation and expenses herein
provided for, which shall in no event be less than that paid or
furnished out of the state insurance fund, in similar cases, to
injured employes or to the dependents of killed employes,
whose employers contribute to said fund; and said board shall
make and publish rules and regulations governing the mode
and manner of making application and the nature and extent
of the proof required to justify such finding of facts by the
board as to permit such election by such employers, which
rules and regulations shall be general in their applications, one
of which rules shall provide that all employers electing di-
rectly to compensate their injured and the dependents of their
killed employes as hereinbefore provided, shall pay into the
state insurance fund such amount or amounts as are required
to be credited to the surplus in paragraph two of section seven
hereof.
"The state liability board of awards may at any time change
or modify its finding of facts herein provided for, if in its judg-
ment such action is necessary or desirable to secure or assure
a strict compliance with all the provisions of this act in refer-
ence to the payment of compensation and the furnishing of
medical, nurse, and hospital services and medicines and
funeral expenses to injured and the dependents of killed
employes." § 1465-69. (§ 22 of Act of 1913.) Employers
specified in the preceding section must post notices provided
for in § 1465-71. (§ 24 of the Act of 1913.)
From the above it will seem that employers who elect to
compensate their workmen directly or through mutual asso-
ciations of employers must still contribute a certain amount
to the State insurance fund. Paragraph 2 of § 7, which, as
the sections are renumbered, is subd. 2 of § 1465-54, provides
as follows:
'2. Ten per cent of the money that has heretofore been
paid into the state insurance fund and ten per cent of all that
278 bradbury's workman's compensation law
Ohio
may hereafter be paid into such fund shall be set aside for the
creation of a surplus until such surplus shall amount to the
sum of one hundred thousand dollars ($100,000.00) after
which time the sum of five per cent of all the money paid into
the state insurance fund shall be credited to such surplus
fund, until such time as, in the judgment of the board, such
surplus shall be sufficiently large to guarantee a state insur-
ance fund from year to year."
In an explanatory note to an edition of rules relating to
employers who elect to carry their own insurance, the Indus-
trial Commission of Ohio states that the insurance fund is in
such condition that the contributions to the surplus fund
by employers who elect to carry their own risks will be five
per centum for the present. Employers must make an ap-
plication for a rating the same as if they intended to join
the State fund, and the five per centum will be based on the
sum they would be compelled to pay to the State fund should
they elect to join that fund instead of carrying their own
risks. Blanks for this purpose will be furnished by the In-
dustrial Commission and these blanks must be used in all
cases. National and State banks which are required by law
to file statements with the Superintendent of Banks, and
railroad and public service corporations, which are required
to file statements with the Public Utilities Commission, are
exempted from filing bonds as a condition of carrying their
own risks. All others must file a bond in a sum not less than
$5,000, in any instance, or not less than the amount of the
semi-annual premium which such employer would pay to
the State insurance fund if he was a contributor, where such
amount exceeds the sum of $5,000.
All blanks for the administration of the act are furnished
by the Industrial Commission and employers are required
to use such blanks.
An employer who has fewer than five employes may join
the State Insurance Fund (although there is no penalty if
he does not do so), by paying premiums thereto and posting
MANNER OF ELECTING TO OPERATE UNDER 279
Oregon
in conspicuous places about his place of business type-
written or printed notices stating the fact that he has made
such payment. § 1465-71, § 24 of Act of 1913. Employers
having fewer than five employes who do join the State
Insurance Fund are, of course, relieved from other liability
regarding actions for damages by the workmen to the same
extent as employers having more than five employes.
§ 1465-71 ; § 24 of Act of 1913.
"Printed forms of all notices, applications, proofs, cer-
tificates, etc., necessary for perfecting any claim before the
Board will be furnished free of charge by the Board. Such
forms must be used in all cases." Rule 3 of the State Lia-
bility Board of Awards, now the Industrial Commission of
Ohio.
OREGON
The Oregon Act, while following somewhat on the lines
of that of Washington, is distinguished from the Statute of
the latter State by being an elective Statute. That is, em-
ployers may elect whether or not they will adopt the com-
pensation principle by joining a State insurance fund.
The election to adopt the compensation principle is pre-
sumed, unless some action is taken to the contrary, as to
all employers and employes specified in §§ 13 and 14 of the
Act. The steps which must be taken by employers and em-
ployes to reject the Act are contained in §§ 10, 11, 15, 16, 17
and 18, which provide as follows:
"§ 10. All persons, firms and corporations engaged as em-
ployers in any of the hazardous occupations hereafter speci-
fied shall be subject to the provisions of this act; provided,
however, that any such person, firm or corporation may be re-
lieved of certain of the obligations hereby imposed, and shall
lose the benefits hereby conferred by filing with the Commis-
sion written notice of an election not to be subject thereto in
280 bradbury's workmen's compensation law
Oregon
the manner hereinafter specified; provided, however, that where
an employer is engaged in a hazardous occupation, as herein-
after defined, and is also engaged in another occupation or
other occupations not so denned as hazardous, he shall not be
subject to this act as to such non-hazardous occupations, nor
shall his workmen wholly engaged in such non-hazardous
occupations be^subject thereto except by an election as au-
thorized by section 31 thereof. Provided, however, that em-
ployers and employes who are engaged in an occupation partly
hazardous and partly non-hazardous shall come within the
terms of this act the same as if said occupation were wholly
hazardous.
"§ 11. All workmen in the employ of persons, firms or cor-
porations who as employers are subject to this act shall also
be subject thereto; provided, however, that any such work-
men may be relieved of the obligations hereby imposed and
shall lose the benefits hereby conferred by giving to his em-
ployer written notice of an election not to be subject thereto
in the manner hereinafter specified. Any workman of the age
of 16 years and upwards shall himself exercise the election
hereby authorized. The right of election hereby authorized
shall be exercised on behalf of any workman under the age of
16 years by his parent or guardian. This act shall not apply
to workmen of less than the minimum age prescribed by law
for the employment of minors in the occupation in which such
workmen shall be engaged."
"§ 15. Any employer engaged in any of such hazardous
occupations who would otherwise be subject to this act,
may on or before June 15 next following the taking effect of
this act file with the Commission a statement in writing declar-
ing his election not to contribute to the Industrial Accident
Fund hereby created, and thereupon such employer shall be
relieved from all obligations to contribute thereto, and such
employer shall be entitled to none of the benefits of this act,
and shall be liable for injuries to or death of his workmen,
which shall be occasioned by his negligence, default or wrong-
ful act as if this act had not been passed, and in any action
brought against such an employer on account of an injury sus-
tained after June 30 next following the taking effect of this
MANNER OF ELECTING TO OPERATE UNDER 281
Oregon
act, it shall be no defense for such employer to show that such
injury was caused in whole or in part by the negligence of a
fellow servant of the injured workman, that the negligence of
the injured workman, other than in his wilful act, committed
for the purpose of sustaining the injury, contributed to the
accident, or that the injured workman had knowledge of the
danger or assumed the risk which resulted in his injury.
"Any person, firm or corporation hereafter engaging as an
employer in any of said hazardous occupations may hie a like
notice with said Commission within ten days after becoming
such employer and shall thereby and thereupon become re-
lieved from making contributions to said fund and shall be
liable to his workmen as in the case of existing employers so
electing and shall as in the case of such employers lose all
benefit of the defenses above described. From and after
June 30 next following the taking effect of this Act, all em-
ployers engaged in said hazardous occupations shall display
in a conspicuous manner about their works and in a sufficient
number of places reasonably to inform their workmen of the
fact, printed notices stating that they are or are not, as the
case may be, contributors to the fund. The failure of an
employer to display such notices shall be a misdemeanor.
"§ 16. All such employers who shall not as herein pro-
vided give to the Commission written notice of their election
not to contribute to said fund, shall be subject to all of the
provisions of this Act until and including the next succeeding
thirtieth day of June, and thereafter until and including
June 30 of each succeeding year, unless at least 60 days prior
to June 30 in some year written notice shall be given to said
Commission of an election to cease contributing to such fund,
whereupon from and after the succeeding first day of July the
status of the employer giving such notice shall be that result-
ing from the giving of the notice first above prescribed.
"§ 17. An employer who has so elected not to contribute
hereunder may at any time by giving to said Commission
30 days' written notice recall such election, and from and
after the expiration of such 30 days such employer shall
become and continue in all respects subject to this
Act.
282 bradbtjry's workmen's compensation law
Oregon
"§ 18. On or before June 30 next following the taking
effect of this Act any workman in the employ of an employer
subject to this Act may give notice in writing to his employer
of his election not to become subject to this Act, and any
workman entering the employment of such an employer after
such date may at such time give a like notice and thereupon
such workman shall be in no wise subject to the provisions
or entitled to any of the benefits hereof. Any workman in the
employ of an employer who shall have elected not to contribute
to the fund hereby created and who shall have recalled such
election, may within fifteen days after such recall by his em-
ployer has become effective, give notice in writing to his em-
ployer of his election not to become subject to this Act, and
thereupon such workman shall in no wise be subject to the
provisions or entitled to any of the benefits hereof. But if
such workman shall sustain an injury within Such period of
fifteen days and before he shall have elected not to become
subject to this Act, he shall have the option to be exercised
before suit brought, of taking the benefits hereby provided or
of proceeding against his employer as if this Act had not been
passed. Any workman who shall be in the employ of an em-
ployer who shall hereafter engage in any of said hazardous
occupations and who shall have' become subject to this Act,
may give notice in writing to his employer within fifteen days
after his employer shall have engaged in such hazardous occu-
pations, of his election not to become subject to this act, and
thereupon and thereafter such workman shall be in no wise
subject to the provisions or entitled to any of the benefits
hereof, but if such workman shall sustain an injury within
such period of 15 days and before he shall have elected not
to become subject to this act, he shall have the option, to be
exercised before suit brought, of taking the benefit hereby
provided or of proceeding against his employer as if this act
had not been passed. Any workman who has so elected not
to become subject to this act may at any time by giving to his
employer who is then subject to this act, 30 days' notice, recall
such election, and after expiration of such 30 days such work-
man shall become and continue in all respects subject to this
act.
MANNER OF ELECTING TO OPERATE UNDER 283
Oregon
" Any workman who has become subject to this act shall, if
he remains in the service of the same employer, continue sub-
ject to this act to and including the next succeeding thirtieth
day of June and thereafter until and including the thirtieth
day of June of each succeeding year unless at least 30 days
prior to June 30th in some year he shall give written notice
to his employer of his election not to be longer subject to this
act, whereupon and after the succeeding first day of July such
workman shall be no longer subject to this act."
- If an injury occurs to a workman while an employer is in
default in making any payment to the accident fund the em-
ployer is not entitled to any of the benefits of the act, but is
liable to the injured workman, or his dependents, to the same
extent that he would have been prior to the passage of the
act. In addition to this the Commission may, by action at
law, collect the amount due to the fund from such employer.
§24.
FORM
Notice by Employer of Rejection of Compensation Provision of
Statute
(§15)
To the State Industrial Accident Commission,
Portland, Oregon.
Please Take Notice that the undersigned employer hereby elects
not to contribute to the Industrial Accident Fund.
Dated the day of , 19. . .
Employer,
Address.
By the terms of § 15 of the Act the foregoing notice was
required to be filed on or before June 15th next following the
284 bradbury's workmen's compensation law
Oregon
taking effect of the act. By its terms the Act became effec-
tive on July 1, 1913. By reason of a referendum petition,
however, which was voted upon on November 4, 1913, the
Act becomes effective July 1, 1914.
Whenever an employer elects to contribute or not to
contribute to the State Accident Fund he must post a notice
in and about his works. See next form.
FORM
Notice by Employer to Be Posted about Works that he has or has
not Contributed to the Industrial Accident Fund
(§15)
To Employes;
Please Take Notice, that the undersigned are (not) contributors
to the industrial Accident Fund of the State of Oregon.
Dated the day of , 19. ..
Employer.
Employers are required to display in a conspicuous man-
ner about their works and in a sufficient number of places,
to notify their workmen of the fact, printed notices in sub-
stantially the above form. § 15.
FORM
Notice by Employer Recalling Election not to Contribute to In-
dustrial Accident Fund
(§17)
To the State Industrial Accident Commission,
Portland, Oregon.
Please Take Notice that the undersigned hereby recalls the no-
tice of election filed with the Commission on the
day of , 19 . . , electing not to contribute to the Indus-
trial Accident Fund and hereby elects to contribute to said fund.
Dated the day of , 19. . .
Employer,
MANNER OP ELECTING TO OPERATE UNDER 285
Oregon
An employer who has elected not to contribute to the
fund may, at any time, by giving notice to the Commission
of thirty days, recall such election, and after the expiration
of said thirty days the employer shall become and continue
in all respects subject to the Act. § 17.
When an employer has posted notices that he is not a con-
tributor to the Industrial Accident Fund and he subsequently
becomes a contributor, by giving the notice above, he should,
of course, change the notices which he has posted about his
works giving his employes notice that he is a contributor
to the fund. See second preceding form.
FORM
Notice by Employe of his Election not to Become
Subject to the Act
(§ 18)
To
Employer.
Please Take Notice that the undersigned hereby elects not to
become subject to the provisions of the Act effective July 1, 1913,
creating a State Industrial Accident Commission, and providing
an industrial accident fund.
Dated the day of , 19. . .
Employ^,
The notice above may be given within fifteen days after
any employer recalls his election not to contribute to the
accident fund. § 18. He may also give the same notice
within fifteen days after an employer becomes subject to the
Act. § 18. After an employ^ has once become subject to
the Act as to an employer who is also subject thereto, he
must give notice at least thirty days prior to the next suc-
ceeding June 30th in any year in order to withdraw from the
operation of the Act. § 18.
286 bradburt's workmen's compensation law
Rhode Island
FORM
Notice by Employe Recalling his Election not to Become Subject
to the Provisions of the Act
(§18)
To *
Employer.
Please Take Notice that the undersigned hereby withdraws his
election not to become subject to the provisions of the act effective
July 1st, 1913, creating a State Industrial Accident Commission,
and providing an industrial accident fund, and hereby elects to
become subject to the provisions of said Act.
Dated the day of , 19. ..
Employ*.
RHODE ISLAND
Employers and employes are divided into three classes
for the purpose of accepting or rejecting the compensation
principle.
As to employes engaged in domestic service and agri-
culture there does not appear to be any way in which the
employer can adopt the compensation principle in any event,
although this is not entirely clear.
Section 2 of the Act provides that it shall not apply to
actions to recover damages for personal injuries or for death
resulting from personal injuries sustained by employes
engaged in domestic service or agriculture.
Section 2 of the act provides that "the provisions of this
act shall not apply to employers who employ five or less
workmen or operatives regularity in the same business, but
such employers may, by complying' with the provisions of
§ 5 of this article become subject to the provisions of this
act."
The act primarily covers employers who employ more than
five workmen or -operatives regularly in the same business,
MANNER OF ELECTING TO OPERATE UNDER 287
Rhode Island
but specifically permits employers with five or less workmen
to adopt the compensation principle. There is no such per-
mission in relation to employes engaged in domestic service
or agriculture.
The Rhode Island statute is elective, but the election
must be by affirmative steps on the part of the employer.
These steps are specified in § 5 requiring the employer to
file with the Commissioner of Industrial Statistics a written
statement to the effect that he accepts the provisions of the
act and by giving "reasonable notice of such election to his
workmen, by posting and keeping continuously posted
copies of such statement in conspicuous places about the
place where his workmen are employed, the fifing of which
statement and the giving of which notice shall operate to
subject such employer to the provisions of this act and all
acts amendatory thereof for the term of one year from the
date of the filing of such statement, and thereafter, without
further act on his part, for successive terms of one year, each,
unless such employer shall, at least sixty days prior to the
expiration of such first or any succeeding year, file with said
Commissioner a notice in writing to the effect that he de-
sires to withdraw his election to be subject to the provisions
of this act shall give reasonable notice to his workmen as
above provided. Blank forms of election and withdrawal
as herein provided, shall be furnished by said Commissioner."
After the employer has elected to adopt the compensation
principle his employed are presumed to have elected to
accept compensation in lieu of all other rights until they
give notice to their employes and file such notice with the
Commissioner of Industrial Statistics as is provided in § 6
of the Act.
288 bradbury's workmen's compensation law
Rhode Island
FORM
State of Rhode Island
Notice by Employer of Acceptance of the Provisions of the
" Workmen's Compensation Act "
(§5)
191
To the Commissioner of Industrial Statistics,
State House, Providence, Rhode Island.
Notice is hereby given that I, we,
accept the provisions of Chapter 831 of the Public Laws of the
State of Rhode Island, entitled "An Act Relative to Payments to
Employees for Personal Injuries Received in the Course of their
Employment and to the Prevention of such Injuries."
Witness: * Name '.
P. 0. Address
The foregoing notice must be filed with the Commissioner
of Industrial Statistics and also kept continuously posted
in conspicuous places about the place where the workmen
are employed. § 5
FORM
State of Rhode Island
Notice by Employer of Withdrawal of Acceptance of the Provi-
sions of the "Workmen's Compensation Act "
(§5)
191
To the Commissioner of Industrial Statistics,
State House, Providence, Rhode Island.
Notice is hereby given that I , we
withdraw our previous election to be subject to the provisions of
Chapter 831 of the Public Laws of the State of Rhode Island, en-
1 If employer is a firm or corporation, give name of firm or corporation
and add name of duly authorized member of firm or officer of corporation.
MANNER OF ELECTING TO OPERATE UNDER 289
Rhode Island
titled "An Act Relative to Payments to Employees for Personal
Injuries Received in the Course of their Employment and to the
Prevention of such Injuries."
Witness: * Name
P.O. Address
The preceding notice must be filed at least sixty days
prior to the expiration of the first or any succeeding year
from the date that the employer filed the first notice of
election to accept the provisions of the workmen's com-
pensation act.
FORM
Notice by Workmen of Election not to Accept the Provisions of
the " Workmen's Compensation Act "
(§6)
To
Employer.
Notice is hereby given that the undersigned hereby rejects the
compensation provisions of Chapter 831 of the Public Law of the
State of Rhode Island, entitled "An Act relative to payments to
employes for personal injuries received in the course of their em-
ployment and to the prevention of such injuries," and claims his
right of action at common law.
Dated the day of , 19. . .
Employe.
Address.
The above notice must be delivered to the employer at
the time the contract of employment is entered into and a
copy thereof must be filed with the Commissioner of Indus-
trial Statistics at Providence, R. L, within ten days there-
after. If the contract of hire was made before the employer
1 If employer is a firm or corporation, give name of firm or corporation
and add name of duly authorized member of firm or officer of corporation.
19
290 BRADBURY'S workmen's COMPENSATION law
Texas
elected to operate under the compensation provisions of the
Act the notice must be given and filed within ten days after
the employer so elects. If the workman has been brought
under the terms of the act by failure to give such a notice,
either at the time of the employment or within ten days
after the employer has elected to adopt the compensation
principle, then the workman may give the notice at least
sixty days prior to the expiration of the first or any succeed-
ing year after such workman became subject to the pro-
visions of the Act. § 6. See the foregoing section for the
manner of giving notice when a workman is a minor.
TEXAS
The Texas Act follows the Massachusetts statute in many
particulars. It is elective, but the election to adopt the
compensation principle must be shown by some affirmative
action. The employer, to receive the benefits of the Act,
must either join the Texas Employes' Insurance Association
and secure a policy from that Association covering the
compensation liability under the Act, or he must secure a
policy covering the same liability from a stock or mutual
insurance company authorized to do business in the State of
Texas. The Act throughout refers to a "subscriber" as
being an employer who is entitled to the benefits of the Act,
and the word "subscriber" is defined in Part IV, § 1, as
follows:
" 'Subscriber ' shall mean any employer who has become a
member of the Association by paying a year's premium in
advance and receiving the receipts of the Association there-
for, provided, that the Association holds a license issued by
the Commissioner of Banking and Insurance, as provided for
in Part III, § 12 of this Act."
The same section provides that "'Association' shall mean
the 'Texas Employes Insurance Association,' or any other
insurance company authorized under this Act to insure the
MANNER OF ELECTING TO OPERATE UNDER 291
Texas
payment of compensation to injured employes, or to the
beneficiaries of deceased employes."
Section 2 of Part IV specifies the insurance companies
which are permitted to write such policies.
Certain employes are entirely excepted from the opera-
tions of the Act. Section 1 of Part IV provides that '"Em-
ployes' shall include every person in the service of another
under any contract of hire, expressed or implied, oral or
written, except one whose employment is but casual, or is
not in the usual course of the trade, business, profession or
occupation of the employer." It is further provided that
"the provisions of this Act shall not apply to actions to re-
cover damages for the personal injuries or for death resulting
from personal injuries sustained by domestic servants, farm
laborers, nor to the employes of any person, firm or corpora-
tion operating any railway as a common carrier, nor to
laborers engaged in working for a cotton gin, nor to employes
of any person, firm or corporation having in his or their
employ not more than five employe's." Part I, § 2.
There does not appear to be any way under the Texas
Act by which employers and employes in the excepted classes
may bring themselves within the terms of the Act.
Workmen do not have any election whatsoever as to
employers who have become subscribers. Workmen are
brought within the terms of the Act and their recoveries are
limited by the Act. There is no way in which workmen
can elect to stand on their common-law rights as to em-
ployers who have elected to adopt the compensation prin-
ciple. Part I, § 3.
292 brabbtjry's workmen's compensation law
Texas
FORM
INDUSTRIAL ACCIDENT BOARD
Austin, Texas
% Notice to Employes
As Required by the Employers' Liability (Workmen's Compensation)
Act, approved April 16th, 1913.
This will give you notice that le have provided for payment
to S£ injured employes under the above Act by insuring with
the Insurance Co.
Insert address of company here.
Date
Name of employer.
Address
City or town. Street and number.
Section 20 of Part 3 of the Texas Act provides that
"Every subscriber shall, after receiving a policy, give notice
in writing or print, to all persons with whom he is about to
enter into a contract of hire, that he has provided for pay-
ment of compensation for injuries by the association.'*
Section 19 of the same Part provides that "Every sub-
scriber shall, as soon as he secures a policy, give notice in
writing or print, to all persons under contract of hire with
him that he has provided for payment of compensation for
injuries with the association."
Rule 1 of the rules adopted by the Industrial Accident
Board provides that "If personal service is not made of the
notice as above required, said notice may be given in printed
or typewritten form by posting the same in six or more
conspicuous places where labor is employed, so that each and
every laborer may have an opportunity of seeing and reading
the same."
MANNER OF ELECTING TO OPERATE UNDER 293
Washington
The employer is also required to file a copy of the notice
with the Industrial Accident Board.
FORM
Notice that an Employer has Ceased to be a Subscriber
INDUSTRIAL ACCIDENT BOARD
Austin, Texas
Employers' Liability Act, approved April 16, 1913, provides
that when an employer ceases to be a subscriber, he shall, on or
before the day on which his policy expires, give notice thereof in
writing or print to all persons under contract of hire with him,
and he shall file a copy of said notice with the Industrial Accident
Board. In case of the renewal of the policy, no notice is required.
Notice
This is to give you notice that „e have ceased to be a sub-
scriber in any insurance company, under the Employers' Liability
Act, and that the policy formerly held by me expired
or is to expire
Name of employer.
Address
City or town, Street and number.
The preceding notice may be given by personal service or
it may be given in printed or typewritten form by posting
the same in six or more conspicuous places where labor is
employed, so that each and every laborer may have an op-
portunity of seeing and reading the same. See Rule 1 of the
Rules adopted by the Industrial Accident Board, ante, page
292.
WASHINGTON
The Washington Act is a compulsory State insurance plan
relating to certain extra-hazardous employments specified
in §§ 2 and 3. Other employers and employ6s join in adopt-
294 bradbury's workmen's compensation law
Washington
ing the compensation principle. § 19. The only way in
which employers can adopt the compensation principle is by
paying premiums to the State Insurance fund. To join the
Fund employers must pay into the State Treasury prior to
January 15th, each year, the sums specified in § 4 of the Act.
Should employers default in making these payments they
are subject to seribus penalties.
Certain employers engaged in interstate commerce may
elect to adopt the compensation principle under § 18 of the
Act. But under the opinion of the Attorney General of
Washington, rendered on Oct. 28, 1911, it was held that the
State Legislature was without power to prescribe an exclu-
sive remedy where an injured seaman had a right to relief in
admiralty. He held that the Act was limited in its compul-
sory operation to vessels operating upon the navigable waters
of the State of Washington, without any navigable outlet to
any other State or country.
Employers and employes engaged in work which is not
extra-hazardous may, by their joint election, file with the
Industrial Insurance Commission acceptance of the provi-
sions of the Act, and such acceptance, when approved by the
Department, subjects such employers and employes irrev-
ocably to the provisions of the Act to all intents and pur-
poses as if they had been originally included in its terms.
§ 19. Under the opinion of the Attorney General of Septem-
ber 16, 1911, non-hazardous industries or occupations were
segregated into a separate class.
FORM
Agreement by Employers and Employes in Non-hazardous Em-
ployments to Adopt the Compensation Act
(§19)
We, , employers, and , employes of
the above-named employers, hereby accept the provisions of
MANNER OF ELECTING TO OPERATE UNDER 295
West Virginia
Chapter 74 of the Laws of 1911, known as the Workmen's Compen-
sation Act and all amendments thereto, and submit ourselves ir-
revocably to the provisions of said act to all intents and purposes
as if we had been originally included in its terms, in conformity with
§ 19 of said act.
In Witness Whereof, we have hereunto set our hands and seals
this day of , 19 . . .
Employers.
Witnesses: .
Employes.
The above agreement is hereby approved this
day of , 19. ..
Industrial Insurance Commission.
By
WEST VIRGINIA
The West Virginia Act is an elective State insurance plan.
It is elective so far as employers-are concerned, but not as to
workmen. An employer may elect to adopt the compensa-
tion principle by notifying the Public Service Commission of
that fact (§11), and posting in conspicuous places about his
place of business typewritten or printed notices stating the
fact that he has made such election. § 23. The first notice to
the Public Service Commission, at Charleston, W. Va., may
be by letter stating that the employer desires to elect to pay
compensation to his employes. Thereupon the commission
will forward to him a blank to be filled out. This must be
completed and returned to the commission. The notice to
be posted may be substantially in the form given below.
The Act applies to workmen by compulsion when such work-
men have remained in the service of their employers, with
notice that such employers have elected to pay into the
workmen's compensation fund the premiums provided for
by the Act. §22.
The employer is protected only during such period as he is
296 bkadbuey's woekmen's compensation law
West Virginia
not in default in the payment of premiums to the State fund.
§22.
Whenever an employer is in default in payment of pre-
miums into the fund he is subject to actions for damages by
his employes. § 26. And in such actions he is deprived of
the right to set up the common-law defenses. § 26.
Employers and tmployes engaged in interstate commerce
or foreign commerce may, under certain circumstances, elect
to operate under the Act. § 52.
Ninety per cent of the premium to be paid to the State
fund is contributed by the employer and ten per cent by the
employe, and these premiums are to be paid monthly on or
about the 25th day of each month for the preceding month.
§ 24. Employers are empowered to deduct the employes'
share from their wages.
The Act does not apply to "employers or employes in
domestic or agricultural service;" nor to the other classes
specified in § 9.
FORM
Notice by Employer to Workmen of Election to Pay
Compensation
(§ 23) .
Notice to Employes:
Please take notice that the undersigned has elected to pay com-
pensation to his (its) workmen by paying premiums to the work-
men's compensation fund, pursuant to Chapter 000, acts of the Leg-
islature of West Virginia, 1913, providing for the administration of
a workmen's compensation fund and for other purposes, approved
February 22, 1913, and all acts amendatory thereof.
Dated the day of , 19. ..
Employer.
MANNER OF ELECTING TO OPERATE UNDER 297
Wisconsin
WISCONSIN
The Wisconsin act is elective. Prior to September 1, 1913,
it was necessary for the employer to take affirmative action
to indicate an election to adopt the compensation principle.
By the amendment of the law in 1913 (L. 1913, chap. 599),
it was provided that on and after September 1, 1913, "every
employer of four or more.employ<3s in a common employment
shall be deemed to have elected to accept the provisions of
§§ 2394r-3 to 2394-31, inclusive, unless prior to that date
such employer shall have filed with the Industrial Commis-
sion a notice in writing to the effect that he elects not to ac-
cept the provisions hereof." § 2394-5, subd. 2.
It is also provided in the same section that employers
commencing business subsequent to September 1, 1913, may
elect not to adopt the compensation principle at any time
prior to becoming an employer of four or more employes in
a common employment. Any employer may withdraw his
election to adopt the compensation principle at the expira-
tion of one year or at the expiration of any succeeding year
by at least sixty days prior to the expiration of such first or
any succeeding year filing in the office of the Industrial
Commission a notice in writing to the effect that he desires
to withdraw his election to be subject to the compensation
provisions of the statute. § 2394-5.
The Industrial Commission of Wisconsin rules that com-
mon employment means such employment as makes the
employes fellow servants under the common law.
An employ 6 may eleGt to reject compensation by filing
the notice specified in § 2394-8 (2).
The Attorney General has ruled that an employ^ has
thirty days after an employer accepts the compensation
principle within which to file notice of rejection and this
includes such employers as were brought within the terms
298 bradbury's workmen's compensation law
Wisconsin
of the act by the presumptive election in the amendment
which became effective September 1, 1913.
Under § 2394-3, as amended by § 2394-8 (3) in 1913,
railway trainmen can be brought within the terms of the
act only by the voluntary acceptance thereof by both em-
ployers and employes. Other employes of railroads are
brought within thfe terms of the act the same as those of
private employers generally.
When employes and employers are both engaged in inter-
state commerce at the time of the accident the Act does
not apply. § 2394-8 (3).
A notice filed by a railway company, which states that it
accepts the provisions of the Workmen's Compensation Act,
and that the nature of the employment of its men at its
office and shop work is sufficient to include all employes of
the railway company if the statute authorizes their in-
clusion. Minneapolis, St. Paul & S. S. M. Ry. Co. v. In-
dustrial Commission of Wisconsin, 000 Wis. 000; 141 N. W.
Rep. 1119.
FORM
Employer's Election not to Become Subject to Compensation
Act
(§ 2394-6)
Industrial Commission,
Madison, Wis.
Take notice that the undersigned employer of labor in Wiscon-
sin hereby elects not to accept the provisions of the Workmen's
Compensation Act.
Dated at this day of , 19. ..
By'.'.'.'"!!!!!"""!"
P. O. Address.
MANNER OF ELECTING TO OPERATE UNDER 299
Wisconsin
FORM
Employer's Notice of Withdrawal from Operation under Work-
men's Compensation Act
(| 2394-6)
Industrial Commission,
Madison, Wis.
Take notice that the undersigned employer of labor in Wisconsin
hereby withdraws his (her) (its) election to become subject to the
provisions of the Workmen's Compensation Act of Wisconsin.
Dated at this day of , 19. .
By
P. O. Address.
The above notice to be effective, must be filed in the
office of the Industrial Commission at least sixty days prior
to the expiration of one year from the date when the em-
ployer becomes subject to the provisions of the act, or sixty
days prior to the expiration of any succeeding year.
FORM
Notice of Employe upon Entering Employment that he Elects
not to be Subject to the Workmen's Compensation Act
(§ 2394-8-2)
To
(Write name of employer plainly on above line.)
(Write address of employer plainly on above line }
You will take notice that being about to enter your employ, I
elect not to be subject to the provisions of the Workmen's Com-
pensation Act of Wisconsin.
(Employe)
(Address)
Dated at
this day of ,19...
CHAPTER V
ELECTION OF REMEDY BY WORKMEN AFTER
INJURY
Page
ARTICLE A— Introduction 300
In general; right to elect irrespective of statutory pro-
vision 300
ARTICLE B— Specific Provisions of Various Statutes 305
Page
Arizona 305 Nevada 317
California 305 New Hampshire 319
Connecticut 307 New Jersey 320
Illinois 310 New York 321
Iowa 311 Ohio 322
Kansas 312 Oregon 324
Maryland 313 Rhode Island '. . . . 326
Massachusetts 313 Texas 326
Michigan 315 Washington 327
Minnesota 316 West Virginia 329
Nebraska 316 Wisconsin 330
ARTICLE A— INTRODUCTION
1. In general; right to elect irrespective of statutory pro-
vision.1
A very few of the compensation statutes give the employe
an absolute right, after an accident has happened, to de-
1 Of course there is a clear distinction between an election of remedies
by an employe1 after an accident has happened, and the election which both
the employer and the employe1 may exercise under some of the statutes as
to whether they, or either of them, will come within the provisions of the
compensation features of the statute at all. In the text of the present
chapter is considered merely the election which the employe1 may make
after the accident, presuming, of course, that both employer and employe1
300
ELECTION OF REMEDY BY WORKMEN AFTER INJURY 301
In general; right to elect irrespective of statutory provision
termine whether he will demand "damages" or "compensa-
tion." Some of them give him a right to pursue both remedies
at once; but in such cases an actual recovery under one
form of action usually precludes further proceedings in the
other. In several of the acts "damages" may be recovered
in cases where an employer is guilty of a violation of a safety
statute, or a wilful act, or of gross negligence, and injury
is caused thereby. Some of them go so far as to permit the
recovery of "double damages" or "double compensation",
when the injury is caused by a disregard of a statute relating
to safety devices. A considerable percentage of the laws
provide that where the employer and the employe are both
bound by the compensation provisions of the statute that the
right to " compensation " shall be exclusive of all other rights.
In some instances a workman while employed in his
master's business is injured through the wrong of a third
party. Suppose, for example, a driver of A's team is injured
by the negligence of B, who is operating an automobile.
The driver can recover compensation from A. He also has
a cause of action against B, for damages. Usually, under
the various statutes, he may elect which remedy to pursue.
Speaking generally, the employe can have only one recovery
of damages or compensation, for a single injury. But under
a set of circumstances such as described above, where the
employe recovers compensation from his employer, the
latter usually is subrogated to the rights of the workman as
against the third person who caused the injury. When the
damages recovered are greater than the statutory amount
allowed for compensation the balance usually goes to the
employed
Just how far the doctrine of estoppel by election, or the
rule that a release of one joint tort feasor releases all, applies
to the compensation statutes, is left in considerable doubt.
have signified their intentions, in proper legal form, to accept and be bound
by the features of a particular act relating to compensation, or that the
statute is compulsory.
302 bradbury's workmen's compensation law
In general; right to elect irrespective of statutory provision
Some of the acts contain specific provisions on one or both
of these subjects, while others are entirely silent on both.
When the statute gives the employe" the right to elect between
one of two remedies, as, for example, to claim "damages"
or "compensation," from his employer, an^s silent as to the
effect of the election, doubtless the general doctrine of estop-
pel by election would apply. That is, if, in such a case the
employe1 should sue for "damages" and should fail he would
be estopped from claiming "compensation." Vice versa if
he should claim "compensation" he would be estopped from
suing for damages.
A more serious question arises in relation to claims from
injuries caused by third persons. In many such cases the
employer would be liable for compensation, although he had
nothing to do with the accident. Thus in the case cited of
a driver who is injured on the public highway, by the negli-
gence of another person, the employer of the driver must
pay compensation even though a cause of action may exist
in favor of the driver against the person causing the injury.
In the absence of special statutory provision what would be
the effect if the driver should sue such third person and re-
cover judgment which he subsequently satisfied also giving a
general release to the person who caused the injury? The
author has entertained the opinion that in such a case the
employer would be discharged from liability for "compensa-
tion " on account of that injury. In two cases in New Jersey,
however, it was held to the contrary, prior to the amendment
of the New Jersey Act in 1913, covering this particular point.
Perlsburg v. Midler (Essex Common Pleas), 35 N. J. Law J.
202; Houghton v. W. G. Root Const. Co. (Mercer Common
Pleas), 35 N. J. Law J. 332. These cases proceeded on the
theory that the employer and the person who caused the
injury were not joint tort feasors, in that the claim against
the employer did not rest in tort at all, but arose out of an
implied contract. This construction was given under the
New Jersey Act which provides, in effect, that the employer
Election op remedy by workmen after injury 303
In general; right to elect irrespective of statutory provision
and employ^ are presumed to have contracted, the one to
pay and the other to accept compensation. Many of the
statutes cover the point specifically, but whefe they do not
and the act is "elective," it would seem that the New Jersey
decisions, cited above, would apply.
Ordinarily where a person sues two or more defendants
separately for the same wrong and gets separate judgments
against them, he can enforce either one of the judgments, as
he pleases, but not both of them. Rex v. Coney Island and
Brooklyn R. R. Co., 2 Bradbury's PI. & Pr. R. 296. Under
the New Jersey cases cited above probably this doctrine
would not apply under the compensation acts, where the
injury was caused by a third person.
By the terms of the British Compensation Act if a work-
man sues at common law under the circumstances specified
in § I, 2, b, of the Act, and is defeated he can ask the same
court to assess compensation. Apart from this special
provision the doctrine of estoppel by election applies. Thus
where a claim for compensation was refused by the arbi-
trator under the Compensation Act of 1897, it was held that
this was a bar to a subsequent action at common law for dam-
ages. Burton v. Chapel Coal Company (1909), 46 Scotch
L. R. 375; 2 B. W. C. C. 120. Where a workman had re-
covered compensation from his employers, it was held that
he was not entitled to maintain an action against a person
other than the employer, the negligence of whose servant
had caused the injury for which complaint was made, even
though the workman would have been entitled to a larger
sum by way of damages than he had received by way of
compensation. Mahomed v. Maunsell (1907), 1 B. W. C. C.
269. Where a workman who had received an injury on the
premises of a person other than those of his employer and
had entered into an agreement with the owner of the pre-
mises to satisfy any claim he had against them, in con-
sideration of such person paying his wages during incapacity,
for a period not to exceed six months, together with his
304 bradbury's workmen's compensation law
In general; right to elect irrespective of statutory provision
doctor's bill, it was held that this was a recovery of damages
which precluded the workman from claiming compensation
from his employer, as the recovery of such damages need not
necessarily be by legal proceedings. Page v. Burtwell (1908),
1 B. W. C. C. 267.
A workman employed by contractors was knocked down
and injured by a* London County Council tramcar. He
received payments from his employers and signed receipts
which stated that the money was paid as compensation
under the Act. Subsequently he repaid these moneys and
commenced an action against the London County Council.
He then said that he had not read or understood the papers
which he had signed. The County Court judge nonsuited
the workman on the ground that he was estopped by the
receipts. It was held, on appeal in the King's Bench Division
that while, prima facie, the man was bound by the receipts
which he signed, his real intention in signing must be con-
sidered. If he did not read or understand the document
there might not be an estoppel. It was held that the case
should have been left to the jury, for the determination of
the question of fact whether the man understood the nature
and effect of the receipts when he signed them. Huckle v.
The London County Council (1910), 3 B. W. C. C. 536.
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. Ford v. Wren &
Dunham (1903), 5.W. C. C. 48; Stephens v. Dudbridge Iron-
works Co. (1904), 6 W. C. C. 48. In the last-mentioned
case relatives of the infant had made claim for compensa-
tion and this was paid to the infant, who signed a release
in full. It was held that this did not debar the infant from
maintaining a common-law action for damages.
All these decisions, however, arose under special provi-
sions of the British statute and are not safe precedents to
follow in applying general doctrines established irrespective
of statute law.
ELECTION OP REMEDY BY WORKMEN AFTER INJURY 305
■^ ' .
California
ARTICLE B— SPECIFIC PROVISIONS OF VARIOUS STATUTES
ARIZONA
Under § 68 of the Arizona Act the absolute right is given
to the workman to elect, after the accident, to take either
the compensation provided in the statute or to sue for
damages at common law. This right is secured in Ari-
zona by constitutional provision. See Chapter II, sub title
Arizona.
CALIFORNIA
If both employer and employe- have adopted the compen-
sation feature of the statute the remedy under the Compen-
sation Act is exclusive in all cases, with one exception. § 12
(a). This exception is contained in § 12, subd. (&) and (c),
of the Act of 1913 which read as follows:
"(b) Where such conditions of compensation exist, the
right to recover such compensation pursuant to the provisions
of this act, shall be the exclusive remedy against the employer
for the injury or death, except that when the injury was
caused by the employer's gross negligence or wilful miscon-
duct and such act or failure to act causing such injury was
the personal act or failure to act on the part of the employer
himself, or if the employer be a partnership on the part of one
of the partners, or if a corporation, on the part of an elective
officer or officers thereof, and such act or failure to act indi-
cated a wilful disregard of the life, limb, or bodily safety of
employed, any such injured employe1 may, at his option, either
claim compensation under this act or maintain an action at
law for damages.
" (c) In all other cases where the conditions of compensa-
tion do not concur, the liability of the employer shall be the
same as if this act had not been passed." ,
20
306 BRADBURY'S WORKMEN'S COMPENSATION LAW
x California
It has been held by the California Industrial Accident
Board that in such an action the employer does not have
the right to interpose the usual common-law defenses. The
Roseberry Act, of 1911, abolished the defenses of assump-
tion of risk and negligence of fellow servant and greatly
modified the defense of contributory negligence, as to all
employers who did not elect to operate under that Act.
There is nothing in the Act of 1913 which abolishes or mod-
ifies the common-law defenses. The repealing clause in
the Act of 1913 is contained in § 90, which provides: "All
acts or parts of acts inconsistent with this Act are hereby
repealed." As there is nothing in the Act of 1913 about the
abolition of the common-law defenses that part of the Act
of 1913 is not inconsistent with the Act of 1911. On the
other hand, much of the Act of 1913 is, of course, very in-
consistent with the Roseberry Act of 1911. The Roseberry
Act contained, in § 3, provisions very similar to those found
in § 12 (6), of the Act of 1913, quoted above, and provided
further that in actions brought under that section the pre-
vious provisions, modifying the common-law defenses,
should apply. The Board holds that by reading the two
Acts together, that is, the Act of 1913 and such portions of
the Roseberry Act of 1911 as are not inconsistent there-
with, and are thus not repealed, the employer is still subject,
to the provisions of the Roseberry Act modifying the
common-law defenses in actions under § 12 (6) of the
Act of 1913. The Insurance Commissioner has ruled that
the increased liability under § 12 (b) is not insurable either
by the State fund or by casualty companies* See § 35 (6).
When the injury is due to the wrongful act of a third
party, if the employe elects to claim compensation from his
employer, any cause of action in favor of the employe and
against such third party is, by the fact of making the claim
for compensation, automatically assigned to the employer,
who may sue thereon in his own name. § 31. If the re-
covery is greater than the liability for compensation the
ELECTION OF REMEDY BY WORKMEN AFTER INJURY 307
Connecticut
balance is held in trust for the workman, or his dependents,
as the case may be. § 31.
CONNECTICUT
If both employer and employe" are subject to the compensa-
tion feature of the statute the right of the employe" to claim
compensation measures the complete liability of the employer
to the employed Part B, § 1, quoted below.
If the injury is due to the wrongful act of a third person
the employe has the option to sue such third person or claim
compensation from his employer. § 6. Should the employe,
in such a case, claim compensation the right of action against
the third person goes to the employer by subrogation. § 6.
An amount recovered in excess of the liability for compensa-
tion goes to the employe. § 6.
Part B, § 1, provides:
"Part B, § 1. Acceptance of Part B. When any persons in
the mutual relation of employer and employee shall have ac-
cepted part B of this act, the employer shall not be liable to
any action for damages on account of personal injury sus-
tained by an employee arising out of and in the course of his
employment or on account of death resulting from injury so
sustained; but the employer shall -pay compensation on ac-
count of such injury in accordance with the scale hereinafter
provided, except that no compensation shall be paid when the
injury shall have been caused by the wilful and serious mis-
conduct of the injured employee or by his intoxication. The
acceptance of part B of this act by employers and employees
shall be understood to include the mutual renunciation and
waiver of all rights and claims arising out of injuries sustained
in the course of employment as aforesaid, other than rights
and claims given by part B of this act, including the right of
jury trial on all questions affecting compensation and all right
of appeal from the compensation commissioners except as
hereinafter established."
30$ bradbury's workmen's compensation law
Connecticut
It should be noted that the employer is not relieved of
liability for common-law damages until he has complied
with Part B, § 30, in relation to insuring the payment of
compensation claims, or to securing permission from the
Compensation Commission x to carry the risk without in-
surance. Part B, § 42. The Attorney General has held that
all employes, including those specified in § 2 of Part A, are
subject to the compensation features of the statute. There-
fore if an employer having regularly less than five employe's
or who employs casual employes, or outworkers, desires to
avoid suits for damages for injuries due to negligence he must
not only adopt the compensation feature of the statute, but
he must also comply with the provisions of Part B, § 30.
The election to adopt the compensation provision is pre-
sumed, in the absence of affirmative action to the contrary.
Part B, §§ 2 and 3. But unless the employer goes further and
complies with § 30 of Part B he shall be liable "as if he had not
accepted" the compensation feature of the statute. Part B,
§ 42. In some instances it will be practically impossible
for an employer to adopt the compensation principle as to
particular employes. For example, if a person should employ
a porter to carry his grip to the station the porter would be a
casual employed Manifestly it would be impossible for the
employer to comply with all the provisions of the Statute as
to this porter, unless he can secure a blanket policy of in-
surance in advance covering all such cases, or secures the
approval of the compensation commission as to his financial
ability to carry such risks. The result is that as to such
empIoy6s the employer will be liable to common-law damages
in an action based on negligence, or, probably at the election
of the employe, to a claim for compensation. But the
common-law defenses in such an action are not abolished.
Part A, §§ 1 and 2. The only way the employer can avoid
xThe Attorney General has held that the word "Commissioner" in
the first sentence of § 30 means the Compensation Commissioner.
ELECTION OF REMEDY BY WORKMEN AFTER INJURY 309
Connecticut
this double liability as to casual employes is to specify in
the contract of employment that Part B of the Compensa-
tion Act shall not apply. It is not entirely clear that an
employer who adopts the compensation principle and then
fails to comply with § 30 is liable to the optional remedy of
the employed Acceptance of the compensation principle is
presumed. Part B, § 2. The last-mentioned section does
not say anything about what the effect will be if the em-
ployer fails to comply with Part B, § 30. Then Part B, § 42,
provides that if an employer fails to comply with Part B
§ 30 he "shall thereby forfeit all benefits hereunder and shall
be liable as if he had not accepted the same." Of course,
the employer's liability if "he had not accepted the same"
would be that he would be liable for common-law damages
only, and in such an action he would not have the benefit
of the common-law defenses. Apparently the statute is
somewhat inconsistent, but nowhere is the conclusive pre-
sumption of acceptance found in Part B, § 2, absolutely
destroyed, except by inference. The probabilities are, there-
fore, that the employe has the double or optional remedy,
in cases where the employer does not take steps to reject
the Act and then fails to comply with § 30.
Probably few employers will find it expedient to adopt the
compensation feature of the act in relation to "outworkers"
specified in Part A, § 2, and defined in Part B, § 43, as persons
"to whom articles or materials are given to be treated in any
way on premises not under the control or management of the
person who gave them out." The cases are very rare in
which such an outworker could sustain an action for damages
based on negligence, against the employer, although they are
not impossible of occurrence.
An injury might happen while such an outworker was on
the employer's premises to secure the materials upon which
the work was to be performed. In such a case an employer
who had not adopted the compensation feature of the
statute as to such an employ^ would be liable in an action for
310 bradbury's workmen's compensation law
Illinois
damages based on negligence, but he would not be deprived
of his common-law defenses. Part 1, §§ 1 and 2. As to out-
workers the employer must also either specify in the contract
of employment or give notice (which takes effect thirty days
after it is given) that Part B of the Compensation Act is no,t
adopted, or he will be liable for compensation or to an action
for damages, at the option of the employed
Special attention should be directed to the drastic provi-
sions of § 42 imposing a fine of $100 on employers who have
adopted the compensation principle and then fail to comply
with the provisions of Part B other than § 30.
ILLINOIS
The Illinois Act as amended in 1913 makes the right to
"compensation" exclusive in all cases where employers and
employes have adopted the compensation feature of the
statute and have insured compensation payments.
The provision of § 3 of the former Act giving the employe"
the right to elect after the accident to sue for common-law
damages if the injury was caused by the "intentional omis-
sion of the employer to comply with statutory safety regula-
tions," has been repealed in the Act of 1913.
" § 6. No common-law or statutory right to recover dam-
ages for injury or death sustained by any employ^ while en-
gaged in the line of his duty as such employ^ other than the
compensation herein provided shall be available to any em-
ploye who is covered by the provisions of this Act, to any one
wholly or partially dependent upon him, the legal representa-
tives of his estate, or any one otherwise entitled to recover
damages for such injury."
See also § 11.
When an injury is caused by the act of a third person the
right of the employe" to recover compensation or damages
against such third person is retained. § 29. Whether the
employe" recovers directly against such third person or
ELECTION OF REMEDY BY WORKMEN AFTER INJURY 311
Iowa
through an employer from whom he has claimed compensa-
tion, the employer is entitled to receive from such third per-
son the amount of the employer's liability for compensation,
and the balance of the recovery goes to the employe. § 29.
An important change was made in the Act of 1913, which
gives the Industrial Board, therein created, power to require
employers to assure compensation payments by taking
insurance, filing a bond or other security, or demonstrating
their financial ability to carry the risk themselves. § 26 (a).
If an employer fails to obey an order of the Board in this
respect an employe has the right to elect whether he will
claim compensation or sue for damages, as to accidents which
happen while the employer is in default. § 26 (6).
IOWA
The Act provides:
i
"§ 3. (a) The rights and remedies provided in this act for
an employe on account of an injury shall be exclusive of all
other rights and remedies of such employe, his personal or
legal representatives, dependents or next of kin, at common
law or otherwise on account of such injury; * * *"
Thus if an employer has taken all the steps required by the
Act to adopt the compensation principle, the only remedy
of an employe1 who has also come under the Act, as against
the employer is to demand compensation. Employers are
brought under the Act by presumption. § 1. That is, if
they do nothing they are presumed to have adopted the
compensation provision of the statute. But before em-
ployers can defeat the right of a workman to elect, after the
accident, to sue for common-law damages, without the
common-law defenses being available to the employer, the
employer must go a step further. He must either insure
against his liability for compensation, under § 42, or comply
with § 50, in furnishing proof to the Insurance Department
312 bradbury's workmen's compensation law
Kansas
which is satisfactory to both the Insurance Department and
the Iowa Industrial Commissioner, of the employer's sol-
vency and financial ability to pay the compensation benefits
provided by the Act.
If the injury is due to the Act of a third person the em-
ploye" may take proceedings against that person to recover
damages and also against the employer to recover compensa-
tion. But the amount payable as compensation will be re-
duced by the sum recovered as damages. § 7.
KANSAS
Where both employer and employe have adopted the
compensation principle the sole remedy of the workman, as
to his employer, is to claim compensation. The language
of the Act is not very specific on this subject, but the intent
seems to be clear.
Section 1 of the Act provides:
"If in any employment to which this act applies, personal
injury by accident arising out of and in the course of employ-
ment is caused to a workman, his employer shall, subject as
hereinafter mentioned, be liable to pay compensation to the
workman in accordance with this act. Save as herein provided,
no such employer shall be liable for any injury for which com-
pensation is recoverable under this act; * * *"
An additional remedy is given to an employe in cases of
wilful or gross negligence on the part of the employer, under
§ 47, but this seems to apply only when the employer has
adopted the compensation principle and the workman has
rejected the compensation provision of the statute.
If the injury is due to the act of a third person the work-
man may take proceedings against such third person to
recover "damages" and against his employer to recover
"compensation" for the same injury, "but he shall not be
entitled to recover both damages and compensation." § 5.
ELECTION OF REMEDY BY WORKMEN AFTER INJURY 313
Massachusetts
If the workman recovers compensation the employer is
subrogated to the rights of the workman to recover damages
from the third person. § 5.
MARYLAND
The claim for compensation is the exclusive remedy of the
employe" when both employer and employe have adopted
the compensation principle, except in the cases specified in
§ 15 which provides as follows:
"A contract of insurance, in pursuance of the terms of this
act, shall not relieve the employer from liability for any acci-
dent directly due to his failure to supply any safeguard re-
quired to be provided for the protection of employes, by or
pursuant to any statute or ordinance, or any regulation
under any statute or ordinance, unless it shall have been im-
possible to comply with such requirement by the time the
accident happened, or unless the enforcement thereof has been
suspended on order of the court of competent jurisdiction."
MASSACHUSETTS
When both employer and employe have duly adopted the
compensation provision of the statute the sole remedy of the
employ^ is to claim compensation. Part I, § 5. If the em-
ploy^ is injured by reason of the serious and wilful miscon-
duct of the employer "or of any person regularly entrusted
with and exercising the power of superintendence," the
amount of compensation is doubled. Part II, § 3.
See also Part V, § 1, to the effect that the filing of a claim
for compensation or submitting a question to arbitration
constitutes a waiver of all claims or demands at law, if any.
"Where the injury for which compensation is payable under
this act was caused under circumstances creating a legal
liability in some person other than the subscriber to pay dam-
314 bradbury's workmen's compensation law
Massachusetts
ages in respect thereof, the employe" may at his option proceed
either at law against that person to recover damages, or against
the association for compensation under this act, but not
against both, and if compensation be paid under this act, the
association may enforce in the name of the employe, or in its
own name and for its own benefit, the liability of such other
person, and in case the association recovers a sum greater than
that paid by the" association to the employe four-fifths of the
excess shall be paid over to the employe." Part III, § 15,
as am'd by L. 1913, c. 448, § 1.
"The provisions of sections one hundred and twenty-seven
to one hundred and thirty-five, inclusive, and of one hundred
and forty-one to one hundred and forty-three, inclusive, of
chapter five hundred and fourteen of the acts of the year
nineteen hundred and nine, and of any acts in amendment
thereof, shall not apply to employes of a subscriber while this
act is in effect." Part I, § 4.
The statute referred to in § 4 above is an employers' lia-
bility act containing the provisions usually found in those
statutes prior to the enactment of workmen's compensation
laws. In this instance the act to which reference is made
contains the provisions permitting recovery in case of in-
juries causing death. If, therefore, an employer, in Massa-
chusetts, has exercised his election to embrace the compensa-
tion principle and an employe of such employer has given
the proper notice that he refuses to accept compensation,
the dependents of such an employ^ cannot recover from the
employer any sum whatsoever because of the death of such
employed See Opinion of Justices, 209 Mass. 607; 96 N. E.
Rep. 308; 1 N. C. C. A. 557.
A letter to an employer claiming damages for an injury
was held not to be an election which precluded the employ^
from claiming compensation under the Act. McGaffigan v.
Fidelity & Deposit Co. of Maryland, Massachusetts Indus-
trial Accident Board.
ELECTION OF REMEDY BY WORKMEN AFTER INJURY 315
Michigan
MICHIGAN
Section 4 of Part I of the Act provides:
"Any employer who has elected, with the approval of the
industrial accident board hereinafter created, to pay compen-
sation as hereinafter provided, shall not be subject to the pro-
visions of section one; nor shall such employer be subject to
any other liability whatsoever, save as herein provided for the
death of or personal injury to any employe1, for which death or
injury compensation is recoverable under this act, except as
to employes who have elected in the manner hereinafter pro-
vided not to become subject to the provisions of this act."
Part I, § 4.
If the employer has joined the State Insurance Fund and
is in default in the payment of any "contribution, premium
or assessment" the employe1 may elect, after the accident,
whether to sue the employer for damages or claim compensa-
tion from the Fund. If he claims compensation his right of
action against the Employer is assigned to the State for the
benefit of the Accident Fund. Part V, § 5. In such an ac-
tion the employer is deprived of the common-law defenses.
Part V, § 5.
When the injury is due to the Act of a third person the
employe1 "may at his option proceed either at law against
that person to recover damages, or against the employer for
compensation under this Act, but not against both, and if
compensation be paid under this Act the employer may en-
force for his benefit or for that of the insurance company
carrying such risk, or the Commissioner of Insurance, as the
case may be, the liability of such other person." Part III,
§ 15. The Act does not contain any provision that in case
the employer recovers more than the compensation payable
that the balance shall be paid to the employed
316 Bradbury's workmen's compensation law
Nebraska
MINNESOTA
When both employer and employe1 have adopted the com-
pensation principle the sole remedy against the employer is
a claim for compensation. Part II, § 10. If the injury is
caused by a third person the employe1 may elect whether to
claim damages front such third person or compensation from
his employer, but he cannot claim both. Part II, § 33.
NEBRASKA
If both employer and employe have elected to adopt the
compensation feature of the statute the sole remedy of the
employe1 is a claim for compensation. Part II, § 11.
"Part II, § 11. Such agreement or the election hereinafter
provided for shall be a surrender by the parties thereto of their
rights to any other method, form or amount of compensation
or determination thereof than as provided in Part II of this
act, and an acceptance of all the provisions of Part II of this
Act, and shall bind the employe1 himself, and for compensation
for his death shall bind his legal representatives, his widow and
next of kin, as well as the employer and the legal representa-
tive of a deceased employer, and those conducting the busi-
ness of the employer during bankruptcy or insolvency."
Where a third person is liable for the injury or death, the
employer shall be subrogated to the right of the employe, or
to the dependents, and the recovery by such employer
shall not be limited to the amount payable as compensa-
tion to such employe, or dependents, but such employer
may recover any amount which such employ^, or his de-
pendents, would have been entitled to have recovered. Any
recovery by the employer against such third person in excess
of the compensation paid by the employer, after deducting
the expenses of making such recovery, shall be paid forth-
with to the employe^ or to the dependents, and shall be
ELECTION OF KEMEDY BY WORKMEN AFTER INJURY 317
Nevada
treated as an advance payment by the employer on account
of any future instalments of compensation. § 1§.
There does not appear to be any provision of the statute
specifically allowing a workman to sue a third person who is
liable for the injury, instead of claiming compensation from
the employer. Apparently if the workman, or his dependent,
should sue the third person who is liable for the injury or
death, it might be considered an election on the part of
the employe' to claim damages in lieu of compensation.
"Part III, § 49. (Employe — how released from claim.) If
any employ^, or his dependents in case of death, of any em-
ployer subject to the provisions of Part II of this Act files any
claim with, or accepts any payment from such employer, or
from any insurance company carrying such risk, on account
of personal injury, or makes any agreement, or submits any
question to the court under Part II of this Act, such action
shall constitute a release to such employer of all claims or
demands at law, if any, arising from such injury."
NEVADA
Where employers and employes are both under the com-
pensation feature of the Act the right to compensation is the
exclusive remedy of the employe. § 3 (o).
Where the injury is caused under circumstances which
create a legal liability in some other person than the em-
ployer "the employe* or beneficiary may take proceedings
against that person to recover damages, but the amount of
the compensation to which he is entitled under this act shall
be reduced by the amount of the damages recovered." § 7
(a). "If the employe* or beneficiary in such case receives
compensation under this Act, the Nevada Industrial Com-
mission by whom the compensation was paid, shall be en-
titled to indemnity from the person so liable to pay damages
as aforesaid, and shall be subrogated to the rights of the
employe* to recover therefor." § 7 (6).
318 BRADBURY'S WORKMEN'S COMPENSATION LAW
Nevada
If the employer is in default in any payment to the acci-
dent fund and an injury happens to any workman during
the period of default the injured workman or dependent of
a workman who was killed, may bring an action against the
employer under the same terms that he could have brought
such action prior to the passage of the Compensation Act.
In case the actual recovery in such a suit exceeds the
compensation to which the plaintiff would have been en-
titled, the plaintiff shall not be paid anything out of the ac-
cident fund. If the amount collected is less than the com-
pensation under the act the accident fund must contribute
the deficiency. § 37.
The provisions of the Act to which reference is made
above are as follows:
"§ 3, (a). The rights and remedies provided in this Act for
an employe" on account of an injury shall be exclusive of all
other rights and remedies of such employe^ his personal or
legal representatives, dependents or next of kin, at common
law or otherwise on account of such injury; * * *"
" § 5. Where the employer and employe" elect to reject the
terms, conditions and provisions of this Act, the liability
of the employer shall be the same as though the employe" had
not rejected the terms, conditions and provisions thereof.
"§37. If any employer shall default in any payment to
the accident fund hereinbefore in this Act required:, the sum
due shall be collected by action at law in the name of the
Nevada Industrial Commission as plaintiff, and such right of
action shall be in addition to any other right of action or rem-
edy. In respect to any injury happening to any of his work-
men during the period of any default in the payment of any
premium under section 6, the defaulting employer shall not,
if such default be after demand for payment, be entitled to
the benefits of this Act, but shall be liable to suit by the in-
jured workman (or the husband, wife, child or dependent of
such workman in case death result from the accident) as he
would have been prior to the passage of this Act. In case
the recovery actually collected in such suit shall equal or
ELECTION OF REMEDY BY WORKMEN AFTER INJURY 319
New Hampshire
exceed the compensation to which the plaintiff therein would
be entitled under this Act, the plaintiff shall not be paid any-
thing out of the accident fund; if the said amount shall be
less than such compensation under this Act, the accident fund
shall contribute the amount of the deficiency. The person so
entitled under the provisions of this section to sue shall have
the choice (to be exercised before suit) of proceedings by suit
or taking under this Act. If such person shall take under this
Act, the cause of action against the employer shall be assigned
to the Nevada Industrial Commission for the benefit of the
accident fund. In any suit brought upon such cause of action
the measure of liability shall be as provided in section 1, sub-
division "C" — 1, 2, 3, and 4 — of this Act. Any such cause of
action assigned to the Nevada Industrial Commission may be
prosecuted or compromised by the department in its discre-
tion. Any compromise by the workman of any such suit,
which would leave a deficiency to be made good out of the
accident fund, may be made only with the written approval
of the department."
" § 40. The State of Nevada shall not be liable for the pay-
ment of any compensation under this Act, save and except
from the said State Insurance Fund, to be derived from the
payment of premiums as provided in this Act."
NEW HAMPSHIRE
The workman or his dependents has the right to elect,
after the injury, whether to take under the statute or under
the common-law. § 4. An election to sue at common law
bars any right to claim under the statute. § 4. If, however,
an employer has complied with § 3 of the act, by satisfying
the Commissioner of Labor of his financial liability to comply
with its provisions, or has filed a bond with the Commissioner
of Labor, conditioned on the discharge by such employer of
all liability incurred under the Act, and the employe elects
to sue instead of taking compensation, the common-law de-
fense of assumption of risk, as provided in § 2, is still open
to the employer.
320 bradbury's workmen's compensation law
New Jersey
If an injury is caused in whole or in part by the wilful
failure of the employer to comply with any of the statutes or
with any order made under authority of law, the workman or
his dependents may sue at common-law, notwithstanding the
employer has elected to pay compensation, and in such case
the employe is deprived of the defense of assumption of risk.
§3. * .
" § 4. The right of action for damages caused by any such
injury, at common law, or under any statute in force on Jan-
uary one, nineteen hundred and eleven, shall not be affected
by this act, but in case the injured workman', or in event of
his death his executor or administrator, shall avail himself of
this act, either by accepting any compensation hereunder, by
giving the notice hereinafter prescribed, or by beginning pro-
ceedings therefor in any manner on account of any such in-
jury, he shall be barred from recovery in every action at
common law or under any other statute on account of the same
injury. In case after such injury the workman, or in the event
of his death his executor or administrator, shall commence
any action at common law or under any statute other than this
act against the employer therefor, he shall be barred from all
benefit of this act in regard thereto."
NEW JERSEY
Where both employer and employe" have agreed to the
compensation provisions of the statute "such agreement
shall be a surrender by the parties thereto of their rights to
any other method, form or amount of compensation or
determination thereof than. ag,provided in section II of this
act, and an acceptance of all the provisions of section II of
this act, and shall bind the employe" himself and for compen-
sation for his death shall bind his personal representatives,
his widow and next of kin, as well as the employer, and those
conducting his business during bankruptcy or insolvency."
§ II, subd. 8.
Where a third person is liable to the employe" or his de-
21
ELECTION OF REMEDY BY WOEKMEN AFTER INJURY 321
New York
pendents for the injury or death, an action may be brought
against such third person. If a sum is recovered which is
equivalent to or greater than the total compensation pay-
ments for which the employer is liable, the employer is re-
leased from the obligation of compensation. If the sum so
recovered from the third person is less than the compensation
payments the employer is liable for the difference. The
liability of the employer under the statute, to make compen-
sation continues until the payments, if any, by the third per-
son, are made. The employer may file with the third person
a statement of the compensation agreement or award
between himself and his employe, or the dependents thereof,
and the employer shall be entitled to receive from such
third person, upon the payment of any amount in release by
the third person, a sum equivalent to the amourit of compen-
sation payments which the employer has theretofore paid
to the employe- or his dependents, "which payments shall be
deducted by the third person or corporation from the sum
paid in release or judgment to the injured employ^ or his
dependents." § III, subd. 23. Added by L. 1913, c. 174.
Prior to the amendment it was held that an employe1 could
both sue a third person for damages and claim compensation
from his employer and that a release to the third person did
not affect the right to compensation as the release related to
a tort and the claim for compensation was not based on a
tort as far as the employer was concerned. Perlsburg v.
Muller (Essex Common Pleas), 35 N. J. Law J. 202; Hough-
ton v. W. G. Root Const. Co. (Mercer Common Pleas), 35
N. J. Law J. 332.
NEW YORK
If the employer who is subject to the provisions of the Act
has fully complied with § 50 as to insuring compensation pay-
ments the exclusive remedy of the employe1 is to claim com-
pensation. § 11. If the employer has failed to comply
21
322 bradbttry's workmen's compensation law
Ohio
with § 50 then the employe" may elect whether he will claim
compensation or sue for damages. §§11 and 52. If the in-
jury is due to the wrong of a third party the employe" may
elect to claim compensation or sue such party. § 29.
OHIO
Where employers have paid the premiums to the State
Insurance fund or have complied with the provisions of
§§ 1465-69; § 22 of the Act of 1913, permitting them, in
certain instances, to carry the risk themselves, the sole
remedy of the employe" (with the exceptions hereafter stated)
is to claim compensation either from the State fund or from
the employer who is permitted to carry his own risk. § 1465-
70; § 23 of the Act of 1913.
An employe" of an employer who has failed to adopt the
compensation principle may still elect to apply to the Indus-
trial Commission for compensation, and the Commission is
empowered to hear and determine such application for
compensation "in like manner as in other claims before the
board; and the amount of the compensation which said
board may ascertain and determine to be due to such injured
employe^ or to his dependents in case death has ensued, shall
be paid by such employer to the person entitled thereto
within ten days after receiving notice of the amount thereof
as fixed and determined by the board; and in the event of
the failure, neglect or refusal of the employer to pay such
compensation to the person entitled thereto, within said
period of ten days, the same shall constitute a liquidated
claim for damages against such employer in the amount so
ascertained and fixed by the board, which with an added
penalty of fifty per centum, may be recovered in an action in
the name of the State for the benefit of the person or persons
entitled to the same." § 1465-74; § 27 of the Act of 1913.
If the employer shall default in making payment to the
State Insurance fund he is subject to the same procedure
ELECTION OF REMEDY BY WORKMEN AFTER INJURY 323
Ohio
being taken against him as that specified above. § 1465-75;
§28 of the Act of 1913.
If the injury is due to "the wilful act of such employer,
or any of such employer's officers or agents, or from the
failure of such employer or any of such employer's officers or
agents to comply with any lawful requirement for the protec-
tion of the lives and safety of employes, then in such event,
nothing in this act contained shall affect the civil liability of
such employer, but such injured employ^, or his legal repre-
sentative in case death results from the injury, may, at his
option, either claim compensation under this act or institute
proceedings in the courts for his damage on account of such
injury." § 1465-76; § 29 of the Act of 1913. In such ac-
tions the defendant is entitled to plead the defenses of con-
tributory negligence and negligence of fellow servant, but
apparently not that of assumption of risk.
A case under § 1465-76 was brought to trial in the United
States District Court at Cleveland, in November, 1913,
wherein John J. McWeeney was the plaintiff and the Stand-
ard Boiler and Plate Company the defendant. A verdict
was rendered by the jury in favor of the plaintiff for the sum
of $14,000. The defendant was a contributor to the State
insurance fund. The case is now on appeal. The workman
contended that he and others had warned the foreman under
whom they were working that a derrick they were using
was unsafe; that the foreman paid no attention to the
warning and ordered the men to continue work without
repairing the derrick. The trial judge charged the jury that
"reckless disregard of another's safety" was a "wilful act"
within the meaning of the statute, entitling a workman to
recover damages even though the employer had joined the
State insurance fund.
"Every employe, or his legal representative in case death
results, who makes application for an award, or accepts
compensation from an employer who elects, under section
twenty-two of this act, directly to pay such compensation,
324 bradbury's workmen's compensation law
Oregon
i
waives his right to exercise his option to institute proceedings
in any court, except as provided in section forty-three hereof.
Every employe^ or his legal representative in case death
results, who exercises his option to institute proceedings in
court as provided in this section, waives his right to any
award, or direct payment of compensation from his em-
ployer under section twenty-two hereof, as provided in this
act." § 1465-76; § 29 of Act of 1913, last paragraph.
OREGON
Where both employers and employes are under the provi-
sions of the compensation feature of the statute the right to
claim compensation "shall be in lieu of all claims against his
employer on account of such injury or death except as here-
inafter specially provided." § 12.
If the injury is due to the act of a third person the work-
man or his dependents may elect either to take under the Act
or seek a remedy against such third person, and such election
must be in advance of any suit. If compensation is taken
under the Act the cause of action against a third person is as-
signed to the State for the benefit of the Accident Fund.
If the workman, or his dependents, elect to sue the third
person, the accident fund shall contribute only the deficiency,
if any, between the amount of recovery against such third
person actually collected, and the compensation provided or
estimated by the Act. § 12.
"If the injury or death results to a workman from the
deliberate intention of his employer to produce such injury or
death, the workman, the widow, widower, child or dependent
of the workman shall have the privilege to take under this
act, and also have cause of action against the employer, as if
this act had not been passed, for damages over the amount
payable hereunder." § 22.
If the employer is in default in making any payment to the
accident fund "in respect to any injury happening to any of
ELECTION OP REMEDY BY WORKMEN AFTER INJURY 325
Oregon
his workmen during the period of such default in any pay-
ment required hereunder, the defaulting employer shall not,
if such default be after demand for payment, be entitled to
any of the benefits of this Act, but shall be liable to the in-
jured workman (or the husband, wife, child or dependent of
such workman in case death result from the injury) as he
would have been prior to the passage of this Act." § 24.
If the recovery actually collected from the employer is equal
to or exceeds the compensation the claimant is not entitled to
anything from the accident fund. If such amount is less
than the compensation provided the accident fund must con-
tribute the deficiency. "The person entitled to claim under
this section shall have the choice, to be exercised before
commencing suit against such defaulting employer, of pro-
ceeding by suit against such employer or of taking under this
Act. If such person shall elect to take under this Act, the
cause of action shall be assigned to the Commission for the
benefit of the Accident Fund." § 24.
"If any workman shall sustain an injury which the Com-
mission shall determine to have been caused in whole or in
part by the failure of his employer to install or maintain any
safety appliance, device or safeguard required by statute,
such workman, or, if such injury result in death, then the
husband, wife, child or dependent of such workman, shall
have the same rights against such employer as in the case of
an employer defaulting in payments due hereunder, and all
of the provisions of the preceding section shall apply with
respect to such claim, provided in case the workman or his
beneficiary proceeds against the employer he shall have no
claim against the Accident Fund." § 25.
"§ 34. Nothing in this Act shall be deemed to abrogate the
rights of the employe" under the present employers' liability
law, in all cases where the employe^ under this act, is given
the right to bring suit against his employer for an injury."
326 Bradbury's workmen's compensation law
Texas
RHODE ISLAND
The right to compensation under the Act is in lieu of all
other rights and remedies where both the employer and the
employe" have adopted the compensation provision. Article
I, §§6 and 7.
If the injury was caused by the act of a third person the
employe" may take proceedings both against that person to re-
cover damages and against any person liable to pay compen-
sation) but he shall not be entitled to receive both damages
and compensation. If compensation has been paid under
the Act, the person by whom the compensation was paid,
shall be entitled to indemnity from the person so liable to
pay damages, and to the extent of such indemnity the
employer shall be subrogated to the rights of the employe" to
recover damages. Article III, § 21.
TEXAS
The right to compensation as to such employers as become
"subscribers" is in lieu of all other claims except such as are
specificially provided for in the Act. Part I, § 3.
Where death is caused by homicide "through the wilful
act or omission or gross negligence of any person, firm or
corporation, the employer of such employe" at the time of the
injury causing the death of the latter and in all cases where
exemplary damages are sought under this section in case the
injured party has already been awarded actual damages by
the Board herein provided, said fact and said amount so
received shall be made known to the court or jury trying said
cause for exemplary damages; and on the issue for exemplary
damages he shall have the same defenses as under the existing
law." The foregoing provision is an additional remedy where
death is caused as stated in this section. Part I, § 5.
ELECTION OF REMEDY BY WORKMEN AFTER INJURY 327
Washington
WASHINGTON
Civil causes of action for personal injury and all jurisdic-
tion of the courts of the State over such causes are abolished
as to such injuries as are caused in the occupations covered
by the statute, except as in the Act otherwise specifically
provided. § 1.
In a note to § 1 the Industrial Insurance Commission of
Washington states: "Employes as members of the public
have their rights against third persons as heretofore."
Section 3 of the Act provides: "If the injury to a workman
occurring away from the plant of his employer is due to the
negligence or wrong of another not in the same employ, the
injured workman, or if death results from the injury, his
widow, children or dependents, as the case may be, shall
elect whether to take under this Act or seek a remedy against
such other, such election to be in advance of any suit under
this section; and if he take under this Act, the cause of action
against such other shall be assigned to the State for the
benefit of the Accident Fund; if the other choice is made, the
Accident Fund shall contribute only the deficiency, if any,
between the amount of recovery against such third person
actually collected, and the compensation provided or esti-
mated by this Act for such case. Any such cause of action as-
signed to the State may be prosecuted, or compromised by
the Department, in its discretion. Any compromise by the
workman of any such suit, which would leave a deficiency
to be made good out of the Accident Fund, may be made
only with the written approval of the Department."
The payment of compensation shall be in lieu of any and
all rights of action whatsoever against any person whomso-
ever. § 5.
Any injury happening while the employer is in default in
making any payment to the State Fund the defaulting em-
ployer is not entitled to any of the benefits of the Act, but
328 bbadbury's workmen's compensation law
Washington
shall be liable to suit by the injured workman or to a depend-
ent, as he would have been prior to the passage of the Act.
§ 8. In case the amount collected in such a suit equals or
exceeds the compensation to which the plaintiff would be
entitled the plaintiff shall not be paid anything out of the
accident fund; if the said amount shall be less than such
compensation underHhe act the accident fund shall contrib-
ute the deficiency. The person entitled to sue shall exercise
his election before bringing suit. § 8. If such person decides
to claim compensation the cause of action against the em-
ployer shall be assigned to the State for the benefit of the
accident fund. § 8. In any such suit the defenses of as-
sumption of risk and negligence of fellow servant shall not
be pleaded by the employer and the doctrine of comparative
negligence shall obtain. § 8. In case of an injury, caused by
the absence of a safeguard or protection, required to be
provided or maintained by or pursuant to any statute or
ordinance or any departmental regulation under any such
statute, or if the workman at the time of the injury is less
than the prescribed age for the employment of a minor, in
the occupation in which he shall be engaged when injured,
the employer is required to pay into the fund an amount
equal to fifty per cent of the amount of compensation. This
additional amount, however, does not appear to go to the
workman. § 9.
Section 8 of the statute provides:
"If any employer shall default in any payment to the acci-
dent fund hereinbefore in this act required, the sum due shall
be collected by action at law in the name of the State as plain-
tiff, and such right of action shall be in addition to any other
right of action or remedy. In respect to any injury happening
to any of his workmen during the period of any default in the
payment of any premium under section 4, the defaulting em-
ployer shall not, if such default be after demand for payment,
be entitled to the benefits of this act, but shall be liable to suit
by the injured workman (or the husband, wife, child or de-
ELECTION OP REMEDY BY WORKMEN AFTER INJURY 329
West Virginia
pendent of such workman in case death result from the acci-
dent), as he would have been prior to the passage of this act.
"In case the recovery actually collected in such suit shall
equal or exceed the compensation to which the plaintiff therein
would be entitled under this act, the plaintiff shall not be paid
anything out of the accident fund; if the said amount shall be
less than such compensation under this act, the accident fund
shall contribute the amount of the deficiency. The person so
entitled under the provisions of this section to sue shall have
the choice (to be exercised before suit) of proceeding by suit or
taking under this act. If such person shall take under this
act, the cause of action against the employer shall be assigned
to the State for the benefit of the accident fund. In any suit
brought upon such cause of action the defense of fellow servant
and assumption of risk shall be inadmissible, and the doctrine
of comparative negligence shall obtain. Any such cause of
action assigned to the State may be prosecuted or compromised
by the department in its discretion. Any compromise by the
workman of any such suit, which would have a deficiency to
be made good out of the accident fund, may be made only with
the written approval of the department."
WEST VIRGINIA
Where both employer and employe" are subject to the
compensation provisions of the statute the right of the em-
ploye to claim compensation is in lieu of all other demand.
§22.
If the employer is in default in paying premiums to the
State Fund he is liable for damages without the benefit of
the common law defenses. § 26.
"If injury or death result to an employe1 from the delib-
erate intention of his employer to produce such injury
or death, the employe, the widow, widower, child or depend-
ent of the employe shall have the privilege to take under this
Act, and also have cause of action against the employer as if
this Act had not been enacted, for any excess of damages over
the amount received or receivable under this Act." § 28.
330 bkadbury's workmen's compensation law
Wisconsin
WISCONSIN
Where the employer and employe are subject to the
compensation provisions of the act "liability for the com-
pensation hereinafter provided for, in lieu of any other
liability whatsoever, shall exist against an employer * * * "
§2394-3. *
In a note to the above section the Industrial Commission
of Wisconsin states:
"Where the employer and employe" are subject to the
compensation act, the provisions of the act are exclusive and
the employe cannot maintain a suit in court against his
employer. He may make his application for compensation
under the Act and must abide by its provisions."
If the injury is caused by the failure of the employer to
comply with any statute of the State, or any lawful order of
the Industrial Commission, the compensation provided shall
be increased fifteen (15) per cent. § 2394-9 (5) (a).
If the injury is due to the act of a third person and the
employe" shall make a claim against his employer for com-
pensation such claim shall operate as an assignment of any
cause of action in tort which the employe or his personal
representative may have against any other party for injury
or death, and such employer may enforce, in his own name,
the liability of such other party. The making of a claim by
an employe" against a third party for damages by reason of
an accident covered by the statute, shall operate as a
waiver of any claim for compensation against the employer.
§2394-25.
In a note to the above section the Industrial Commission
of Wisconsin states:
"In case injury is caused by the act of a person other than
the employer, under this amendment the employe" must
elect whether to claim compensation from the employer or
the third party. It prevents the employe" from making
claims against both employer and the third party."
CHAPTER VI
" INJURIES » WHICH ARE THE BASIS OF A CLAIM
FOR COMPENSATION AND WHEN THEY " ARISE
OUT OF" AND "IN THE COURSE OF" THE
EMPLOYMENT.
Page
ARTICLE A. — Introduction; Scope op Chapter 333
Page
1. Significance op terms
employed 333
2. Obligation to the family
of a workman in cases
OF intentional injuries
or serious misconduct . 334
3. Going to and from place
of employment 338
4. Injuries by third persons 338
5. Employers' liability
cases in point; how
cited 339
ARTICLE B. — What is an "Injury" or an "Accidental
Injuby?" 339
Page
1. In general; distinction
BETWEEN THE WORD
"injury" and the
term ''accidental in-
jury" as found in the
various statutes 339
2. Injuries without exter-
nal MANIFESTATION. . . . 350
3. "Bends" 351
4. Injuries due to gradual
wearing or constant
usb of particluar
MEMBERS 351
5. Germ or poison enter-
ing SYSTEM THROUGH
break in skin 352
6. Skin affections from
acids and other irri-
TANTS 356
7. Contracting infectious
and contagious di-
SEASES; anthrax;
glanders 358
8. Diseases due to trau-
matism BUT WITHOUT
DIRECT EXTERNAL IN-
FECTION or contagion;
tuberculosis 359
9. Injuries from falls
caused by fits, ver-
tigo or other like
CAUSES 360
10. Apoplexy 363
11. heart diseases 363
12. Sprains, strains and rup-
tures 366
13. Inhalation of noxious
gases 370
331
332 Bradbury's workmen's compensation law
Summary
Page
14. Pneumonia following 24.
exposure ob trauma-
TISM 371
15. Lead poisoning 373
16. Copper poisoning 374
17. "Sun-stroke", "heat 25.
stroke" and "frost-
bite" 375 26.
18. Drowning 380
19. Mental shock or fright
and neryous troubles. 380 27.
20. Insanity 384
21. Suicide due to mental 28.
condition caused bt
accident 385
22. Acceleration or aggra- 29.
vation of pre-existing
disease 385 30.
23. Disability made more
serious by illness or
other contributory
CAUSE 391
Page
Infections and other
ailments contracted
by reason of lowered
vitality due to pre-
vious injuries 392
Condition due to medi-
cal TREATMENT 394
Refusal of workman to
permit operation to
be performed 396
Vaccination by order of
superior 397
Diseases contracted in
hospital after acci-
DENTAL injury 397
Breaking artificial
leg 397
Death not natural or
probable consequence
of injury 398
ARTICLE C. — When does an Injury "arise out of'
"in the course of" the Employment?
Page
OR
398
1. In general; distinction
between terms "aris-
ing out of" and "in
the course of" 398
2. Going to and from place
of employment 404
3. Seamen and mechanics
getting on and off
VESSELS 412
4. Workmen injured on em-
ployer's PREMISES BE-
FORE WORK BEGINS,
AFTER WORK CEASES, OR
DURING CESSATION OF
WORK 419
5. Working after regular
hours of employment. 437
6. Servant living on mas-
ter's PREMISES SUFFO-
cated in burning
house 437
7. Entering employer's
premises to apply for
work 438
8. Returning to Employ-
er's PREMISES TO SE-
CURE pay 438
9. Returning to employ-
er's PREMISES TO SE-
CURE TOOLS 440
INJURIES ARISING OUT OF EMPLOYMENT
333
Significance of terms employed
Page
10. Unnecessarily going to
a place of danger .... 440
11. Injuries at mealtime .. . 444
12. Getting drink or water. 450
13. Attending to call of na-
ture 451
14. Workmen whose duties
take them away from
THE employer's PREM-
ISES 452
15. Volunteers; acting
without scope of au-
thority 456
16. Going to portions of
employer's premises
other than those nec-
essarily used by the
workman, for his own
convenience or pleas-
ure 475
17. Serious and wilful mis-
conduct 480
Page
18. Disobedience of speci-
fic orders 493
19. Acting on unauthorized
orders 500
20. Acting in an emergency. 501
21. Saving life of another. 505
22. Assaults. Injuries
caused by third per-
sons 505
23. Playing practical jokes. 511
24. Bite of animal 512
25. Sting of insect 514
26. Bite of snake 514
27. Foreign substance in
eye 514
28. Seaman injured by ex-
plosion of gun 515
29. Lightning striking
workman 515
30. Drawing inferences
from unexplained in-
juries 516
ARTICLE D. — Specific Provisions of Various Compensa-
tion Acts 518
Page
Arizona 518
California 519
Connecticut 519
Illinois 520
Iowa 520
Kansas 520
Maryland 521
Massachusetts 521
Michigan 521
Minnesota 522
Nebraska 522
Nevada 523
New Hampshire 523
New Jersey 523
New York 524
Ohio 524
Oregon 524
Rhode Island 525
Texas 525
Washington 526
West Virginia 526
Wisconsin 526
.ARTICLE A.— INTRODUCTION; SCOPE OF CHAPTER
1. Significance of terms employed.
Doubtless the questions which constitute the title of this
334 bhadbtjry's workmen's compensation law
Obligation to workman's family
chapter are, and will continue to be, the principal sources of
controversy under all workmen's compensation acts. While
several distinct questions are involved they are so inter-
dependent that it will be found convenient to discuss them
in one chapter.
When the word "injury" alone is used in a statute its
scope is very broad. Almost all diseases are construed to
be "injuries". Whereas, if the term is qualified by the word
"accident" an entirely different element is introduced.
Some of the statutes award compensation when an "in-
jury" or an "accidental injury", as the case may be, "arises
out of and in the course of" the employment; while others
merely require that the injury shall occur "in the course of"
the employment. This distinction also is an important one,
as is demonstrated by the adjudications hereinafter discussed.
Not all of the American statutes use this phraseology. In
the Wisconsin Act it is provided that compensation shall be
awarded "Where, at the time of the accident, the employe1
is performing service growing out of and incidental to his em-
ployment." The California Act provides for compensation
"Where, at the time of the accident, the employ^ is per-
forming service growing out of and incidental to his employ-
ment and is acting within the course of his employment as
such." Nearly all of the acts, however, provide for compen-
sation either when the injury "arises out of and in the course
of employment" or merely when the injury occurs "in the
course of the employment." The meaning of the exceptional
phrases seems to be about the same as the conventional one
"arising out of and in the course of the employment", as the
adjudications hereinafter cited indicate.
2. The obligation to a workman's family in cases of in-
tentional injuries or serious misconduct.
If a workman should intentionally cut off a finger, or a
hand, probably no one would urge that his employer should
be compelled to pay him compensation for the injury. If
INJURIES ARISING OUT OF EMPLOYMENT 335
Obligation to workman's family
he should become stupidly intoxicated during working hours
and injure himself, certainly it might well be urged that no
principle of law or morality could be advocated successfully
in favor of making it incumbent on the employer to support
the workman and his family while he was recovering from the
injury. If the employe^ being the aggressor, should engage
in a fight with another workman and should receive injuries
which incapacitated him, again it could easily be contended
that it would be the height of injustice to compel the em-
ployer to pay compensation for the injury. Probably no
fair minded person will dispute these propositions.
There are other circumstances where equally cogent argu-
ments might, perhaps, be adduced for denying liability for
compensation, but as to which there is a conflict of opinion.
For example, where a workman, who is not familiar with a
particular machine, which is inherently dangerous to operate,
is specifically ordered not to touch it, because it can be
operated safely only by those who are experienced and ex-
pert, disregards such orders and is injured, should his em-
ployer be compelled to pay penalty of such disobedience?
Naturally the answer is "No; for if any other rule should
prevail discipline would be destroyed." Therefore principles
have been introduced in some of the statutes denying com-
pensation when the injury is due to "serious and wilful
misconduct." Even when no such specific exception has
been contained in a particular law, if an employe has been
injured while doing something entirely beyond the scope of
his duties, or something which he has been specifically
ordered not to do, it has been held usually that the injury
did not "arise out of the employment" and compensation
has been refused. This class of cases, however, is on the
border line. There is much conflict in the application of the
principle. This lack of uniformity is due to several causes.
One of these causes arises from the difficulty of the ap-
plication of the principle to the facts -proved in particular
cases. Another is the hardship caused to the workman's
336 bradbury's workmen's compensation law
Obligation to workman's family
family when serious injury or death is caused by acts on the
part of the employe^ which, ordinarily, would lead to a denial
of compensation. So far as the workman's family is con-
cerned, the hardship is just as great if the wage earner is
removed or incapacitated through some act of serious and
wilful misconduct, as it would be had the injury or death
been caused by tlje gross negligence of the employer. The
employer may well ask, and has asked heretofore success-
fully: "What has that to do with me?" Considering each
employer alone in respect to an individual workman ob-
viously the answer is, "Nothing." But that assumes that
the family of a workman is not a part of the industrial system
of the State or Nation; that while the industry owes to the
workman himself the duty of compensating him for injuries
necessarily incident to the occupation in which he is engaged,
it owes no separate duty to his family which is based1 on prin-
ciples different from those regulating the obligation to the
workman himself. Are we sure that this reasoning is en-
tirely sound? If a domestic animal with young is killed
by reason of its own viciousness we nevertheless care for the
young and do many things which cost time and money to take
the place of the parent. Why? Clearly because the young
animals are of value to the owner and he hopes to reap a
money reward for the additional care he is compelled to be-
stow on them by reason of the unreasoning misconduct of
the parent. Are not widows and young children, in a very
much higher degree and on much more humanitarian princi-
ples, entitled to the care of the State when the wage earner
is removed, even by reason of his own serious and wilful mis-,
conduct? "Certainly"; we can anticipate others, as well as
employers, saying, " let the State do it." It may be conceded
that the answer is logical and that such cases are a charge on
the whole community anyway, and must be accepted as
such.
But there are many practical and cogent reasons why such
an answer is not satisfactory and ought not to be accepted
INJURIES ARISING OUT OF EMPLOYMENT 337
Obligation to workman's family
without careful consideration. Indeed it has been rejected,
in a large measure, in England, and he would be bold who
would assent that the basis of the rejection has not been
economically sound as well as intensely humanitarian. Un-
der the British Act compensation is denied when the injury
is caused by serious and wilful misconduct unless "the injury
results in death or serious and permanent disablement."
The exception is much more important than the rule. The
intent to provide for a workman's family in any event is
quite apparent. The British Statute has been the subject
of harsh criticism, but Parliament has refused to modify it.
Instead of making public charges of the innocent victims
(widows and children) of such accidents, it follows the com-
pensation doctrine to its logical conclusion of making each
trade bear its own losses. And it considers the loss to the
family of the workman as well as that of the workman him-
self. So, while it may be argued with much force that cases
of that character should be cared for by the community at
large, the experience in England proves that no real injustice
will be done by making this also a part of the burden which
must be borne by each industry. The small inequalities
which will result from saddling a trade with a risk which is
not necessarily incident to that occupation, but is dependent
upon the personal qualities of the workmen who happen to
be engaged in it at any particular time, will not be so great,
in actual experience, as might be imagined from a purely
academic discussion. Most important of all, such a plan
prevents these innocent victims from the degradation of
becoming recipients of public charity. As, ordinarily, such
cases inevitably are a charge on all industries of the com-
munity, the industries in which they occur would be com-
pelled to pay their share, even though the payments were
made directly by the State. In a few isolated cases it may
be that the burden will not be so evenly distributed, where
each industry is compelled to recognize this obligation to the
families of its workmen, as it would be should the obligation
22
338 bradbury's workmen's compensation law
Injuries by third persons .
be borne by the community as a whole. But, for the reasons
suggested, cases of this kind perhaps ought to be classed
as injuries arising out of the occupation, certainly to the ex-
tent they are so recognized by the British Compensation
Statute.
3. Going to and from place of employment.1
Many questions have arisen and are discussed in detail
hereinafter relating to injuries which have occurred while
the workmen were on their way to or from the place where
their work was to be performed. Generally it has been held
that while an employe" was on his employer's premises, or
while on a conveyance furnished by the employer to convey
his workmen to and from the place of employment, the re-
lation of master and servant still subsisted. Decisions to
this effect have been made under the common law and em-
ployers' liability acts as well as under workmen's compensa-
tion statutes. But of course there are many exceptions to
the general rule.
4. Injuries by third persons.
In one other respect the compensation acts have greatly
broadened the liability of the employer. That is in making
the master liable for injuries to a workman when caused by
the wrongful act of a stranger away from the employer's
premises, provided only the employe was injured while per-
forming duties in the course of his employment. Thus, if
a driver of a horse, or of a motor car, is injured by being run
down by a street car, while the driver is in the performance
of his duties, the employer is liable for compensation even
though the owner of the street car may also be liable to the
driver for negligently causing the injury. Some of the stat-
utes give the driver an optional remedy in such a case,
while others give him the right concurrently to claim com-
1 This subject is fully discussed, post, page 404.
INJURIES ARISING OUT OF EMPLOYMENT 339
Distinction between "injury" and "accidental injury"
pensation from his employer and sue the third person for
damages. Usually, however, there is a right of subrogation
in one f orm or another open to the employer.
In cases of intentional assault the liability is not so clear.
These questions are discussed in Article C, in this chapter.
5. Employers' liability cases in point; how cited.
So many cases arising under the common law and em-
ployers' liability statutes, are in point under the compensa-
tion laws, on the question of whether or not an injury is
received in the course of the employment, that many of the
more modern, as well as some older leading cases, have been
cited in the pages which follow in this chapter. That there
may be no confusion on the subject, however, the letters
(E. L.) in parentheses precede the title to each case which is
decided on doctrines or laws other than workmen's compen-
sation statutes.
ARTICLE B.— WHAT IS AN "INJURY" OR AN "ACCIDENTAL
INJURY"?
1. In general; distinction between the word " injury " and
the term " accidental injury " as found in the various
statutes.
As already pointed out, some of the statutes provide for
compensation when a workman receives an "injury" in the
course of his employment, while others specify an "acciden-
tal injury" or an "injury by accident" as the foundation for
such a claim. As interpreted by the courts, accident boards,
industrial commissions and Federal authorities the dis-
tinction seems to be an important one. Speaking generally,
it is held, (but not universally) where the word "accident"
is omitted, that workmen who suffer from what are known
as "occupational diseases" are entitled to compensation.
On the other hand, it is decided where the word "accident"
is used that those contracting occupational diseases have no
claim for compensation. The latter doctrine was established
340 bradbtjby's workmen's compensation law
Distinction between "injury" and "accidental injury"
early under the British Compensation Act in which the
word ' ' accident " was found. Marshall v. East Holywell Coal
Co. (1905), 7 W. C. C. 19; Walker v. Hockney Brothers (1909),
2 B. W. C. C. 20; Steel v. Cammell, Laird & Co. (1905),
7W.C.C.9; Williams v. Duncan (1898), 1 W. C. C. 123.
Subsequently a provision was added to the British Act
specifically allowing compensation to those contracting cer-
tain occupational diseases and authorizing the Secretary of
State, by proclamation, to enumerate other diseases of that
character to be added to the list originally contained in the
statute.
There is still much uncertainty on the subject under the
American statutes. Where the word "injury" only is used
some of the authorities whose duty it is to administer the
compensation laws have decided that it includes occupa-
tional diseases as well as accidental injuries, while others
have expressed a contrary view. In Michigan, for example,
while the several portions of the Act are somewhat incon-
sistent it is nevertheless provided in Part 2, § 1, of that
statute, that an employe who "receives a personal injury
arising out of and in the course of his employment", etc.,
shall receive compensation. In Part 1, § 5, subd. 2, of the
same Act, in describing the employers who shall be subject
to the provisions of the statute, it is provided that "every
person, firm and private corporation, including any public
service corporation who has any person in service under any
contract of hire, express or implied, oral or written, and who,
at or prior to the time of the accident to the employe" for
which compensation under this act may be claimed shall",
etc. Thus the last-quoted section provides for an accidental
injury, while Part 2, § 1, specifies merely of a personal injury.
The Michigan Industrial Accident Board has held that an
industrial disease, such as lead poisoning, is a personal in-
jury within the meaning of the statute, entitling the work-
men to compensation, and the Board has made a general
rule to the effect that victims of occupational diseases are
INJURIES ARISING OUT OF EMPLOYMENT 341
Distinction between "injury" and "accidental injury"
entitled to compensation under the Michigan Act. Adams
v. Acme White Lead & Color Works, Mich. Indus. Ace. Bd.
Nov. 3, 1913; The Indicator, Nov. 5, 1913, page 443. *
The Federal Compensation Act relating to Government
employes does not contain the word "accident" in the prin-
cipal clause, but provides that compensation shall be granted
if the employe "is injured in the course of such employment."
Subsidiary clauses provide for the reporting of "accidents"
and otherwise refer to "accidental" injuries. In this respect
it is similar to the Michigan Act.
It was formerly held under the Federal statute that an
employe1 might be "injured" so as to be entitled to compensa-
tion without having suffered a definite "accident." Thus,
where a plate printer, following his usual occupation, sus-
tained a sprain of the wrist and a rupture of the synovial sac,
it was held that he was injured within the meaning of the
statute and entitled to compensation. Re A. E. Clarke, Op.
Sol. Dep. C. & L., p. 150. In the last-mentioned case the
Solicitor of the Department of Commerce and Labor con-
sidered the subject in an exhaustive opinion, which was
supplemented by that of the Attorney General. The At-
torney General reached the conclusion that "within the
language of the statute an employe" may be injured in the
course of his employment without having suffered a definite
accident." The Attorney General noted that the word
"accident" was used in several places in the statute in re-
lation to the reporting of disabilities caused to employes,
but came to the conclusion that "the word 'injury' is em-
ployed comprehensively to embrace all the cases of incapacity
to continue the work of employment, unless the injury is due
to the negligence or misconduct of the employe" injured —
and including all cases where as a result of the employees oc-
cupation he, without any negligence or misconduct, becomes
unable to carry on his work and this condition continues for
more than fifteen days." In an earlier case the Solicitor
1 See post, page 373.
342 bradbury's workmen's compensation law
Distinction between "injury" and "accidental injury"
had held that a disease contracted in the course of employ-
ment was not an "injury" within the meaning of the act,
although directly attributable to such employment. Re
John Treiman, Op. Sol. Dep. C. & L., p. 166. In the last-
mentioned case the claimant was employed as a laborer in
the Boston Navy Yard, to scale lead-painted compartments
on ships. He becanfe incapacitated by reason of lead poison-
ing, contracted in the course of his employment. In a later
case, and after the decision was made in the Clarke case, the
Attorney General had occasion again to consider the question
of diseases arising in the course of employment, in the case
of John Sheeran. There the employe was a laborer engaged
in river and harbor construction. Immediately prior to be-
coming incapacitated he was employed in cleaning a building,
attending to a heating plant and removing ashes. In the
course of his employment, while removing ashes from the
furnace room to a pile outside the building, he contracted a
severe cold which resulted in pneumonia and he was incapac-
itated for duty a period of more than fifteen days. The em-
ploye* 's disability was in no way due to negligence or miscon-
duct on his part. The Attorney General modified his former
views and held that the applicant was not entitled to com-
pensation, saying among other things:
"There is nothing either in the language of the Act or its
legislative history which justifies the view that the statute
was intended to cover disease contracted in the course of
employment, although directly attributable to the condi-
tions thereof. On the contrary, it appears that the statute
was intended to apply to injuries of an accidental nature
resulting from employment in hazardous occupations — not
to the effects of the disease." The Attorney General then
referred to his former opinion in the A. E. Clarke case and
said, respecting the same:
"That opinion, however, was not intended to create the
impression that the statute in question covered diseases
contracted in the course of employment. The language of
INJURIES ARISING OUT OF EMPLOYMENT 343
Distinction between "injury" and "accidental injury"
the opinion is perhaps broader than it should be, in the light
of the committee report on the bill above quoted, which in-
dicates that only injuries of an accidental nature were in
mind. As, however, the statute is remedial, it should be
generously construed, and so construed it might be held to
include injuries of the character there referred to, although,
strictly speaking, no definite accident had occurred which
gave rise to the injury. The word 'injury', however, as used
in the statute, is in no sense suggestive of disease, nor has it
ordinarily any such signification." Re John Sheeran, 28
Op. Atty. Gen. 254; same case reported Op. Sol. Dep. C.
& L., p. 169.
It has again been reiterated under the Federal Act that
acute lead poisoning is not such an injury as entitles an
employe to compensation. Re C. L. Schroeder, Op. Sol. Dep.
C. & L., p. 172. Similarly where a workman suffered from
cystitis and prostatitis, which he claimed was the result of
overwork, it was held that he was merely suffering from
disease which was not covered by the terms of the Federal
Act, and compensation was refused. Re H. A. Ourand, Op.
Sol. Dep. C. & L., p. 171.
Where disability is referable to no definite accident or
occurrence, although arising in the course of employment,
involving chiefly a gradual weakening, wearing out, or break-
ing down of the employe, * this is not an injury within the
meaning of the Federal Act. Re Elizabeth Hewitt, Op. Sol.
Dep. C. & L., p. 210. In the last-mentioned case while the
employe was engaged in making ponchos she was taken ill.
Being conducted to an open window she had a fainting spell
and was unconscious for about five minutes. It appeared
that previously the employe1 had had a nervous breakdown
while working on comparatively light work. At the time of
the injury she was working harder than usual, and had just
carried a number of articles, upon which she was working,
to other parties. It was held that the claimant's condition
1 See also paragraph 4, post, page 351.
344 beadbury's workmen's compensation law
Distinction between "injury" and "accidental injury"
was apparently due to causes inherent in the individual,
resulting in a gradual weakening and breakdown and that
there was no event or occurrence at any definite time which
could be referred to as the cause of the collapse.
An employe1 overtaken while at work by disability due to
some unascertained internal disorder, not shown to have
been caused by any accident or occurrence in the course of
the employment, is not entitled to compensation. Re J. V.
Trammell, Op. Sol. Dep. C. & L., p. 206. An injury caused by
continuous strain due to the nature of the work, and which
develops gradually, with no element of accident, is not an in-
jury covered by the act. Re M. A. Crellin, Op. Sol. Dep. C.
& L., p. 195. In this instance the claimant was a woman
employed in the Public Printer's Office, folding heavy sheets
of paper. The injury was reported to be "ganglion or cystic
growth, probably due to continuous strain, causing a de-
generation and cystic formation of the tendon sheath."
Other determinations appear to have distinguished or
modified somewhat the decisions already cited. Thus the
claimant, a shipfitter, was employed in the Puget Sound
Navy Yard, working in the fire and engine rooms engaged in
placing floor plates therein. While so engaged, red and
white lead paint was being applied in the bilges of the vessel.
As a result of this exposure to lead fumes, a sufficient amount
of lead was taken into claimant's system to produce "toxic
amblyopia" in both eyes. "Amblyopia" is defined, as
"dimness of vision from imperfect sensation of the retina,
without organic lesion of the eye"; and "toxic amblyopia"
is due to poisoning. The solicitor remarked that although
a claimant's disability or incapacity for work may be due to
the disease, the disease itself may be due to an injury of an
accidental nature. He also stated that the claimant's
particular work had nothing to do with the painting opera-
tions going on about him; that in attending to his particular
work as a shipfitter his eyes should be injured as a result of
the poisoning of lead-painting in the vicinity, because he
INJURIES ARISING OUT OF EMPLOYMENT 345
Distinction between "injury" and "accidental injury"
chanced to inhale sufficient of the lead fumes to produce
"toxic amblyopia", was something that neither he nor any-
one else could reasonably be expected to foresee. Under all
the circumstances, therefore, it seemed clear that the injury
was of an accidental nature which entitled the claimant to
compensation. Re E. L. Hill, Op. Sol. Dep. C. & L. p. 204.
A bodily affliction caused without a definite accident,
although arising out of the employment and brought about
by external causes, which is not the result of a gradual proc-
ess or slow accumulation of trifling hurts, nor due to a con-
stant repetition of known or anticipated injurious effects, if
it develops rapidly is referable to a fixed time, and if, through
a natural result of surrounding conditions, it is neither a
necessary result nor a result reasonably to be feared, is an
injury within the act. Re J. B. Irving, Op. Sol. Dep. C. &
L., p. 211. In the last-mentioned case the claimant was a
plate printer employed on the night force of the Bureau of En-
graving and Printing. At the place where the claimant was
working a new type of electric light had been installed, the
object being to test the lights and determine their suitability
for installation in other buildings. The claimant's duty re-
quired him to look at a bright engraved plate for a few seconds
during the operation of printing a sheet and at such times
the rays of the new light were reflected from the plate into
his eyes. The operation of printing the sheet was repeated
about nine hundred times in the course of an ordinary night's
work. The claimant contended that these reflections caused
the watering and burning of the eyes and an inability to
keep his eyes open under the lights. A few nights after the
installation of the new lights he was forced to quit work and
consulted an oculist who certified that the claimant's injury
consisted of "retinitis, conjunctivitis, both eyes." The
oculist further expressed the opinion that the condition de-
scribed was due to the bright lights described by the claim-
ant. The company which installed the lights contended that
it was impossible for the condition described to have been the
346 bradbury's workmen's compensation law
Distinction between "injury" and "accidental injury"
result of the light. It was held that under the circumstances
the injury came within the meaning of the Federal Statute
and compensation was awarded.
A disease not contracted but caused by physical means,
under circumstances involving an element of accident, is
an injury within the meaning of the act. Be William Murray,
Op. Sol. Dep. C. &*L., p. 201. In this case the claimant was
a laborer employed in the Reclamation Service. His duties
required him to work in compressed air. In consequence
he was attacked with a severe case of "bends." When origi-
nally presented, the claim was disallowed on the ground that
"bends" was a disease. On reconsideration it was decided
that "bends" was in the nature of a rupture or lesion of some
of the internal organs, due to the change between high and
normal atmospheric pressure. Under such circumstances,
therefore, it was held that when a laborer was afflicted with
"bends" it could not be said that the element of. accident
was altogether lacking and therefore compensation was
awarded.
A workman was injured by a pipe wrench falling and strik-
ing him on the instep. He remained at work for a few days
and then stopped work, thinking he had sprained his ankle.
Tuberculosis of the os calcius developed and the physician
testified that in his opinion the condition was due to the in-
jury, although he stated that the tuberculosis germ must
necessarily have existed in the system prior to the injury to
make it possible for the injury to have resulted in a tuber-
culous condition. It was held under the circumstances that
the workman was entitled to compensation. Re William M.
Lloyd, Op. Sol. Dep. C. & L., p. 209.
The Massachusetts Workmen's Compensation Act does
not contain the word "accident", but provides that work-
men are entitled to compensation who receive "personal
injuries" etc. The Massachusetts Industrial Accident
Board has considered this question on a number of occasions
and Hon. James B. Carroll, the Chairman of the Board, in a
INJURIES ARISING OUT OF EMPLOYMENT 347
Distinction between "injury" and "accidental injury"
letter to the author (which is used by permission) summed
up the opinion of the Board as follows :
"The words 'personal injuries' in the Massachusetts law,
as compared with the word 'accident' in the English law,
appear to give the opportunity in Massachusetts for a much
broader application in favor of injured employees.
" In practice it has worked out that anthrax is included as
a personal injury. The insurance companies have paid dis-
ability compensation for a sarcoma following a traumatism.
In a case now pending before a board of arbitration, blindness,
caused by the passing of a workman over a producer gas
furnace emitting carbon dioxide, carbon monoxide and other
dangerous substances which, after gaining entrance to the
body through the digestive or respiratory tracts, are held to
have a direct effect upon the optic nerve and to result in
optic neuritis followed by blindness (in this case the whole
process from the beginning of manifestation of injury to the
time of total blindness was less than four months), will proba-
bly be held to be a 'personal injury' in which, using your
own words, 'there is no accidental injury to the physical
structure of the body. '
"We have also had a case of a man engaged in extinguish-
ing a fire, who by reason of his exposure to dampness con-
tracted pneumonia resulting in death. It has been held in
this case that this was a personal injury within the meaning
of the statute, and the insurance companies, following the
decision given ex 'parte, have settled and paid compensation
therefor.
"Another case has just been settled by an arbitration
committee of incapacity from work caused by hypertrophied
heart and secondary tuberculosis, following an injury caused
by lifting a heavy burden. His history and examination
showed that, while the man had an enlarged heart and in-
cipient tuberculosis before the injury, his disability was ac-
celerated about two years, and the injured man was awarded
two years' disability compensation.
"In another case, a man seventy-two years of age has
been disabled since last December from plumbism or lead
348 bradbury's workmen's compensation law
Distinction between "injury" and "accidental injury"
poisoning. He had been working at the same business for
twenty-two years, and last September lost his wife. It was
evident that the shock of the loss of his wife, his age, and other
physical conditions surrounding the case caused lowered
vitality which brought on this attack of acute lead poisoning.
TJie arbitrators will probably allow the man the disability
for personal injingr under the Act, and the case will be carried
to the Supreme Judicial Court for decision.
"There are a number of other cases in regard to the ques-
tion of tuberculosis as a personal injury. The settlement
of these cases will present the most serious difficulty. In one
case, a boy twenty years old, working at his occupation of
outside painting, was thrown a distance of thirty feet to the
ground. He had contusion of the hip and scratches of the
neck, chest and back. He was incapacitated from labor for
three weeks and two days, and was paid therefor medical
and hospital bills for two weeks, and one week and two days'
disability compensation. He returned to work for six weeks,
and was suddenly stricken with hemorrhage of the lung which
proved to be secondary tuberculosis well advanced, the
process having extended as low as the third rib. The ques-
tion is raised in this case and in another case, in which death
occurred from pneumonia, that the lowering of vitality due
to the injury lighted up a dormant lesion which otherwise
might not have affected the individual for years, if ever. In
consequence, the existing disability from tuberculosis in one
case, and of death from pneumonia in the other, covering
this special point, is claimed to have arisen out of and is due
to the employment.
"It is probable, as these cases occur and a broad inter-
pretation of the words 'personal injury' made, which will
grant compensation in some cases, when proved, and refuse
it in others, that the" insurance companies may ultimately
be driven to the necessity of making tests after every injury
to find the condition of the injured person's resistance, to
determine claims of this character; in other words, if the
theoretical physiologic balance is disturbed because of an
accident, and an attack of germ disease follows, and this is
allowed as a basis for disability compensation, it will neces-
INJURIES ARISING OUT OF EMPLOYMENT 349
Distinction between "injury" and "accidental injury"
sarily follow that all of the consequences of an injury must
be regarded as a just claim for disability under the law.
"An argument which will probably be made before the
Supreme Court, however, and which has much force, is that
the word 'injury' in our statute means only those injuries
or diseases which arise from a particular occurrence or occa-
sion. See Brintons, Limited, v. Turvey; 7 Minton-Senhouse
W. C. C. 1 (Anthrax); 1 Steel v. Cammell, Laird & Company;
7 Minton-Senhouse W. C. C. 9 (lead poisoning).2
"Under the circumstances, while it is exceedingly difficult
to give a direct and specific answer to your letter, you may
perhaps get an idea from the above how the Massachusetts
Industrial Accident Board is attempting to work out the law.
None of these decisions, of course, will be of binding effect
until they are finally passed upon by the Supreme Judicial
Court." ,
To warrant the granting of compensation under the New
Jersey Workmen's Compensation Act it must appear that
the employe's death was caused by "accident" arising "out
of" and "in the course of" his employment. Bryant v.
Fissell, 000 N. J. Law, 000; 86 Atl. Rep. 458.
The House of Lords has held that the word "accident"
is to be used in the popular and ordinary sense of the word
as denoting an unlooked-for mishap or an untoward event
which is not expected or designed. Fenton v. Thorley & Co.
(1903), A. C. 443; 5 W. C. C. 1. In the last-mentioned case
the workman had by overexertion ruptured himself in try-
ing to turn the wheel of a machine in the ordinary course of
his employment, and it was held by the House of Lords that
he had suffered an accident within the meaning of the Act. 3
1 See page 358.
2 See page 373.
'Under the British Act the meaning of the word "accident," when
applied to ascertain facts has been decided by the House of Lords to be a
question of law. Fenton y. Thorley & Co., 19 T. L. R. 684. The ques-
tion of whether an employe's injury is an accident within the Workmen's
Compensation Act is a mixed one of law and fact but when applied to as-
350 bradbury's workmen's compensation law
Injuries without external manifestation
Within the meaning of the New Jersey Workmen's Com-
pensation Act an accident is an unlooked for and untoward
event which is not expected or designed. Bryant v. Fissell,
000 N. J. Law 000; 86 Atl. Rep. 458.
In relation to an accident insurance policy the United
States Supreme Court has defined the term "accidental"
as follows: "The term 'accidental' was used in the policy in
its ordinary, popular sense, as meaning happening by chance;
unexpectedly, or as not expected. If a result is such as
follows from ordinary means, voluntarily employed, in a
not unusual or unexpected way, it cannot be called a result
effected by accidental means. But if, in the act which pre-
cedes the injury, something unforeseen, unexpected, unusual
occurs which produces injury, then the injury has resulted
through accidental means." Mutual Accident Assn. v.
Barry, 131 U. S. 100, 121; 9 Sup. Ct. R. 755; 33 L. Ed. 60.
2. Injuries without external manifestation.1
Evidence that an employe was strong and healthy up to
the time he complained of a hurt received while at work on
heavy lifting, and that he died suddenly a few days there-
after for no other assignable cause, is sufficient to show that
he sustained some external injury, although there were no
external manifestations thereof. Re S. W. Powers, Op. Sol.
Dep. C. & L., p. 176.
A workman was employed in a millrace, where he had to
work for a fortnight up to his knees in water. As a result
he contracted inflammation of the kidneys and died. It was
held that this was a personal injury by accident. Sheeran v.
F. & J. Clayton & Co. (1909), 44 Irish L. T. 52; 3 B. W. C. C.
583.
certained facts it becomes one of law. Bryant v. Fissell, 000 N. J. Law,
000; 86 Atl. Rep. 458.
1 From the table of contents of this article it will be seen that a number
of cases are discussed relating to injuries as to which there were no "ex-
ternal manifestations." This paragraph merely calls attention to the gen-
INJURIES ARISING OUT OF EMPLOYMENT 351
Injuries due to gradual wearing or constant use of particular members
3. "Bends."
It has been held that "bends" (a condition brought
about by working in compressed air), was in the nature of
a rupture or lesion of some one of the internal organs, due
to the change between high and normal atmospheric pressure,
and was therefore an accidental injury entitling a workman
to compensation under the Federal Act. Re William Murray,
Op. Sol. Dep. C. & L., p. 201.
4. Injuries due to gradual wearing or constant use of par-
ticular members.
Contracting "beat hand" or "beat knee," a miner's dis-
ease or injury caused by the gradual process of continued
friction, is not an accident. Marshall v. East Holywell Coal
Co. (1905), 7 W. C. C. 19.
Applicant was pinning shirts while in the employ of the
defendant. The continual pressing against the heads of
the pins of the side of the right forefinger resulted in the finger
becoming hard. A white spot appeared, and the finger
grew steadily worse. Pus developed and applicant was
totally disabled for about three weeks, at the end of which
time she recovered so as to be able to do light housework.
Defendant refused payment on the ground that there was no
evidence to connect the alleged injury with an accident
growing out of the employment. This was one of the difficult
cases that come before Industrial Accident Boards. Held
that applicant was entitled to recover, because the nature
of her work made it a moral certainty that the injury re-
sulted as claimed. She was denied reimbursement for medi-
cal and surgical treatment because she did not afford the
defendant an opportunity to furnish the same. She was
awarded the sum of $24.38 for two weeks' total indemnity
and for ten weeks' partial indemnity. Smith v. Munger
Laundry Co., Cal. Indus. Ace. Bd., Nov. 19, 1913.
eral principle, leaving the discussion of specific injuries to their appropriate
titles.
352 bradbury's workmen's compensation law
Germ or poison entering system through break in skin
A workman gradually acquired paralysis of his right leg
through the strain of riding a heavy carrier tricycle for his
employers. At the end of five years the condition incapac-
itated him from work. It was held that the paralysis was
not a personal injury by accident, and that the workman
was not entitled to compensation. Walker v. Hockney
Brothers (1909), 2 £. W. C. C. 20.
Rectal abscess and blind fistula alleged to have been
brought on by being compelled to sit on cold iron are
not such injuries as entitle the employe1 to compensation
under the Federal Act. Re Andrew Wilkes, Op. Sol. Dep.
C. & L. 175.
See also the cases of Elizabeth Hewitt, cited ante, page 343,
/. V. Trammell, cited ante, page 344, and M. A. Crellin,
cited ante, page 344.
6. Germ or poison entering system through break in skin.
A workman has been held to have suffered an injury by
a germ or poison getting into the system through a break
in the skin. Higgins v. Campbell & Harrison and Turvey v.
Brintons Limited (1904), 1 K. B. 328; 6 W. C. C. 1; affirmed
by the House of Lords (1905), A. C. 230; 7 W. C. C. 1.
Blood poisoning through use of a hypodermic needle is an
accident. Bailey v. Interstate Cas. Co., 8 App. Div. 127;
40 N. Y. Supp. 513, aff'd, 158 N. Y. 723; 53 N. E. 1123.
Shortly after a fall of coal from the roof exactly where a
collier was working, he complained that his foot hurt him.
Twelve days later he died of tetanus. Two days after the
fall he showed his foot to his wife, who found it swollen and
with a sore on the outer side. Six days after the fall his
foot was seen by a physician, who found an abrasion on the
outer side and a scar on the sole; both wounds were healing
and in much the same state. On the day before his death
there was no trace of the wound on the side of the foot, but
the small scar on the sole of the foot was still to be seen —
healed. The County Court Judge found that there was an
INJURIES ARISING OUT OF EMPLOYMENT 353
Germ or poison entering system through break in skin
accident at the colliery as a result of which twelve days later
the collier died from tetanus. It was held on appeal that
there was evidence to support the finding. Stapleton v.
Dinnington Main Coal Co. (1912), 5 B. W. C. C. 602.
Where death results from erysipelas, which follows as a
natural, though not as a necessary consequence of an acci-
dental wound, upon the cheek, it may be deemed the prox-
imate result of the wound and not of the disease, within the
requirements of an accident policy that death must result
solely from accidental means. Caldwell v. Iowa State Travel-
ing Men's Association, 000 Iowa 000; 136 N. W. Rep. 678.
An infection of the hand and a secondary infection of the
leg, resulting from an abrasion of the skin and the accidental
introduction of a foreign substance, is an injury within the
meaning of the Federal Act. Re L. B. Green, Op. Sol. Dep.
C. & L., p. 199. In the last-mentioned case the workman
was overhauling a pump from the United States Ship "Vig-
ilant" when his hands became infected. The attending
physician made an incision and removed pieces of hard ma-
terial resembling spicula of coral. It appeared that the
pump had come from a vessel which had been in service in
Oriental waters, which accounted for the foreign material.
It was held that under such circumstances he was entitled
to compensation.
Applicant was unloading sugar. In the middle of the
morning he complained that his left arm was hurting him and
showed his associates that it was swollen and stiff. On the
following morning he was unable to work and had to proceed
to San Francisco for medical treatment, but the arm suppur-
ated and applicant was disabled for 43/7ths weeks. His
application for compensation was denied on the ground that
the injury was the result of an occupational disease, com-
monly known as "sugar poisoning," which does not come
within the provisions of the act and that therefore no per-
sonal injury was accidently sustained by the applicant.
Held that there was no evidence to sustain the contention
23
-354 bradbuey's workmen's compensation law
Germ or poison entering system through break in skin
that disability resulted from an occupational disease, but
that the evidence and the circumstances warranted the
decision that applicant's arm had been scratched by one of
the sharp corners of a bag of sugar. He was awarded
$44.57 for the period of temporary total disability and also
the cost of medical and surgical treatment not to exceed
the sum of $100.0(1, Miller v. California Stevedore and Ballast
Co. and The Fidelity and Deposit Co., Cal. Indus. Ace. Bd.,
Oct. 2, 1913.
Applicant was injured while in the employ of the defend-
ant. He had to split a piece of fire-wood without an axe,
using a pick, which caused a sliver some 10 feet long and 6
inches wide at one end and tapering to a point at the other,
to "bark" his left leg just above the ankle. The accident
was not at first reported because it was not considered
serious. After working two or three days the leg became so
swollen and so painful that he was unable to do any work.
The medical testimony corroborated the statement of the
applicant. Erysipelas developed, followed by ulcers. Held
that there was an accident and that applicant was entitled
to compensation under the Law. The amount awarded was
$108.70 for a period of 92/7 weeks. Nash v. General Petro-
leum Co., Cal. Indus. Ace. Bd., June 26, 1913.
A gardener while digging in his employer's garden, was
injured by a nail piercing his foot through his boot and died
subsequently from tetanus. It was held that the accident
arose out of and in the course of his employment, and his
dependents were entitled to compensation. Walker v.
Mullins (1908), 42 Irish L. T. 168; 1 B. W. C. C. 211.
A collier died of blood poisoning due to an abscess of his
knee. There was no evidence as to how the abscess was
caused. His work was in a very narrow seam, and neces-
sitated his working on his knees. It was held that there was
no evidence of personal injury by accident arising out of
and in the course of the employment. Howe v. Fernhill
Collieries (1912), 5 B. W. C. C. 629. But see Thompson v.
INJUKIES AKISING OUT OF EMPLOYMENT 355
Germ or poison entering system through break in skin
Ashington Coal Co. (1901), 3 W. C. C. 21, where a miner
was injured by a piece of coal digging its way under the
skin of his knee and it was held that this was an accidental
injury entitling the workman to compensation.
A workman knocked his elbow at work, and afterwards
suffered from eczema in the forearm. On the medical
evidence the judge found that the eczema was not caused by
the knock and compensation was refused. Swinbank v.
Bell Bros. (1911), 5 B. W. C. C. 48.
There was a dispute between the medical experts as to
whether or not a wound in the hand on April 17th could
cause erysipelas of the face on July 7th, following. The medi-
cal referee was asked the abstract question as to whether or
not the diseased organisms could have been latent for so
long a time. He said it was possible that the organisms
might have lain dormant and subsequently sprung to life
if the injured workman was in a devitalized condition. The
County Court judge held that the deceased man died from
personal injury by accident, but the appellate court held
that there was no evidence to justify the finding. Hugo v.
H. W. Larkins & Co. (1910), 3 B. W. C. C. 228.
A miner returned from a night shift with a red patch on
his wrist. This was found to be the sign of commencing
blood poisoning, from which he died. The evidence showed
that this blood poisoning was due to an abrasion on his
thumb. There had been a fall of stone in the mine during
his shift, about four hours before he got home, and the
dependent claimed compensation on the ground that the
abrasion had been caused at work during this shift. The
medical evidence showed that twelve hours at the least, and
probably two or three days, must have elapsed between the
abrasion and the appearance of the red patch. It was held
that there was no evidence to support the inference that
the abrasion occurred at work and compensation was refused.
Jenkins v. Standard Colliery Co. (1911), 5 B. W. C. C. 71.
An injury caused to one of an imperfect physical condi-
356 bradburt's workmen's compensation xaw
Skin affections from acids and other irritants
tion while working in the ordinary way with the usual
materials and appliances is not an inj ury by accident. There-
fore, where an engine fitter was fixing steampipe joints for
which purpose red lead was used, and in consequence of a
blister on his finger the red lead poisoned the finger, it was
held that the injury was not caused by an accident. Walker
v. Lilhshall Coal Go. (1900), 81 L. T. 769; 2 W. C. C. 7.
Where a workman was incapacitated by reason of the
pressure of a boot which had become too tight for him and
his foot became sore and blood poisoning set in, it was held
that the accident did not arise out of the employment
and compensation was refused. White v. Sheepwash (1910),
3 B. W. C. C. 382.
A railway fireman cut his finger at home. Blood poison-
ing supervened and necessitated the amputation of the finger.
The County Court Judge found that the poison germs en-
tered with the dirty oil and coal to which danger the man
was specially exposed, and that the accident arose out of
and in the course of the employment. On appeal the judg-
ment of the County Court was reversed on the ground that
there was no evidence to support the finding, and compensa-
tion was refused. Chandler v. Great Western Railway Co.
(1912), 5 B. W. C. C. 254.
6. Skin affections from acids and other irritants.
It is impossible to harmonize the various adjudications
on this subject. The American cases favor the rule that
such injuries entitle the workman to compensation. The
British cases are conflicting.
A workman was engaged in the examination of cloth goods
in the bleaching room of the defendant's factory to discover
any foreign particles or things of a physical nature that
might have become involved in the goods through the pro-
cess in going through the works, and thus cause damage to
the goods. The cloth was moist from the treatments re-
ceived in the several processes of the works. The workman
INJURIES ARISING OUT OF EMPLOYMENT 357
Skin affections from acids and other irritants
contended that after ten days he noticed a rash appearing
upon his hands which itched and spread to his eyes and other
portions of his body, and that because of this condition he
was forced to leave his employment. He also contended that
the cause of the condition was the contact of the damp goods
with his body. It appeared that the cloth was treated in a
solution of chemicals consisting of certain corrosives such as
sulphuric acid, chloride of lime, lime water and carbonated
soda. It was found by the Common Pleas Judge that the in-
jury complained of was caused by the conditions surround-
ing the workman's employment and that he was entitled to
compensation. Riker v. Liondale Bleach Dye and Print
Works, 36 N. J. Law J. 305.
While an employ^ working on a steamship was removing
an old water closet his face and hands were poisoned by com-
ing in contact with loose cement, iron rust, old dry lead and
probably some disinfectant, and it was held that he was
entitled to compensation for the time he was disabled. Re
F. J. Cournoyer, Op. Sol. Dep. C. & L., p. 582.
A scullion in a hotel was the subject of a disease affecting
his skin and making it abnormally sensitive. On the day he
commenced work he washed up crockery for a number of
hours in a tank containing hot water, soft soap and caustic
soda. His hands became greatly inflamed, his nails came off,
and he was disabled for four and a half months. The Court
of Appeal of England held that this was an accident and the
mere circumstance that a perfectly healthy man would not
have met with it was no answer at all. Dotzauer v. Strand
Palace Hotel (1910), 3 B. W. C. C. 387.
A workman, employed to dip rings into a basin of carbon
bisulphide with his fingers, was affected with eczema caused
gradually by the exposure to fumes or splashes from the
chemical. It was held that this was not an accident and
compensation was refused. Evans v. Dodd (1912), 5 B. W. C.
C. 305.
Dermatitis brought on by washing out ink cans with a
358 bradbury's workmen's compensation law
Contracting infectious and contagious diseases; anthrax; glanders
solution of caustic soda without the use of proper gloves is
not an accident. Cheek v. Harmsworth Bros. (1901), 4 W.
C. C. 3.
Where a workman had eczema which he contended had
been aggravated by coming in contact with salt water, while
working about a ship, the solicitor decided, on somewhat
conflicting evidence, that the eczema had not been ag-
gravated and compensation was denied. The question of
whether or not compensation would have been granted had
it appeared that the eczema had been aggravated by the salt
water, was not decided, but the inference to be derived from
the case is that under such circumstances compensation
would have been granted. Re C. B. Scanlan, Op. Sol. Dep.
C. & L., p. 590; s. c. p. 591.
7. Contracting infectious and contagious diseases; anthrax;
glanders.1
If a germ causes a bodily ailment without an abrasion of
the skin the general rule is that the result is a disease and not
an accidental injury, within the meaning of an accident
insurance policy. Bacon v. U. S. Mutual Accident Assn.,
123 N. Y. 304. In the last mentioned case the deceased died
from anthrax and it was held that the cause of death was a
disease and not an accident. A contrary ruling has been
made under the British Compensation Act, where a work-
man contracted the disease of anthrax by a germ settling
on his eye while sorting wool which was infected with an-
thrax. It was held that he had suffered injury by accident
and was entitled to compensation. Brintons, Limited, v.
Turvey (1905), A. C. 230, 7 W. C. C. 1. See also H. P. Hood
& Son v. Maryland Cos. Co., 206 Mass. 223; 92 N. E. 329,
holding that contracting glanders from handling hides was
an accident within the meaning of an accident insurance
policy.
1 See also cases of specific diseases like pneumonia, etc., post and ante.
INJURIES ARISING OUT OF EMPLOYMENT 359
Traumatic diseases without external infection
8. Diseases due to traumatism but without direct external
infection or contagion; tuberculosis.
Under a policy covering death as a result of accidental
injuries caused solely by external, violent and accidental
means, the insurer is liable if death was caused by a disease
which was itself caused by external, violent and accidental
bodily injuries. . Armstrong v. West Coast Life Ins. Co. 000
Utah 000; 124 Pac. Rep. 518.
Evidence of a slight blow on the jaw is not sufficient to
establish that tuberculosis of the cervical glands causing in-
capacity is an injury within the Federal Act. Be Richard
Hicks, Op. Sol. Dep. C. & L., p. 179.
Where a workman was injured by an explosion and he con-
tended that the injury which he received from the accident
was responsible for tuberculosis which he subsequently con-
tracted, it was held, on conflicting testimony, that the work-
man had not sustained the burden of showing that the tu-
berculosis was due to the injury received from the accident.
Compensation was awarded for the direct injuries but not
for the disability due to the tuberculosis. Feldman v. West-
inghouse Electric and Min. Co., Essex Common Pleas, Jan.
1913; 36 N. J. Law J. 48. In the last mentioned case it
was assumed that if the workman could have shown that the
tubercular condition was due to the injury which he received
that he would have been entitled to have received com-
pensation by reason of the disability caused by the tuber-
culosis.
A furniture polisher received an injury to his ankle which
developed into tubercular meningitis several months later.
The medical experts stated that local tuberculosis was a
predisposing disease causing the death of the employe. It
was held that the widow was entitled to compensation.
Black v. Travelers Insurance Co., Mass. Indus. Ace. Bd.
Applicant was injured while working in a mine. The fifth
rib on the right side was broken. Applicant worked for a
day or two after receiving the blow from the cave-in. Later
360 bradbury's workmen's compensation law
Injuries from falls caused by fits, vertigo or other like causes
he discontinued work. A physician's examination showed
the fracture and he was provided with medical attention
and was paid compensation. Subsequently, he returned to
work and made a demand for the payment of doctor bills
presented by other physicians outside the employ of the
defendant company. This case presented a difficult situa-
tion, inasmuch as* the applicant and his friends firmly be-
lieved that the cave-in and the fractured rib caused a tuber-
cular condition, and a claim was made for compensation
accordingly. Held that the great preponderance of medical
testimony (eight doctors examined applicant) showed that
there was no connection between the fractured rib and the
subsequent illness, and awarded applicant $26.37 additional
compensation, the same being the unpaid balance of the
total sum of $40.83 due. Pendo v. Mammoth Copper Mining
Co., Cal. Indus. Ace. Bd., May 20, 1913.
Applicant contracted a bone felon on the thumb of his
right hand and was disabled for six weeks. He claimed that
the felon resulted from the dropping of a 100-lb bolt or rod
upon his thumb. . Held that the burden of proof is upon the
applicant to establish the facts and that in this case the
evidence was conflicting and inconclusive, and therefore
compensation was denied. Giandini v. General Construction
Co., Cal. Indus. Ace. Bd., May 17, 1913.
9. Injuries from falls caused by fits, vertigo or other like
causes.
Disability resulting from disease directly due to a phy-
sical injury of an accidental nature, or lighted up thereby,
is an injury within the meaning of the act. Re Washington
Ellmore, Op. Sol. Dep. C. & L., p. 207. In the last-mentioned
case the claimant was attacked with vertigo and collapsed,
falling forward on a machine upon which he was employed
and was injured. He developed inflammatory rheumatism,
which the physician certified might have been latent and
made active by the fall. It was held that this was an injury
INJURIES ARISING OUT OF EMPLOYMENT 361
Injuries from falls caused by fits, vertigo or other like causes
in the course of the employment and compensation was
awarded.
The claimant in another case was employed as a night
watchman in the camp of the Reclamation Service, and at
4 o'clock in the morning, while standing or leaning over a
camp fire to get warm, the night being very cold, he lost
consciousness from epilepsy, and fell into the fire and was
badly burned. It was held that this was an injury within
the meaning of the act, and that the employe* was entitled
to compensation. Re E. B. Clements, Op. Sol. Dep. C. & L.,
p. 190. The Solicitor cited as authorities for the conclusion
reached the cases of Wicks v. Dowell & Co., 2 K. B. 225; 1
Meyer v. Fidelity Co., 96 Iowa 378; Interstate Casualty Co. v.
Bird, 18 Ohio Cir. Ct. 488. The Solicitor also stated that
his decision was inconsistent with a previous opinion rendered
in the Lowd case (not reported), which latter opinion was
rendered February 4, 1909, but added: "The question in-
volved has now been carefully re-examined in the light of
anthorities not then available, and I am now satisfied that
the reasoning employed in the earlier case was erroneous."
Where a laboring man working near an open hatchway
was seized with epileptic fits and fell down the hold, it was
held that this was an accidental injuiry, even though the
having of the fit itself, if it had taken place under circum-
stances such as riot to cause an injury, would not have been
an accident. Wilkes (or Wicks) v. Dowell & Co. (1905),
2K.B.225;7W.C.C. 14.
An employe had an epileptic fit and fell from his wagon,
fracturing his skull, and died from the injury. It was held
that his mother was entitled to compensation as this was an
injury arising out of and in the course of the employment.
Driscollv. Employers' Liability Assurance Corporation, Mass.
Indus. Ace. Bd.
A school janitor was sent on a message on a very hot day.
1 See this case cited below.
362 bradbury's workmen's compensation law
Injuries from falls caused by fits, vertigo or other like causes
He fainted on the street from the heat and fell backwards,
striking his head on the pavement, subsequently dying
from the effects of the injury. It was held that this was
not an injury arising from the employment. Rodger v.
Paisley School Board, 1912, 49 Sc. L. R. 413; 5 B. W. C. C.
547.
A carman fell ffbm his van and sustained injuries. He
died three weeks later. No evidence was produced to show
the connection between the accident and death, the doctor
who had attended the man being abroad. It was held, re-
versing the decision of the County Court judge, that there
was no evidence that the death was due to the accident.
Honor v. Painter (1911), 4 B. W. C. C. 188.
A workman fell from a cart and was injured. He died
nine days afterward. The only medical evidence produced
was to the effect that there was no connection between the
accident and the death. The County Court judge, however,
found that death was due to the accident and awarded
compensation. It was held on appeal that the dependent
had not discharged the onus of proving that death was due
to the accident. Brown v. Kidman (1911), 4 B. W. C. C.
199.
A workhouse master, who suffered from tuberculosis,
while seated on steps leading to his private room, had a fit
of coughing which made him giddy, and he fell down the
steps and broke a rib, which caused his death from pneu-
monia, about twelve days later. It was held that the ac-
cident did not arise out of the employment and compensation
was refused to the widow. Butler v. Burton-on-Trent Union
(1912) 5 B. W. C. C. 355.
A driver of a coal wagon was about to drive on the scales
to obtain the weight of his load of coal when he fell to the
ground, death being due to natural causes. It was held that
this was not a personal injury within the meaning of the
Massachusetts Act. Lewis v. Globe Indemnity Co., Mass.
Indus. Ace. Bd.
INJURIES ARISING OUT OP EMPLOYMENT 363
Heart diseases
10. Apoplexy.
A workman, in the course of his ordinary and usual em-
ployment, overexerted himself and brought on an attack of
cerebral hemorrhage, and it was held that the occurrence
was an accident within the meaning of the Act. M'Innes v.
Dunsmuir & Jackson (1908), 45 Scotch L. R. 804; 1 B. W.
C. C. 226. See to the same effect, Martin v. Travelers' Ins.
Co., 1 F. & F. 505.
A collier died of apoplexy during working hours in a mine.
The majority of the doctors said that his arteries were in a
very diseased condition, and that apoplexy might have come
upon him when asleep in bed, or when walking about, or
when overexerting himself. The collier's work on that day
was to build a pack, but there was no evidence that apo-
plexy came upon him when he was incurring a strain. It
was held that as the evidence as to the cause of death was
equally consistent with an accident and with no accident,
and the onus of proving that it was due to accident rested
on the applicants, in this case that onus had not been dis-
charged by them. Barnabas v. Bersham Colliery Co. (1910),
4 B. W. C. C. 119.
11. Heart diseases.
A workman collapsed at his work, and died the same day
from angina pectoris. The evidence was that his heart was
in a bad state, and that the attack might have been caused
by exertion, or might have been due to natural causes. It
was held, reversing the decision of the County Court judge,
that the dependents had not discharged the onus of proving
that the accident arose out of the employment. Hawkins
v. Powell's Tillery Steam Coal Co. (1911), 104 L. T. 365;
4 B. W. C. C. 178.
While a workman was driving a cart the horse fell, the
shaft broke, and the man apparently was thrown out. He
went to a farm to borrow another cart; being unsuccessful
in this he walked away with the horse and was subsequently
364 Bradbury's workmen's compensation law
Heart diseases
found dead on the road at the top of a hill. The medical
evidence was that he died from syncope, but that it was
impossible to say for certain what had caused the syncope.
The judge held that the dependent had not discharged the
onus of proving that the death was caused by the accident.
This decision was affirmed on appeal. Powers v. Smith
(1910), 3 B. W. C? C. 470.
A workman who, while engaged in work which was too
heavy for him, felt a sudden pain upon his chest and a few
days afterward became totally incapacitated. On an appli-
cation for compensation the arbitrator found as a fact that
the cause of the incapacity was a cardiac breakdown, due to
the fact that the work in which the workman had been en-
gaged was too heavy for him and that he was not injured
by any sudden jerk; that the repeated excessive exertions
strained the workman's heart until it was finally over-
strained. Under these circumstances, it was held that the
incapacity was not due to a personal injury by accident
within the meaning of the Act. Coe v. Fife Coal Co. (1909),
46 Scotch L. R. 325; 2 B. W. C. C. 8.
A workman had for years been suffering from progressive
heart disease. While hurrying to the station with a parcel,
in the course of his employment, he was taken ill and died.
It was held that the death was attributable to the disease
and that there was no evidence of accident within the mean-
ing of the Act. O'Hara v. Hayes (1910), 44 Irish L. T. R. 71 ;
3 B. W. C. C. 586.
A workman suffering from an advanced aneurism of the
aorta was doing his work in the ordinary way by tightening
a nut with a spanner. This ordinary strain caused a rupture
of the aneurism, resulting in death. The County Court
judge, on conflicting evidence, found that the workman's
death resulted from personal injury by accident within the
meaning of the Act. It was held in the House of Lords that
there was evidence on which the County Court judge was
justified in so deciding. Clover Clayton & Co. v. Hughes
INJURIES ARISING OUT OF EMPLOYMENT 365
Heart diseases
(1910), A. C. 242; 3 B. W.C. C. 275, aff'g 2 K. B. 798; 2 B. W.
C. C; 15. The above-entitled case was considered at great
length in the various opinions written in the House of Lords.
Lord Loreburn wrote the principal opinion, and in the
course of it he said: "In this case a workman, suffering from
an aneurism in so advanced a state of disease that it might
have burst at any time, was tightening a nut with a spanner,
when the strain, quite ordinary in this quite ordinary work,
ruptured the aneurism, and he died. • This is a mere sum-
mary of the facts. * * * In what I am about to say I take the
facts as he found them in extenso and rely upon them. * * *
It may be said, and was said, that if the Act .admits of a
claim in the present case, every one whose disease. kills him
while he is at work will be entitled to compensation. I do
not think so and for this reason. It may be that the work
has not, as a matter of substance, contributed to the accident,
though in fact the accident happened while he was working.
In each case the arbitrator ought to consider whether, in
substance, as far as he can judge on such a matter, the
accident came from the disease alone, so that whatever the
man had been doing it would probably have come all the
same, or whether the employment contributed to it. In
other words, did he die from the disease alone or from the dis-
ease and employment taken together, looking at it broadly?
Looking at it broadly, I say, and free from over nice con-
jectures: Was it the disease that did it or did the work he
was doing help in any material degree? In the present case
I might have come to a different conclusion on the facts had
I been arbitrator, but I am bound by the findings, if there
was evidence to support them. It is found that the strain
contributed to the death. There was evidence on which the
learned judge was entitled so to find, as I respectfully think,
and I, therefore, advise your Lordships to affirm the order
of the Court of Appeal." There were two dissenting opin-
ions filed by Lords Arkinson and Shaw.
Where an employe" complained of an injury to his heart by
366 bradbury's workmen's compensation law
Sprains, strains and ruptures (hernia)
reason of an accident which caused a "sudden twisting of
the body", and the yard surgeon certified merely that it
was "highly improbable" that the sudden twisting of the
body could have caused the cardiac condition noted on
recent examination, but it appeared that the employe had
actually been accidentally injured more or less severely, it
was held under the^circumstances that compensation should
be awarded. Re P. C. Weil, Op. Sol. Dep. C. & L., p. 543.
A foreman carpenter received an electric shock which
threw him against the work bench with such violence that
it caused a sudden and unusual acceleration, force and
pressure in. the action of the heart, resulting in paralysis,
and it was held that this was a personal injury within the
meaning of the Massachusetts Act. Milliken v. U. S.
Fidelity & Guar. Co., Mass. Indus. Ace. Bd., Rep. Cas., p. 187.
The death of an employe having chronic valvular disease
of the heart was caused by the shock of the fall of a heavy
wheel upon him, and it was held that the fatality was due
to a personal injury arising out of and in the course of the
employment. Welch v. Employers' Liability Assurance
Corporation, Mass. Indus. Ace. Bd.
12. Sprains, strains and ruptures (hernia).
An internal injury, caused to a person in a normal state
of health, by a fortuitous and unforeseen event, in the usual
course of his business, is an accident. So held in a case where
a workman, while lifting a heavy beam, suddenly tore
several fibers of the muscles of his back. Boardman v. Scott
& Whitworth (1901), 3 W. C. C. 33, aff'd (1901), 85 L. T.
502; 4 W. C. C. 1.
A man was employed in moving heavy planks from one
pile to another. During the night the planks were all frozen
together so that there was some difficulty in separating them.
The lower planks in the pile were more firmly stuck together
than those above, but the man was not aware of this. He
sustained an injury owing to the difficulty of moving one of
INJURIES ARISING OUT OF EMPLOYMENT 367
Sprains, strains and ruptures (hernia)
the lower planks. It was held that there was evidence of
an accident. Timmins v. Leeds Forge Co., 2 W. C. C. 10.
A workman in his master's field, finding that the grain had
been trodden down by bullocks, stooped to raise it and
sprained his left leg; or, as the workman explained it, "wrung
his left leg." This injury subsequently developed into
traumatic phlebitis (inflammation of the walls of the veins
from a physical injury) and it was held that this was a per-
sonal injury by accident within the meaning of the Compen-
sation Act. Purse v. Hayward (1908), 1 B. W. C. C. 216.
In the last-mentioned case the court remarked that
there was "no sound distinction between torn muscles or
ruptured fibres and fractured bones."
A carpenter strained himself moving a heavy radiator
and was afterwards operated upon, death being caused by
appendicitis and intestinal obstruction which supervened.
It was held that this was an injury within the meaning of
the Massachusetts Act and the widow was entitled to com-
pensation. McGuigan v. Maryland Casualty Co., Mass.
Indus. Ace. Bd.
Compensation was granted where it appeared that the
workman had suffered "severe straining of lumbar muscles
and bruising of the third and fourth vertebrae." Gross v.
Marshall Butters Lumber Co., Mich. Indus. Ace. Bd., Oct. 15,
1913; The Indicator, Oct. 20, 1913, at page 417.
A workman, rising from a kneeling position, in which he
had been at work, felt a pain in his knee. The cartilage was
found to be ruptured. He had wrenched his knee , three
years before, and had been incapacitated for a time, but had
thereafter worked without difficulty until this occasion, al-
though at times he felt pain when getting up from kneeling.
It was held that the workman had suffered injury by acci-
dent, and was entitled to compensation. Borland v. Watson,
Gow & Co. (1911), 49 Sc. L. R. 10; 5 B. W. C. C. 514.
Rupture caused by overexertion in the course of a man's
work is an accident within the meaning of the Compensa-
368 bradbury's workmen's compensation law
Sprains, strains and ruptures (hernia)
tion Act. (House of Lords), Fenton v. /. Thorley & Co.
(1903), 5 W. C. C. 1. The court disapproved of the cases
of Hensey v. White (1900), 1 Q. B. 481; 2 W. C. C. 1; Roper
v. Greenwood (1901), 83 L. T, R. 471; 3 W. C. C. 23, and ap-
proved of the decision of the Court of Sessions in Scotland
reported in the case of Stewart v. Wilsons & Clyde Company
(1903), 5 Falc. 120*. The court also cited in support of the
doctrine announced the following American cases: United
States Mutual Accident Ins. Ass'n v. Barry (1888), 131 U. S.
100, and North American Life & Accident Ins. Co. v. Bur-
roughs, 69 Penn. 43.
A workman who was slightly ruptured at the time he
entered the employer's service, in the course of his work
had to subject himself to an unusual though not to a unique
strain. The result of this strain was to increase the rupture
and incapacitate the workman from following his employ-
ment. It was held that although from a purely medical
or surgical view, the injury could not be said to be an un-
toward or unexpected event, it was nevertheless an acci-
dent within the meaning of the Act. Fulford v. Northfleet
Coal & Ballast Co. (1907), 1 B. W. C. C. 222.
A workman who ruptured himself while lifting some
planks in the usual course of his employment was held to
have* suffered an injury by accident. Timmins v. Leeds
Forge Co., 16 T. L. R. 521.
A workman who had been operated on for a hernia sub-
sequently was compelled to wear a truss because of the
reappearance of the hernia. Several months after he began
wearing the truss, while he was driving cows over some
moorland country the rupture came down and became
strangulated. He was operated upon again but died from
exhaustion. It was held that there was no evidence to
support an inference that the deceased met with an acci-
dent. Walker v. Murrays (1911), 48 Scotch L. R. 741; 4
B. W. C. C. 409.
The word "accident" involves the idea of something
INJURIES ARISING OUT OF EMPLOYMENT 369
Sprains, strains and ruptures (hernia)
fortuitous and unexpected. A man who was not in a sound
condition of health injured himself when doing his ordinary
work which was somewhat harder than usual. It was held
that the injury was not caused by accident. Hensey v.
White (1900), 81 L. T. 767; 2 W. C. C. 1.
A man at work called out that he had hurt his back. No
one saw what had happened. He was taken home com-
plaining of pains in the back and stomach. He died a week
later of intestinal obstruction. There was evidence of
previous illnesses and pains in the stomach. It was held
that the onus of proving an accident had not been discharged.
Farmer v. Stafford, Allen & Sons (1911), 4 B. W. C. C. 223.
A woman suffering from an ailment which she knew
would be aggravated by lifting boxes which were too heavy
for her, notwithstanding continued the work and strained
herself. It was held that this was not an accident. Roper
v. Greenwood (1900), 3 W. C. C. 23.
The Washington Industrial Insurance Commission has
made the following general rule in relation to hernia:
"Recent medical texts indicating that hernia (rupture)
ordinarily develops gradually, rarely as a result of accident,
the department rules that a workman in order to be en-
titled to indemnity for hernia must clearly prove:
" (1) The hernia is of recent origin;
" (2) It must have been accompanied by pain;
"(3) It must have been immediately preceded by some
accidental strain in the course of hazardous employment;
"(4) There must be conclusive proof that it did not ex-
ist prior to the date of the alleged injury.
"In case the individual elects to be operated on, the
above facts being established, one month total disability only
will be allowed for recovery with compensation not to ex-
ceed 60% of wages in addition to the scale lump sum.
"In case he does not elect to be operated upon, and the
hernia becomes strangulated in the future, the results from
said strangulation will not be indemnified."
24
370 bradbuky's workmen's compensation law
Inhalation of noxious gases
13. Inhalation of noxious gases.1
Involuntary inhalation of gas has been held to be an ac-
cidental injury within the meaning of a policy insuring an
individual against accidental injury. Paul v. Travelers Ins.
Co., 112 N. Y. 472; Pickett v. Pacific Mut. Life Insurance
Co., 144 Pa. St. 79; Pollock v. United States Insurance Co.,
102 Pa. St. 230; Ignited States, etc., Association v. Newman,
84 Va. 52; Sinclair v. Maritime Passengers Ins. Co., 3 Ellis
& Ellis, 476.
Optic neuritis caused by noxious gases and resulting in
total loss of vision was held to be a personal injury entitling
the employe1 to compensation for total permanent disability
and specific indemnity for loss of eyes. Hurle v. Am. Mut.
Lia. Ins. Co. (Mch., 1914) 000 Mass. 000; 000 N. E. Rep. 000.
A miner employed in a mine died from pneumonia caused
by the inhalation of gas generated by an explosion. It
was held that the death was the result of the accident
within the meaning of the Act. Kelly v. Auchenlea Coal Co.
(1911), 48 Scotch L. R. 768; 4 B. W. C. C. 417.
A workman contracted the disease of enteritis from in-
haling sewer gas in the course of his employment. The
result was to accelerate long standing heart disease, and to
incapacitate the man from work before the time at which
such heart disease would otherwise have incapacitated him.
It was held that this was not a personal injury by accident
within the meaning of the Compensation Act. Broderick
v. London County Council (1908), 1 B. W. C. C. 219.
A caretaker of an empty house was told to lay open the
drains, manholes and cesspools for inspection. He did this
on several occasions in July, and becoming ill, died in the
following October, from poisoning contracted from the
drains. The County Court judge found that it was not
possible to specify the date when he contracted the disease.
It was held that the workman had not died from a personal
See also cases cited ante, pages 343 et aeq.
INJURIES ARISING OUT OP EMPLOYMENT 371
Pneumonia following exposure or traumatism
injury by accident within the meaning of the Act; that a
disease, although arising out of and in the course of the
employment is not a personal injury by accident, if it can-
not be shown to have been contracted at a particular time
and place. Eke v. Sir William Hart Dyke (1910), 3 B. W.
C. C. 482.
A gas fitter inhaled some coal gas, and three days later
suffered from paralysis due to cerebral hemorrhage, from
which he died shortly after. Seven months previously he
had had a transient attack of paralysis from the same cause.
On his death his widow contended that the death was due
to the gas poisoning, but the County Court judge decided
against her. On appeal it was held that it was a question
of fact for the County Court judge to decide. Dean v.
London & North Western Railway Co. (1910), 3 B. W.
C. C. 351.
14. Pneumonia following exposure or traumatism.
An employe got his feet wet in a leaky boat, which was
furnished by his employer, and pneumonia developed as
an after-effect, and it was held that this was a personal
injury under the Massachusetts Act. Stone v. Travelers
Insurance Company, Mass. Indus. Ace. Bd.
A widow of an employe1 whose death was caused by
lobar pneumonia, due to cold and exposure, was held to
be entitled to compensation as this was an injury within
the Massachusetts Act. Milliken v. Travelers Insurance
Co., Mass. Indus. Ace. Bd. (Appeal pending to Supreme
Judicial Court).
A healthy and steady workman was employed to pick
up cotton waste on the decks of a ship in dock. He went to
work at one o'clock and at three p. m. climbed up the ladder
of the hold, apparently in great pain, and he was sent home.
He received medical attention and marks were found on
his ribs. Three days later he developed pneumonia from
which he died. The doctor who attended him attributed
372 BRADBURY'S WORKMEN'S COMPENSATION LAW
Pneumonia following exposure or traumatism
the pneumonia to the injury to his sides. It was held that
there was evidence that the workman had died from per-
sonal injury by accident arising out of and in the course
of his employment. Lovelady and Others v. Berrie (1909),
2B.W.C.C.62.
The dependents of a workman who died of pneumonia
contended that the pneumonia resulted from lowered vital-
ity caused by an accident. The only evidence that there
had been an accident consisted of several inconsistent
statements made by the workman, to various persons, on
the day after the alleged accident, which were admitted
without objection being taken. The medical referee gave
a report that the pneumonia could not have been caused
by the alleged accident. The County Court judge held
that he was not bound to surrender his judgment to the
medical referee, and held that there had been an accident
causing the pneumonia, and so he awarded compensation.
It was held on appeal that there was no evidence that
there had been an accident arising out of and in the course
of his employment. Langley v. Reeve (1910), 3 B. W. C.
C. 175.
Under the Compensation Act relating to certain Federal
employes it has been held that an employe who contracted
pneumonia from becoming overheated, while removing
ashes from a heating plant, was not entitled to compensa-
tion, as this was not an injury within the meaning of the
statute. Re John Sheeran, 28 Op. Atty. Gen. 254; s. c. Op.
Sol. Dep. C. & L. p. 169. The Federal Law is worded very
much like the Massachusetts Act in relation to the "in-
juries" for which compensation is awarded.
Where no causal connection between a chill which an
employe1 received and the pneumonia from which he died
was proved by the claimant for compensation, it was held
that this was not an injury for which compensation could
be awarded. Waiswell v. General Accident Assurance Cor-
poration, Mass. Indus. Ace. Bd.
INJURIES ARISING OUT OF EMPLOYMENT 373
Lead poisoning
15. Lead poisoning.1
Lead poisoning is not an accident. Steel v. Cammell,
Laird & Co. (1905), 7 W. C. C. 9. Nor is an attack of colic
through lead poisoning. Williams v. Duncan (1898), 1 W.
C. C. 123.
Acute lead poisoning is not such an injury as entitles
an employe1 to compensation under the Federal Act. Re
C. L. Schroeder, Op. Sol. Dep. C. & L. p. 172.
Lead poisoning which caused the loss of weight and other
symptoms culminating in a condition of secondary anemia,
which brought about inability to work, was held to be a
personal injury within the meaning of the Massachusetts
Workmen's Compensation Act. Johnson v. London Guar-
antee & Accident Co., Mass. Indus. Ace. Bd. (Appeal pend-
ing to Supreme Judicial Court.)
Lead poisoning is an injury which entitles the workmen
to compensation under the Michigan Workmen's Com-
pensation Act. Adams v. Acme White Lead & Color Works,
Mich. Indus. Ace. Bd., Nov. 3, 1913; The Indicator, Nov. 5,
1913, page 443. In the last-mentioned case the Board said:
"It seems to me established under the English cases that lead
poisoning is not an accident, but is an occupational disease.
It seems to follow from this that unless the Michigan Work-
men's Compensation law is broad enough to include and
cover occupational diseases the applicant's claim in this case
must be denied. The controlling provision of the act on
this point is found in Section one of Part two, and is as fol-
lows:'If an employe * * * receives a personal injury arising
out of and in the course of his employment, he shall be entitled
to compensation,' etc. It will be noted that the above lan-
guage does not limit the right of compensation to such
persons as receive personal injuries 'by accident'. The
language in this respect is broader than the English act,
and clearly includes all personal injuries arising out of and
in the course of the employment, whether the same are
1 See next succeeding paragraph.
374 BRADBURy's WORKMEN'S COMPENSATION LAW
Copper poisoning
caused 'by accident' or otherwise. It is equally plain that
lead poisoning in. this case in fact constitutes a personal in-
jury, and that such personal injury was of a serious and deadly
character. The Board is therefore of the opinion that the
section of the Michigan Act above quoted is broad enough
to cover cases of lead poisoning such as the one in question."
It was contended in the last-mentioned case that the title
of the Michigan Act provided for compensation for per-
sonal injuries when they were received "by accident" and
that in so far as the body of the act was broader than the
title it was unconstitutional. The Board further held that
this point was not well taken and awarded compensation.
Under a claim for compensation by a widow, on the ground
that the death of her husband had been caused by lead
poisoning, the evidence showed that the paint furnished
by the employers contained only a small quantity of lead,
and that only in the form of lead sulphate, which does not
cause plumbism, or lead poisoning. It was held that the
widow was not entitled to compensation. Baiona v. Employ-
ers' Liability Assurance Corporation, Mass. Indus. Ace. Bd.
Where an applicant for compensation contended that
the death of the workman had been caused by lead poison-
ing, or its consequences, and it appeared in this particular
case that the immediate cause was granular kidney, which
might have been brought about by gout, alcoholism, heart-
pressure, or other complaints it was held that the claimant
had not maintained the onus of proving that the death was
caused by lead poisoning. Haylett v. Vigor & Co. (1908),
1 B. W. C. C. 282. This case arose under the amendment
to the British Act allowing compensation for certain in-
dustrial diseases, including lead poisoning.
16. Copper poisoning.
Copper poisoning, due to coming in contact with the
copper filing and inhaling of the dust from the same by a
workman engaged in grinding and polishing of brass prod-
INJURIES ARISING OUT OF EMPLOYMENT 375
"Sunstroke," "heat stroke" and "frostbite"
ucts, is not an injury by accident arising out of and in the
course of the employment within the meaning of the New
Jersey Act. Hichens v. Magnus Metal Co., Hudson Com-
mon Pleas, June 25th, 1912; 35 N. J. Law J. 327. In the
last-mentioned case the court followed the construction
of the English courts in relation to the British Compensa-
tion Act prior to the amendment allowing compensation
for injuries due to occupational diseases, and stated: "Since
the passage of this amendment to the English Act the Eng-
lish courts have sustained the right of recovery in cases such
as here presented. The draftsmen of our Act evidently did
not note the amendment to the English Act, or else the
Legislature did not intend to permit the recovery of com-
pensation in such cases. It is apparent that it is just as
important to protect employes against such conditions as
are here presented as to protect them against injuries aris-
ing from what are strictly termed accidents, but in the
absence of a provision in the statute meeting this situation
the court is unable to award a recovery. The statute should
undoubtedly be amended to meet this sort of condition."
17. " Sunstroke," " heat stroke " and " frostbite."
The weight of authority seems to be in favor of holding
that "sunstroke" is an accidental body injury, although
the question is not definitely settled in all jurisdictions in
this country. On the other hand "frostbite" is generally
held not to be an accidental injury, unless it is the result
of undue or extraordinary exposure. On this subject also
there is a conflict.
Sunstroke, although classed as a disease, is not such a
disease as may be contracted in the same sense as ordinary
diseases may be, but is an injury of an accidental nature,
and is covered by the Federal Act. Re J. J. Walsh, Op.
Sol. Dep. C. & L., p. 193. The Solicitor stated that he had
formerly been of the opinion that sunstroke was not an ac-
cident, but was a disease, and that he had based his deci-
376 bradbury's workmen's compensation law
"Sunstroke," "heat stroke" and "frostbite"
sion on the cases of Sinclair V. Maritime Passengers' As-
surance Co., 30 L. J. Q. B., 77; 4 L. T. 15; Dozier v. Fidelity
& Casualty Co., 46 Fed. Rep. 446; Re Sheeran, 28 Op. At.
Gen. 254; but that more recently he had come across some
English cases under the British Workmen's Compensation
Act, to wit, the cases of Ismay, Imrie & Co. v. Williamson,
99 L. T. 595; 1 B*. W. C. C. 232, and Morgan v. Owners of
S. S. "Zenaida", 25 T. L. R. 446; 2 B. W. C. C. 19, in which
it was held that incapacity caused by sunstroke was covered
by the English Compensation Act and therefore he was
compelled to change his views.
The case of Morgan v. Owners of S. S. Zenaida (1909), 25
T. L. R. 446; 2 B. W. C. C. 19, was decided by the Court of
Appeal of England. The applicant, an ordinary seaman,
while engaged in painting the vessel when she was lying at a
port on the coast of Mexico was incapacitated by sunstroke.
The medical evidence was to the effect that a seaman paint-
ing the outside of a ship is running a greater risk of sunstroke
than when employed on deck, because he not only gets the
direct rays of the sun, but he also gets the reflected rays from
the ship's side. It was held, therefore, that he was entitled
to compensation.
A seaman employed as a trimmer on board the steamship
Majestic while engaged in drawing ashes from the ship's
furnace, had a "heat stroke" and died therefrom about two
hours afterwards. The seaman was in a weakly state of
health and of low vitality when he entered upon his duties,
and consequently liable to such attack. It was held by the
House of Lords, upholding the decision of the Court of
Appeal in Ireland, that the "heat stroke" was a personal
injury by accident. Ismay, Imrie & Co. v. Williamson (1908),
42 Ir. L. T. 213; 1 B. W. C. C. 232. In the last-mentioned
case the Lord Chancellor said: "To my mind the weakness
of the deceased which predisposed hirn to this form of attack
is immaterial. The fact that a man who has died from a heat
stroke was by physical debility more likely than others so
INJURIES ARISING OUT OF EMPLOYMENT 377
"Sunstroke," "heat stroke" and "froBtbite"
to suffer can have nothing to do with the question whether
what befell him is to be regarded as an accident or not. * * *
In my view this man died from an accident. What killed
him was a heat stroke coining suddenly and unexpectedly
upon him while at work. Such a stroke is an unusual effect
of a known cause, often, no doubt, threatened, but generally
averted by precautions which experience, in this instance,
had not taught. It was an unlooked-for mishap in the course
of his employment. In common language, it was a case of
accidental death. I feel that, in construing this Act of
Parliament, as in other cases, there is a risk of frustrating it
by excess of subtlety, which I am anxious to avoid." Citing
Fenton v. Thorley & Co. (1903), A. C. C. 443; 5 W. C. C. 1,
with approval.
A fireman on board ship was seen frequently drinking
water while in the stoke hole. Soon after he was found to be
very ill. He next became uncomv'pus and died. No post-
mortem was held and the medic^eV^aHence as to the cause
of death was conflicting. The Cp^^he ]ourt judge granted
compensation, and on appeal it v3£s Ke"Kl that the question
as to whether or not the workman did, in effect, sustain a
personal injury by accident, arising out of and in the course
of the employment, was one of fact for the County Court
judge to decide. Johnson and Others v. Owners of Ship
"Torrington" (1909), 3 B. W. C. C. 68.
A seaman was on duty on a blackened steel deck for some
hours in the blazing sun with no shade, in a port in Hayti, at
a temperature of 108 degrees to 120 degrees Fahrenheit.
He suffered from blindness, due to exposure to the sun. It
was held that the employment involved special exposure to
the risk of sunstroke and that the accident arose out of the
employment, and the man was therefore entitled to compen-
sation. Dairies v. Gillespie (1911), 5 B. W. C. C. 64. In the
last-mentioned case the court said: "I do not desire in the
least to depart from what I said in Warner v. Couchman, 4
B. W. C. C. 32. We ought to be very careful to avoid saying
378 bradbury's workmen's compensation law
"Sunstroke," "heat stroke" and "frostbite"
anything which might be held to mean that anyone whose
occupation exposes him to the roughness of the weather more
than some other occupation, was entitled to compensation
for injury thus incurred. The only question is whether this
man was in such exceptional circumstances that he was more
exposed by reason of his occupation than other people would
have been. That*is a question of fact. The judge says, in
order to perform his duties, he was compelled to be on a
steel deck where there was no awning from 6 A. M. until
11 A. M. with only half an hour for breakfast, and leaning
over a hatchway. The medical referee informs the judge that
he attached importance to the fact that the exposure was
prolonged; that that materially increased the risk. I cannot
say that the judge is wrong in the conclusion at which he
arrived. It is a question of fact, not of law. There was
evidence to justify the inference he has drawn."
A man of impaired vjWity was at work laying and jointing
pipes in a trench in/^P^iad, during excessive summer heat.
The work involve^ 01.Aooping a good deal. He suffered
from sunstroke. PiTwas^ield that this was not an accident
and did not arise out of the employment and compensation
was refused. Bobson, Eckford & Co. v. Blakey (1911), 49
Sc. L. R. 254; 5 B. W. C. C. 536. In the last-mentioned
case it was urged that because the man had to bend at his
work in the excessive heat of the sun, he was subjected to a
peculiar danger. In reply to this argument the court said:
" Now, since the days when Adam was expelled from Eden,
I think every outdoor laborer has had to bend at his work,
and I think it would be the very climax of absurdity to say
that because a man had to go into the open air, and because
he had to stoop, he was exposed to a peculiar danger because
of his employment. * * * We all know that July, 1911,
was a hot month; but to say that any one who works, as it
has been called, 'Neath the baleful star of Sirius,' is neces-
sarily exposed to an excessive or peculiar danger, is a prop-
osition which has no foundation,"
INJURIES ARISING OUT OF EMPLOYMENT 379
"Sunstroke," "heat stroke" and "frostbite"
Sunstroke or heat prostration, contracted by decedent
in the course of his ordinary duty as a supervising architect,
is a disease and does not come within the terms of a policy
of insurance against bodily injuries sustained through exter-
nal, violent and accidental means. Dozier v. Fidelity &
Casualty Co. 46 Fed. Rep. 446; (Circuit Court, Western
Dist. of Mo., June, 1891).
A journeyman baker, whose duty it was at times to drive
his master's cart and deliver bread, was frost-bitten in the
hand. The County Court judge found that there was
nothing in the man's employment which exposed him to
more than the ordinary risk of cold to which any person
working in the open was exposed on the day in question, and
that the accident did not arise out of the employment.
Therefore compensation was refused. (House of Lords)
Warner v. Couchman (1911) 5 B. W. C. C. 177; aff'g 4 B. W.
C. C. 32.
A seaman at work on his ship at Halifax, N. S., sustained
frostbite. The judge found that the workman had not
proved that the frostbite was due to any particular circum-
stance in connection with his employment, nor had he been
exposed to more risk of frostbite than is usual in winter at
Halifax, and it was held that the accident did not arise out
of the employment. Karemaker v. Owners of S. S. "Cor-
sican" (1911), 4 B. W. C. C. 295. In the last-mentioned case
the court said: "Halifax is a place where people do receive
frostbite, and therefore it is proper and necessary to take
steps to guard against it. In that sense the liability to frost-
bite is one of the normal incidents to which everybody is
subjected by reason of the severity of the climate."
A laborer on river and harbor work was standing on a lock
wall giving signals for operating a cable carrier, when both
his feet were frozen. Notwithstanding this, he continued to
work for two days before the soreness and swelling compelled
him to quit work, as he did not realize that his feet were
frozen until he got to the fire. It was held that this was an
380 bradbury's workmen's compensation law
Mental shock or fright and nervous troubles
injury entitling the employe to compensation within the
Federal Act. Re T. F. Luttrell, Op. Sol. Dep. C. & L. p. 181.
A laborer having gotten his fingers frozen in the course of
his employment later burned his fingers at home by acci-
dentally setting fire to the bandages, and it was held that while
he was entitled to compensation as to the freezing of his
fingers, he was not entitled to compensation respecting the
burn, as this injury was not received in the course of his
employment. Re A. M. Rockwell, Op. Sol. Dep. C. & L.,
page 242.
The Industrial Commission of Wisconsin has also declared,
but not in a litigated case, that "frostbite" is an accidental
injury.
Freezing to death. Applicant was the widow of Alec Young,
who was frozen to death in a snowstorm while in defendant's
employ. He was out in the mountains attending to high-
power line work, and his death resulted from climatic con-
ditions. The controversy arose as to whether this was an
industrial accident. Held that it was, because there was
no doubt that Young had been instructed by a superior
officer to do necessary work, and the widow was awarded
the death benefit of three years' annual earnings, amounting
to the sum of $3060. Young v. Northern California Power Co.,
Cal. Indus.Acc. Bd., June 2, 1913.
18. Drowning.
An employe, a boatman, fell overboard and was drowned,
and it was held that this was a personal injury entitling the
widow to compensation. Booth v. Aetna Ins. Life Co., Mass.
Indus. Ace. Bd.
19. Mental shock or fright and nervous troubles.
A workman has been held to have suffered an accidental
injury by witnessing the effects of an accident to a fellow
workman whereby nervous shock resulted. Yates v. South
Kirby Featherstone & Hemsworth Collieries (1910), 103 L. T.
INJURIES ARISING OUT OF EMPLOYMENT 381
Mental shock or fright and nervous troubles
170; 3 B. W. C. C. 418. In the last-mentioned case the court
said: "When a man in the course of his employment goes to a
place and sustains a nervous shock producing physiological
injury, not a mere transient emotional impulse, it is an
accident arising out of and in the course of his employment.
It is something unexpected, no doubt, in this sense, that I
do not suppose the man thought for a moment or knew when
he was doing what was plainly his duty in going to the rescue
of the other party, that it would have this physiological
effect on his system. It had that effect. There was no
malingering here. It was a perfectly genuine case. Mr.
Simon has not suggested anything to the contrary; and I
should not myself. I think this is a case which falls within
the Act of Parliament on the same principle and in the same
way as if the man, on going to the rescue of the other collier,
was injured by this fall, or had stumbled or fallen on his
way there. That, undoubtedly, would have been a case
within the Act, and I can see no real difference in principle
(when once you get rid of the danger of malingering), be-
tween that case and the case where a physiological injury —
physiological damage — is produced by reason of what hap-
pened to this man when he went in the course of his duty
to the neighboring stall, and saw what had happened to this
workman." In this case a man, while at work, heard an
outcry from an adjacent chamber. He found a miner
severely injured and so badly wounded that he died. Sub-
sequently the rescuer alleged that he was so affected by the
appearance of peril of the miner that he was incapacitated
from further employment and this was held to be a personal
injury by accident.
Neurosis following an injury entitles an employe to com-
pensation when incapacity for work is due to the neurosis.
Lata v. American Mutual Liability Ins. Co., Mass. Indus.
Ace. Bd.
Applicant was badly injured as the result of a fellow em-
ploye" allowing an axe to fall 4& feet and strike applicant's
382 bradbury's workmen s compensation law
Mental shock or fright and nervous troubles
right shoulder. The collar bone was severed and a ghastly
wound inflicted. There was no infection, but the applicant
was not, up to the time of filing the application, able to use
his arm in any degree and professes, as a result of the injury,
a total paralysis of the arm and a partial paralysis of the
entire right side. He had performed no labor for nearly a
year following the accident. Defendant paid $393.75, and
then discontinued further payments on the grounds that
applicant was not totally disabled as claimed, but only
partially so. Applicant refused to accept a reduced pay-
ment and instituted the proceeding. The only issue was
the nature and extent of the injury, and the determination
of this point was left to expert medical and surgical practi-
tioners. Held that it was a clear case of hysterical paralysis,
in accord with the expert medical testimony of the defendant,
and that there was no malingering. The compensation
awarded was for $231.25, this sum being the balance due
of a total sum of $626, and it was further ordered that $12.50
be paid for each and every week during the continuance of
said total disability or until the total payments on account
of such disability shall equal three times his average annual
earnings, or $3,000. Santini v. Mammoth Copper Mining Co.,
Cal. Indus. Ace. Bd., Oct. 14, 1913.
Compensation was denied on the application of a railway
conductor who contended that he had suffered a nervous
breakdown as a result of the employment in the service of
the company. Campbell v. Detroit United Railway, Mich.
Indus. Ace. Bd., Oct. 15, 1913; The Indicator, Oct. 20, 1913,
at page 417.
Where a personal injury is caused to a workman by ac-
cident, his right to claim compensation continues so long
as the nervous effects remain, if they produce total or partial
incapacity for work. Eaves v. Blaenclydach Colliery Co.
(1909), 100 L. T. 747; 2 B. W. C. C. 329.
A relief stamper crushed her finger, and after a period of
time had physically recovered from her injury, but dreaded
INJURIES ARISING OUT OF EMPLOYMENT 383
Mental shock or fright and nervous troubles
to return to her old work for fear she should again injure
herself. It was held that the total incapacity for work had
ceased and an award of Id. a week was all she was entitled
to have. Pimms v. Pearson (1909), 2 B. W. C. C. 489.
Although nervousness may be the result of an accident
if it is such as an average reasonable man could overcome
it is not sufficient ground for compensation. Turner v. Brooks
& Doxey (1909), 3 B. W. C. C. 22. In the last-mentioned
case the workman had suffered an injury of a not very
serious nature. He returned for a short time and then went
to a convalescent home and after that returned to work and
continued in it for a period of eighteen months. Then he
complained that because of nervousness due to the accident
he was unable to work. The County Court judge denied
compensation and this decision was affirmed by the Court
of Appeal. Among other things the County Court judge
said: "It is one of the most difficult tasks we have in the
working of the Act dealing fairly with employers and men,
to deal with cases which are partially neurasthenic, and
where the man does not desire to go back to work for a
variety of reasons which have really nothing much to do
with the original accident. I make a finding that the man
if he desires further rest can have it at his own risk. I think
that the applicant is fit for his work, and that his refusal
to continue working is due to nervousness which an average
reasonable man would overcome. * * * I cannot help
saying that these neurasthenic claims are on the increase.
I know that the better class of working men will take the
same view that I do of them. They are not good for the
general body of the working community at all. It is not
good that these neurasthenic cases should be continually
up before the country." The Court of Appeal drew a dis-
tinction between this decision and the case of Eaves v.
Blaenclydach Colliery Co. (1909), 2 K. B. 73; 2 B. W. C. C.
329.
An applicant for compensation was working in a loft
384 bradbury's workmen's compensation law
Insanity
when a plank on the floor broke and he hurt his leg. As he
was unable to walk he was taken to the hospital and was put
under a high frequency electrical treatment, which was so
efficacious that in five minutes the man seemed to be com-
pletely cured and was able to walk about. He was discharged
as cured, but when he went back home he became as bad
as ever. Again h^ returned to the hospital and had the
electrical treatment administered, with the result that in a
few minutes again he was apparently as well as ever. Within
a few days after returning home he once more broke down
and became as bad as before. The man alleged that he was
unable to do any work. A physician giving evidence for the
employe* said he did not think Osband was malingering. He
was suffering from traumatic hysterical paraplegia, and was
unfit to do any work. Witness had told the man that a
cure might be effected if his house suddenly caught fire,
because he would then probably make a rush for the stairs
and go down all right. The County Court judge decided
that the man was suffering from traumatic hysterical para-
plegia, and that it was not an imaginary paralysis, because
he was not suffering from any paralysis at all. That his
condition was one of hysteria, and, in the opinion of himself
and the medical referee the man could not exercise his will
to commence work. He was, therefore, entitled to compen-
sation. Osband v. Tabor .{1912), "The Policy Holder,"
April 10, 1912, p. 296. L
20. Insanity.
An accidental injury to the eyes resulting in total blind-
ness, produced a condition of mind upon which softening of
the brain supervened, causing death. It was held that death
resulted from the injury. Mitchell v. Grant & Aldcroft (1905)
7 W. C. C. 113.
A workman who had previously lost the sight of one eye
received injuries to the other in the course of the employ-
ment. He became almost blind. In consequence, his nervous
INJURIES ARISING OUT OF EMPLOYMENT 385
Acceleration or aggravation of pre-existing disease
system broke down and insanity followed. He later com-
mitted suicide. His widow applied for compensation and
the application was dismissed as irrelevant by the arbitrator.
It was held on appeal that, without saying whether or not
the claim could eventually be made out, the claimant was
entitled to go to proof, and the arbitrator ought not to have
dismissed the case as irrelevant upon its face. Malone v.
Cayzer, Irvine & Co. (1908), 45 Scotch L. R. 351; 1 B. W. C.
C. 27.
An employe sustained an injury in the course of his em-
ployment resulting in temporary total disability. Before he
had completely recovered from the injury he suddenly be-
came insane and was committed to an asylum. The wound
received had healed at the time of his becoming insane and
there was nothing to indicate that the insanity resulted from
the wound. It was held that the disability resulting on
account of the insanity did not result from an injury sus-
tained in the course of the employment. Re Charles Edner,
Claim No. 1320, Ohio Indus. Ace. Bd., 1913.
21. Suicide due to mental condition caused by accident.
A workman was injured in his head by a fall. Traumatic
neurasthenia supervened and gradually became worse.
About eight months after the accident he was found drowned
in a canal 400 yards from his home. The County Court
judge found that he committed suicide, and that the suicidal
tendency was the result of the accident. It was held on
appeal that there was no evidence to justify the finding, and
compensation was refused. Southall v. Cheshire County
News Co. (1912), 5 B. W. C. C. 251.
See also last preceding paragraph.
22. Acceleration or aggravation of pre-existing disease.
Acceleration and aggravation of a pre-existing disease is
an injury caused by accident. Willoughby v. Great Western
Ry. Co. (1904), 6 W. C. C. 28. An injury may be caused by
25
386 bbadbury's workmen's compensation law
■ ■
Acceleration or aggravation of pre-existing disease
an accident although no injury would have been thereby
suffered but for the existence of disease which was aggra-
vated by the accident. Lloyd v. Sugg & Co. (1900), 81 L. T.
768; 2 W. C. C. 5. A- workman, while employed in a colliery,
was injured by a stone falling on his knee. The accident
occurred on a cold day, and the applicant took over two
hours to get to his home, a distance of a mile and a quarter.
Chest trouble and pneumonia supervened, and on an appli-
cation for compensation medical evidence was given that
the applicant suffered from bronchitis and chronic asthma
and was unable to work. It was held that the test to be
applied was not whether the workman's diseased condition
was the natural or probable result of the accident, but
whether it was the result of the accident in the sense that it
was occasioned by the debilitated state of the workman
immediately after the accident, or whether the accident had
not accelerated an existing tendency to disease, or given life
to certain latent causes of disease in the workman's body.
Ystradowen Colliery Co. v. Griffiths (1909), 100 L. T. 869; 2
B. W. C. C. 357.
"An injury which might naturally produce death in a
person of a certain temperament or state of health is the
cause of his death, if he dies by reason of it, even if he would
not have died if his temperament or previous health had
been different, and this is so, as well when death comes
through the medium of .disease directly induced by the in-
jury, as when the injury immediately interrupts the vital
processes." Freeman v. Mercantile Mut. Ace. Assn., 156
Mass. 351.
Where a man is so afflicted that he will die from such afflic-
tion within a very short time, yet, if by some accidental
means, his death is caused sooner, it will be death from acci-
dent within the meaning of the terms of an accident insurance
policy. Hooper v. Standard Life & Accident Ins. Co., 000
Mo. 000; 148 S. W. Rep. 116.
A physical injury which aggravates a previous ailment so
INJURIES ARISING OUT OF EMPLOYMENT 387
Acceleration or aggravation of pre-existing disease
as to disable an employe" where disability would not have
been caused but for such previous ailment, is an injury within
the act entitling the employe to compensation. Re Philip
Jarvis, Op. Sol. Dep. C. & L., p. 181.
Applicant slipped and sprained his back and aggravated
the condition of direct inguinal hernia from which he had
suffered for some nine years. He reported the injury to his
back and was treated accordingly. On a subsequent visit
to the physician he referred to the hernia. Applicant went
to the County Hospital and was operated on successfully
by the County Physician. He asked for compensation dur-
ing the entire period of his disability and also for the expense
incurred in securing medical and surgical treatment to cure
and relieve the hernia. Held that employes take with
them into their employment any physical infirmities which
they may possess at the time of entering such employment,
and that applicant was entitled to compensation for the full
period of disability. It was further held that applicant was
not entitled to any allowance for surgical and hospital treat-
ment, because the employer was not given notice of any
claim in this connection. The amount awarded applicant
was the sum of $75 for five weeks' total disability. Yenne
v. Standard Oil Co., Cal. Indus. Ace. Bd., July 28, 1913.
This case was dismissed but not before an award had been
rendered by the Industrial Accident Board. The issue in-
volved was interesting. Applicant had his right foot burned
by coming in contact with freshly mixed cement concrete
until his shoe and stocking had been thoroughly saturated
with the caustic material. As a result, the foot became
seriously ulcerated, causing a disability extending over
several weeks. In childhood applicant had his foot injured
by having a hay wagon run over it, crushing it so seriously
that some of the toes and much of the skin were sacrificed.
The foot, consequently, was much more susceptible to caustic
burns than the true skin. Held that the workman carries
his disability with him, as per the English decisions, and that
388 bradbury's workmen's compensation law
Acceleration or aggravation of pre-existing disease
he sustained an injury within the terms of the Act. He was
awarded the sum of $100 for medical and surgical treatment,
and $13.50 per week for disability, which amount was paid
until the dismissal referred to. Leavenworth v. Ransome
Concrete Co., Cal. Indus. Ace. Bd., May 6, 1913.
A laborer in the Mare Island Navy Yard had badly de-
formed feet which were mechanically inefficient and by
reason thereof a slight injury caused incapacity. The
examining physician certified that "although the injury
damaged the foot temporarily, it was the old condition
which interfered with the usual recovery and is responsible
for the present state and the necessity of wearing a brace."
The examining physician also stated: "Of course, the injury
precipitated the pain and lameness, and without some me-
chanical aid the foot was not able to properly functionate."
It was held under such circumstances that the injury aggra-
vated a previous ailment and that the workman was entitled
to compensation. Re J. S. K. Wite, Op. Sol. Dep. C. & L.,
p. 183.
The claimant, while working on a war vessel in the Boston
Navy Yard, was hit by a steel plate on the right lower quarter
of the abdomen. The medical officer reported that the man
had symptoms of appendicitis. The medical officer also re-
ported that he was inclined to think it improbable that the
appendicitis was the result of the injury, although the injury
may have aggravated the already diseased appendix. He
further stated that the man had had chronic appendicitis
for two or three years. It was held under such circumstances
that the injury aggravated the old disease and compensation
was awarded. Re August Pohl, Op. Sol. Dep. C. & L., p. 185.
The claimant stumbled and fell across a manhole on the
ship "Chattanooga" and the attending physician certified
that he was immediately thereafter incapacitated on account
of a fractured rib, with considerable bruises and contusions
of the back. After compensation had been awarded for six
months the man complained of pain over the lower ribs and
INJURIES ARISING OUT OF EMPLOYMENT 389
Acceleration or aggravation of pre-existing disease
over the heart, with shortness of breath. The attending
physician certified that "it would be difficult to state def-
initely how much the symptoms due to organic heart disease
had been aggravated by the fall which he sustained. He is
a heavy man, and the concussion must have been consider-
able. He will never be in condition to perform any hard
labor. Denies rheumatism as a cause for heart disease."
It was held that as the man apparently had organic heart
disease and that it was probable that this condition was
aggravated by the severe fall which the claimant sustained,
that he was entitled to further compensation. Re William
Bunce, Op. Sol. Dep. C. & L., p. 186.
Where it appeared that an employe1 had been engaged in
work for the Canal Commission two and one half years when
he met with an accident and was thereafter operated on for
hernia, and he stated that he had never had a hernia before,
but the physician in the hospital stated that he found an old
hernia, it was held that the employe" was entitled to compen-
sation as having received an injury in the course of his em-
ployment, which aggravated his old ailment. Re Augustin
Miro, Op. Sol. Dep. C. & L., p. 594; s. c. p. 595.
As a result of an accident in 1902, a rivetter had the index
finger of his right hand amputated. He returned to work
with his old employers, not as a rivetter, the rivetter's ham-
mer being too heavy for him, but as a caulker, at the same
wages. He worked at this for seven years without difficulty,
using a light hammer. In November, 1910, a pneumatic
hammer was adopted for caulking, and after working with
this for a few days his hand became inflamed and he had to
stop work. The direct cause of the inflammation was a piece
of dead or diseased bone which was discovered in 1910, but
this diseased bone was some distance from the point of am-
putation, and as the court found, quite unconnected with the
effects of the accident. The County judge found that the
accident was a contributory cause of the present incapacity,
and awarded compensation. The Court of Appeal, however,
390 bradbuby's workmen's compensation law
Acceleration or aggravation of pre-existing disease
reversed the finding of the County Court and held that there
was no evidence to support the finding that the original in-
jury had anything to do with the disability which later de-
veloped. The Court of Appeal discussed the case at some
length and held that the disability from which the workman
suffered was not %n accident and that it had no connection
with the original injury, and therefore denied compensation.
Noden v. Galloways (1911), 5 B. W. C. C. 7.
A workman lifting a heavy weight involving considerable
exertion felt a sharp pain and had to leave off work. He
was found suffering from advanced heart disease which was
bound to manifest itself sooner or later and might do so
without any exercise on his part. It was held that the work-
man had not proved that he had sustained an accident aris-
ing out of his employment, or that the work which he had
done had accelerated the progress of the disease, and com-
pensation was refused. Spence v. W. Baird & Co. (1912), 49
Sc. L. R. 278; 5 B. W. C. C. 542.
A workman with degenerate arteries, whose work was
very heavy, fell out of a railway truck on his head. He
resumed work in three weeks, but shortly afterward became
incapacitated again and was found to be suffering from
aneurism. The County Court judge found that the accident
had accelerated the aneurism and granted compensation.
The Court of Appeal reversed the decision and sent the case
back for a re-hearing, on the ground that there was no evi-
dence that the aneurism had been in existence at the time of
the accident. Taylor v. Bolckow, Vaughan & Co. (1911),
5 B. W. C. C. 130.
A workman, suffering from heart disease, had to leave
work owing to the weakness of his heart. He alleged that he
had strained his heart in turning a heavy valve. The judge
did not believe the evidence and there was no other evidence
of the accident, but nevertheless he awarded compensation.
On appeal the judgment was reversed on the ground that
there was no evidence to support the finding and compensa-
INJURIES ARISING OUT OF EMPLOYMENT 391
Disability made more serious by illness or other contributing cause
tion was refused. Beaumont v. Underground Electric Rail-
ways Co. of London (1912), 5 B. W. C. C. 247.
Where a workman who suffered from an old hernia, sud-
denly felt a severe pain while at work in a mine and the her-
nia became strangulated and he died as a result, it was held
in the absence of evidence that anything which he was doing
was likely to cause him a strain, that there was nothing on
which the court could found a claim for compensation. Perry
v. Ocean Coal Co. (1912), 5 B. W. C. C. 421.
Where an employe had suffered from a hernia and there
was a recurrence of this hernia, but the employe- stated that
there was no accident that caused his injury, and he was
unable to give any specific date when the same was received,
it was held that compensation must be denied. Re C. R.
Ensey, Op. Sol. Dep. C. & L., p. 592.
A coal miner suffering from Bright's disease told a fellow
employe that he had hurt himself, and the fellow workman
saw marks of an injury. The miner went home and died in
a short time from uraemia, as a post mortem examination
proved. It was held that there was not sufficient evidence
that the man had met with an accident and compensation
was refused. Ashley v. Lilleshall Co. (1911), .5 B. W. C. C. 85.
A miner lost the sight of an eye by accident and received
full compensation. He recovered and was able to earn full
wages as before the accident. On application by the em-
ployers to terminate the compensation payments it was ad-
mitted that the workma'n had incipient cataract in the other
eye which would ultimately totally incapacitate him, but
that it was in no way due to the accident. It was held that
the payments should be terminated. Hargreave v. Haugh-
head Coal Co. (1912), 5 B. W. C. C. 445.
23. Disability made more serious by illness or other con-
tributing cause.
Where the accidental injury causes disability the injured
employe is entitled to compensation even though the dis-
392 bradbury's workmen's compensation law
Infections due to lowered vitality
ability is made more serious by reason of illness or other
contributing cause. But the compensation awarded is to
be measured by the disability directly traceable to the ac-
cident, and when such disability ceases the compensation
terminates, although the injured person may be still disabled
by the illness or some other cause wholly unrelated to the
accident. Mack v. Pacific Telephone & Telegraph Co., Cal.
Indus. Ace. Bd.
A workman tripped over a piece of iron plate and sustained
a fall in the plant of the respondent. Disability followed the
injury. The arbitration committee held that the injury
sustained was responsible for a portion of the disability and
awarded twelve weeks' compensation. There was some
evidence that the ankle in question had given applicant some
trouble prior to the date of the alleged accidental injury, and
that he had been disabled through said affliction for some
time in the spring of 1912. Considerable expert testimony
was introduced to prove that the condition of the applicant's
ankle was due to tubercular infection. It was held that the
claim of the applicant that the ankle was injured by the fall
over the iron plate was sustained by a fair preponderance of
the evidence. Also that the claim of the employe that the
disability which still continued was due largely to a tuber-
cular condition of said ankle was sustained by a fair pre-
ponderance of the evidence. The Board therefore reached
the opinion that the injury sustained by the applicant while
in the employ of the respondent was responsible for a portion
of the disability, and that the period of twelve weeks allowed
by the committee on arbitration was reasonable under the
circumstances. Sharf v. Packard Motor Co., Mich. Indus.
Ace. Bd., April, 1913.
24. Infections and other ailments contracted by reason of
lowered vitality due to previous injuries.
After recovering from the direct effects of an accident a
workman did not regain his normal health, but continued
INJTJKIES ARISING OUT OF EMPLOYMENT 393
Infections due to lowered vitality
in a weak and debilitated condition. Eventually he died,
thirteen months after the accident, from brdnchitis following
influenza. The County Court judge found that the bron-
chitis proved fatal because of the condition to which the
accident had reduced the deceased, and that death resulted
from the injury. The Court of Appeal held that there was
evidence to support the finding and compensation was
awarded. Thoburn v. Bedlington Coal Co. (1911), 5 B. W.
C. C. 128.
Where the employe developed a condition of tuberculosis,
which condition was said by the physicians to be due to
shock and low vitality, resulting from the original injury, it
was held that he was entitled to compensation. Re L. F.
Perron, Op. Sol. Dep. C. & L., p. 579.
A workman who had undergone an operation returned to
work before the operation wound was completely healed,
with instructions not to strain himself. He worked at the
lever of a machine. A fellow workman, noticing that the
machine was stopped, looked for the man and saw that he
was talking to the foreman some yards away. It was then
seen that blood was flowing freely from the operation wound
and soaking into his boots. Septic poison followed, and the
man died. In the absence of direct evidence as to what had
happened the County Court judge drew the inference that
the wound had burst open through the strain of working the
lever, and awarded compensation to the dependents. It
was held on appeal that there was evidence from which the
County Court judge could draw this inference. Groves v.
Burroughes & Watts (1911), 4 B. W. C. C. 185.
A severe accidental injury which, although it does not in-
capacitate the employ^, exposes him to an infectious disease,
and so weakens him that he is unable to withstand it, may
thus give rise to a disability for which compensation is
payable. Re J. B. Atkinson, Op. Sol. Dep. C. & L., p. 197.
In the course of his employment, the claimant in this case
came in contact with a live electric wire which caused him
394 bradbury's workmen's compensation law
Condition due to medical treatment
to fall from the ladder on which he was working a distance
of about thirty-two feet. He was badly bruised, the liga-
ment of his right shoulder was torn loose, and he was unable
to use his lower limbs. Notwithstanding the seriousness of
his injury the decedent continued work for a time, when he
was compelled to give up, at which time his condition was
diagnosed as typhoid infection, from which disease he died
a short time later. The examining physician testified that
the deceased was very susceptible to infection from typhoid
fever, his system not being able to withstand an attack of
that disease, by reason of the fact that he had never recovered
from the effects of the injury. It was held that under such
circumstances he was entitled to compensation.
Applicant claimed compensation for indigestion which he
alleged had resulted from an injury caused by a falling bolt
which struck him on the head ten months previously to the
date of the claim. The original injury had necessitated
an operation. Compensation was denied, on the ground
that the applicant had fully recovered from injuries which
were the proximate result of the accident. Kawalki v. Wau-
sau Sulphate Fibre Co., Wis. Indus. Ace. Bd., Aug. 24, 1912.
Where an employe" was kicked by a horse in July and he
died in October following, it was held that there was no
causal connection between the kick and the death, and the
claim of the widow for compensation was denied. Boyd v.
Travelers Insurance Co., Mass. Indus. Ace. Bd.
25. Condition due to medical treatment.
It seems that a workman is entitled to compensation,
although his condition is attributable to defective medical
treatment. Beadle v. Milton & Others (1903), 114 L. T. 550;
5 W. C. C. 55. Whether present incapacity for work results
from the injury or from neglect of medical or surgical advice
is a question of fact. Smith v. Cord Taton Colliery Co. (1900) ,
2 W. C. C. 121.
A workman's hand was caught between two rollers and
INJURIES ARISING OUT OF EMPLOYMENT 395
Condition due to medical treatment
severely injured. In the ordinary course the hand would
have been amputated, but the surgeon endeavored to save
the hand by thoroughly cleansing the wound. This being
very painful, an anaesthetic was administered, and this
operation, which was described as a "bold experiment"
was successful, but two months after the first operation,
in order to prevent contraction, which would have rendered
the hand rigid and practically useless, it became necessary
to graft some skin on the hand. This operation being pain-
ful, though not dangerous, an anaesthetic was again admin-
istered, and the man died under it. It was held that death
resulted from the original injury and the'widow was entitled
to compensation. Shirt v. The Calico Printers' Ass'n (1909),
100 L. T. 740; 2 B. W. C. C. 342.
A workman suffered from adhesions in an injured arm.
His employers asked him to undergo an operation for the
breaking down of the adhesions. This he refused, and on the
application of the employers the compensation was termi-
nated, as it was held that the workman was no longer inca-
pacitated by reason of the accident. Wheeler Ridley & Co. v.
Dawson (1912), 5 B. W. C. C. 645.
Blood poisoning through use of a hypodermic needle is an
accident. Bailey v. Interstate Cos. Co., 8 App. Div. 127; 40
N. Y. Supp. 513; aff'd. 158 N. Y. 723; 53 N. E. Rep. 1123.
Pneumonia following an operation necessitated by the
employe's injury, was the immediate proximate cause of
death, and it was held that this was a personal injury which
entitled the employees widow to compensation. Raymond
v. United States Casualty Co., Mass. Indus. Ace. Bd.
An employ^ whose leg had been broken by reason of an
accident was taken to a hospital by other employes, over
his objection, but it was not shown that the employer au-
thorized this action or employed the physician. It was held
that the master was not liable for the negligent treatment
by the physician in the public hospital. (E. L.) Allegar v.
American Car & Foundry Co., 206 Fed. Rep. 437.
396 bradbury's workmen's compensation law
Refusal of workman to permit operation to be performed
26. Refusal of workman to permit operation to be per-
formed.1
Incapacity may none the less result from an injury,
should the workman refuse to undergo a surgical operation,
which, although attended with risk, would probably be
successful. Rothwell v. Davies (1903), 5 W. C. C. 141.
A workman was* injured at one o'clock in the afternoon on
February 14, 1913. He could not speak English and com-
munication was had with him through an interpreter. The
physician diagnosed the injury as probable rupture of the
intestine and advised an operation. When this was commun-
icated to the workman through the interpreter the injured
man shook his head indicating a refusal to have the operation
performed. The next morning at about 11 :30 the physician
again advised the operation and the workman then con-
sented and the operation was performed at about 1 :30 on Feb-
ruary 15. The operation disclosed a rupture of the intestine
which was sutured. During the operation the patient
vomited and some of the vomit was drawn into the lungs
causing pneumonia and resulting in his death a few days
later. The post-mortem examination showed that the in-
testine was m process of healing at the time of death. The
employer contested the payment of compensation on the
ground of the refusal of the workman to be operated on when
the physician first advised such an operation. The Board,
however, held that it was by no means certain that an earlier
operation would have saved the life of the workman, nor
was it certain that the operation performed would not have
resulted in his recovery were it not for the other compli-
cations which appeared in the case, and compensation was
awarded. Detroit Steel Products Co. v. Jendrus, Mich. Indus.
Ace. Bd., June, 1913.
A somewhat different ruling was made under the New
Jersey Act in the case of John McNally v. Hudson and
1 See Chapter XII, Art. B, paragraph 8 for discussion of case of increased
period of disability due to failure to follow physician's instructions.
INJURIES ARISING OUT OF EMPLOYMENT 397
Breaking artificial leg
Manhattan R. Co. (Hudson Common Pleas, December, 1913),
000 N. J. Law J. 000. In this case the workman's hips were
crushed by being caught between two cars. The physician
advised that a resulting rupture could probably be cured in
six months by an operation, which he recommended, and
which would be attended with some danger to the work-
man's life. The workman refused to undergo the opera-
tion. The court limited the compensation to six months,
although the disability continued a longer time, because
of the refusal of the workman to permit the operation to be
performed.
27. Vaccination by order of superior.
An employe" obeying orders of his superior and submitting
to an operation (vaccination), ordinarily harmless, who is dis-
abled thereby, is injured within the meaning of the Federal
Act and is entitled to compensation. Re C. B. Flora, Op.
Sol. Dep. C. & L., p. 188.
28. Disease contracted in hospital after accidental injury.
Applicant's husband died of tonsilitis contracted during
an epidemic in a hospital ward, where he had been taken
because of injuries suffered while he was working as a street
cleaner. The injury was caused by a fall, the head of the
deceased striking the stone curbing. It was held that the
applicant was entitled to compensation. Keehan v. City of
Milwaukee, Wis. Indus. Ace. Bd., Sept. 6, 1912.
Where a porter in a fever hospital contracted scarlet
fever but it did not appear when or where the disease was
contracted, it was held that the accident did not arise out
of the employment and compensation was refused. Martin
v. Manchester Corporation (1912), 5 B. W. C. C. 259.
29. Breaking artificial leg.
The breaking of an artificial leg is not an injury covered
by the statute. Re Eulogio Rodriguez, Op. Sol. Dep. C. &
398 bradbury's workmen's compensation law
Distinction between "arising out of" and "in course of"
L. p. 189. It is difficult to believe that such a claim would
be made seriously. But it apparently was pressed to the
point where the opinion of the Solicitor of the Department
was requested.
30. Death not natural or probable consequence of injury.
Where death results from injury dependents can recover
although death may not have been the natural or probable
consequences of the particular injury. Dunham v. Clare
(1902), 66 L. T. 751; 4 W. C. C. 102.
ARTICLE C— WHEN DOES AN INJURY "ARISE OUT OF"
OR IN "THE COURSE OF" THE EMPLOYMENT?
1. In general; distinction between terms " arising out of "
and " in the course of."
Some of the compensation statutes provide that a work-
man is entitled to compensation when he receives an injury
"arising out of and in the course of his employment." Others,
such as the Federal law, applying to certain Governmental
employes, for example, provide that he is entitled to com-
pensation when he receives an injury "in the course of his
employment" merely. The distinction is important. A few
statutes contain phraseology that is somewhat different, but
the meaning is the same, substantially.
The phrase "arising out of and in the course of his employ-
ment" has a double meaning. Or, more properly speaking,
there are two conditions attached to it. The accident must
"arise out of" the employment, as well as "in the course of"
the employment. Thus where a workman during the course
of the employment does something entirely foreign to the
work which he is employed to do (playing a practical joke,
for example) whereby he is injured, this accident could be
said to have occurred "during the course of" the employ-
ment, but it could not be said to "arise out of" the employ-
ment, because the workman was not doing anything which
he was employed to do when the accident happened. The
INJURIES ARISING OUT OF EMPLOYMENT 399
Distinction between "arising out of" and "in course of" ,
distinction in terms is illustrated in two recent British cases.
Thus a canal overseer employed by a railway company, was
returning to his office after having been, in the course of his
duties, to a railway station. He took a short cut along the
line instead of going around by the road, which was the
proper way. He was killed by a passing train. It was held
that the accident arose "in the course of," but not "out of,"
the employment, and compensation was refused. M'Laren
et al. v. Caledonian Railway Co. (1911), 48 Sc. L. R. 885;
5 B. W. C. C. 492. A herder employed on two farms usually
went from his home to the farms on a bicycle, with the
sanction of his employer. He was setting out on his bicycle
to go to one of the farms, when his own dog got in the way
and upset him. It was held that the accident arose in the
course of, but not out of, the employment, and compensation
was refused. Greene v. Shaw (1911), 46 Ir. L. T. 18; 5 B. W.
C. C. 573.
The question has been discussed recently in Massachusetts
in a case where a claim was made for compensation for in-
juries which were the result of an assault by a drunken co-
employe. In that State the Compensation Act contains
both of the conditions which are found in the British Act
and in most of the American statutes. On this point the
Massachusetts court said:
"The first question is whether the deceased received an
'injury arising out of and in the course of his employment',
within the meaning of these words in Part II, § 1 of the Act.
In order that there may be recovery the injury must both
arise out of and also be received in the course of the employ-
ment. Neither alone is enough.
"It is not easy nor necessary to the determination of the
case at bar to give a comprehensive definition of these words
which shall accurately include all cases embraced within the
Act and with precision exclude those outside its terms. It
is sufficient to say that an injury is received 'in the course of
the employment when it comes while the workman is doing
400 BRADBURY'S WORKMEN'S COMPENSATION LAW
Distinction between "arising out of" and "in course of"
the duty which he is employed to perform. It arises 'out
of the employment when there is apparent to the rational
mind upon consideration of all the circumstances, a casual
connection between the conditions under which the work
is required to be performed and the resulting injury. Under
this test, if the injury can be seen to have followed 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 em-
ployment, then it arises 'out of the employment. But it
excludes an injury which cannot fairly be traced to the em-
ployment as a contributing proximate cause and which comes
from a hazard to which the workman would have been
equally exposed apart from the employment. The causative
danger must be peculiar to the work and not common to the
neighborhood. It must be incidental to the character of
the business and not independent of the relation of master and
servant. It needs not to have been foreseen or expected,
but after the event it must appear to have had its origin in
the risk connected with the employment, and to have flowed
from that source as a rational consequence.
"The exact words to be interpreted are found in the
English Workmen's Compensation Act, and doubtless came
thence into our Act. Therefore, decisions of English courts
before the adoption of our Act are entitled to weight. Ryalls
y. Mechanics Mills, 150 Mass. 190. It there had been held that
injuries received from lightning on a high and unusually ex-
posed scaffold, Andrew v. Fallsworth Industrial Society,
(1904) 2 K. B. 32; from the bite of a cat habitually in the
place of employment, Rowland v. Wright, (1908) 1 K. B.
963; from a stone thrown by a boy from the top of a bridge
at a locomotive passing underneath, Challis v. London &
Southwestern Railway, (1905) 2 K. B. 154; and from an attack
upon a cashier travelling with a large sum of money, Nisbet
v. Rayne & Burn, (1910) 2 K. B. 689, all arose in the course
and out of the employment, while the contrary has been held
as to injuries resulting from a piece of iron thrown in anger
by a boy in the same service, Armitage v. Lancashire & York-
shire Railway, (1902) 2 K. B. 178; from fright at the incur-
INJURIES ARISING OUT OP EMPLOYMENT 401
Distinction between "arising out of" and "in course of"
sion of an insect into the room, Craske v. Wigan, (1909) 2
K. B. 635; and from a felonious assault of the employer,
Blake v. Head, 106 L. T. Rep. 822.
"The definition formulated above when referred to the
facts of these cases, reaches results in accord with their con-
clusions. Applying it to the facts of the present case, it
seems plain that the injury of the deceased arose 'out of
and in 'the course of his employment.' The findings of the
Industrial Accident Board in substance are that Stuart
McNicol, while in the performance of his duty at the Hoosac
Tunnel Docks as a checker in the employ of a firm of im-
porters, was injured and died as a result of 'blows or kicks
administered to him by . . . (Timothy) McCarthy,' who
was in 'an intoxicated frenzy of passion.' McCarthy was a
fellow-workman who 'was in the habit of drinking to intoxica-
tion, and when intoxicated was quarrelsome and dangerous,
and unsafe to be permitted to work with his fellow-employes,
all of which was known to the superintendent Matthews,'
who knowingly permitted him in such condition to continue
at work during the day of the fatality, — which occurred in
the afternoon. The injury came while the deceased was
doing the work for which he was hired. It was due to the
act of an obviously intoxicated fellow-workman, whose
quarrelsome disposition and inebriated condition were well
known to the foreman of the employer. A natural result of
the employment of a peaceable workman in company with
a choleric drunkard might have been found to be an attack
by the latter upon his companion. The case at bar is distin-
guishable from a stabbing by a drunken stranger, a felonious
attack by a sober fellow-workman, or even rough sport or
horse-play by companions who might have been expected to
be at work. Although it may be that upon the facts here
discussed a liability on the part of the defendant for negli-
gence at common law or under the Employers' Liability Act
might have arisen, this decision does not rest upon that
ground, but upon the causal connection between the injury
of the deceased and the condition under which the defendant
required him to work. A fall from a quay by a sailor while
returning from shore leave, Kitchenham v. Owners of S. S.
26
402 bradbury's workmen's compensation lav/
Distinction between "arising out of" and "in course of"
Johannesburg (1911), 1 K. B. 523; 6 (1911), A. C. 417; a sting
from a wasp, Anys v. Barton (1912), 1 K. B. 40; and a frost-
bite, Warner v. Couchman (1912), A. C. 35, all have been held
to be injuries not 'arising out of the employment. But
we find nothing in any of them in conflict with our present
conclusion. Nor is there anything at variance with it in
Mitchinson v. Day Bros. (1913), 1 K. B. 603, where it was held
that injuries resulting from an assault by a drunken stranger
upon an employe* engaged at his work on the highway did
not arise out of the employment. That was ,a quite different
situation from the one now before us." McNichol v. Patter-
son Wilde & Co., and Employers' Liability Assur. Corp. him.,
215 Mass. 000; 102 N. E. Rep. 697.
Under the New Jersey Act it has been held that an ac-
cident arises "in the course of the employment" when it
occurs while the employ^ is doing what a man so employed
may reasonably do within the time during which he is em-
ployed and at a place where he may reasonably be during
that time. Bryant v. Fissell, N. J. Law, ; 86 Atl. Rep.
458. The court reaffirmed the doctrine announced in two
cases arising under the British Workmen's Compensation
Act. Fitzgerald v. Clarke & Son (1908), 2 K. B. 796; 1 B. W.
C. C. 197; Moore v. Manchester Liners (1910), A. C. 498;
3 B. W. C. C. 527. In the last-mentioned case a fireman on
board a steamship lying off South Brooklyn went on shore
for the purpose of obtaining for himself certain necessaries
which were not provided by the owners of the ship. On
returning to the ship he fell off a ladder, which was the only
means of access from the dock to the ship, and was drowned.
It was held by the House of Lords that the accident arose out
of and in the course of the fireman's employment and there-
fore that the widow was entitled to compensation.
An accident arises "out of" the employment when it is
something the risk of which might have been contemplated
by a reasonable person when entering the employment as
incidental to it. A "risk incidental to an employment" is
INJURIES ARISING OUT OF EMPLOYMENT 403
Distinction between "arising out of" and "in course of"
one which belongs to or is connected with the duties which a
workman has to perform in fulfilling his contract of employ-
ment. Bryant v. Fissell, N. J. Law ; 86 Atl. Rep. 458.
The question of when a man's work begins and when it
terminates, or, in other words, when the relation of master
and servant begins or ends, is closely related to the same
provision. As a general proposition an accident which
happens while a man is going to and from his work nei-
ther "arises out of" nor occurs "during the course of"
his employment, if it happens off the master's premises un-
less the master transports the workmen to and from their
work. But there are enough exceptions to this rule to make
it a pregnant source of controversy, as the cases cited here-
after will demonstrate. In other cases workmen have been
injured when they have been doing something on the mas-
ter's premises which was entirely disconnected with their
own duties, or in doing something or operating some machine
which they have been specifically ordered not to do or to
refrain from operating. The Federal Workmen's Compensa-
tion Act (Act of May 30, 1908, extended by the Acts of
March 4, 1911 and March 11, 1912), applying to workmen
employed in certain occupations under the United States
Government, provides that a laborer who "is injured in the
course of such employment" shall be entitled, etc. This
Act has been construed by a series of decisions of the Solicitor
of the Department of Commerce and Labor, and many of the
cases have been reviewed by the Attorney General. The
adjudications under the British Workmen's Compensation
Act are also in point. There are a number of decisions by the
various industrial boards and commissions, which administer
the workmen's compensation laws of several of the American
States, where this question has been discussed. There are
also a good many miscellaneous decisions of the courts of the
various States of the Union where the question is considered
as to whether or not a man was injured during the course of
his employment. Naturally these latter cases were brought
404 bradbury's workmen's compensation law
Going to and from place of employment
under the common law or under various employers ' liability
acts, but they are also instructive under the workmen's com-
pensation statutes. Wherever such cases are cited the letters
(E. L.) in parentheses immediately precede the title so they
may be distinguished from compensation cases proper.
There is one especially important distinction to be drawn
between the cases«arising under the old employers' liability
acts and those under the compensation statutes. Under the
compensation laws it does not matter whether the workman
was injured by reason of the fault of the employer or of that
of someone else, so long as the injury arose out of and in the
course of the workman's employment. For example, if a
driver of a cart while engaged in his duties should be hit by a
trolley car, while on the public street, and injured, the em-
ployer of the driver would be liable for compensation, al-
though no liability would attach to the employer under any
of the old employers' liability acts or the common law.
The various classes of decisions referred to in the foregoing
general statement have been collated in the subsequent por-
tion of this Article. The opinions of the Solicitor for the
Department of Commerce and Labor, dealing with the
Federal Workmen's Compensation Act were published in a
volume printed at the Government Printing Office in 1912.
These opinions are cited in the subsequent pages of this work
under the following abbreviation: "Op. Sol. Dep. C. & L."
2. Going to and from place of employment. 1
The rule under the common law, employers ' liability acts
and workmen's compensation statutes seems to be that,
usually, an employer is not liable for injuries to an employe
before he reaches or after he departs from the employer's
premises, unless the employe is riding on a conveyance
furnished by the employer, and which conveyance is supplied
1See succeeding subdivisions: Seamen and Mechanics Getting on
and Off Vessels, and Workmen on Employer's Premises Before
Work Begins and After Work Ceases.
INJUBIES ARISING OUT OF EMPLOYMENT 405
Going to and from place of employment
under an agreement, express or implied, by the employer,
as part of the contract of employment. There are some
exceptions to the rule as appears from the cases hereafter
cited.
As a general rule a man's employment does not begin until
he has reached the place where he has to work, or the scene
of his duty, and it does not continue after he has left. The
periods of going and returning are generally excluded.
Benson v. Lancashire and Yorkshire Rail. Co. (1904), 1 K. B.
242; 6 W. C. C. 20; Walters v. Staveley Coal & Iron Co. (1911),
105 L. T. 119; 4 B. W. C. C. 303; Gilmour v. Dorman, Long &
Co. (1911), 105 L. T. 54; 4 B. W. C. C. 279; Gilbert v. Owners
of "Nizam" (1910), 3 B. W. C. C. 455; Kelly v. Owners of
"Foam Queen" (1910), 3 B. W. C. C. 113.
"While the workman is leaving the place where he is
employed, I think that, for the purposes of this Act, his
employment would continue. But though his employment
may continue for an interval after he has actually ceased
working, yet there must come a time when he can no longer
be said to be engaged in his employment in such a way that
an accident happening to him can be said to have arisen out
of and in the course of his employment. There must be a
line beyond which the liability of the employer cannot con-
tinue, and the question where that line is to be drawn in
each case is a question of fact." Smith v. South Normanton
Colliery Co. (1903), 1 K. B. 204; 5 W. C. C. 14.
The claimant was on a public road or path leading to the
place of employment, but not in the immediate vicinity of
his labor, when he stepped on a rock which turned under his
foot, throwing him to the ground, breaking a bone in the
left ankle and bruising the knee cap. It was held that he
was not injured in the course of his employment and compen-
sation was refused. Re J-. 0. Cassidy, Op. Sol. Dep. C. &
L., p. 224.
A storeman on his way from his hotel to a labor train
passed a mule team belonging to the Quartermaster's De-
406 bradbury's workmen's compensation law
Going to and from place of employment
partment on the public highway, and one of the mules
kicked him and broke his left wrist. It was held that the
man was not injured in the course of his employment and
compensation was refused. Re Joseph Gilkey, Op. Sol. Dep.
C. & L., p. 223. The claimant was on a public street going
to the Quartermaster's Depot to attend to his duties as night
fireman. He undertook to walk around a northbound
freight train, which had stopped at the street crossing, and
was struck by a southbound passenger train. It was held
that the workman was not injured in the course of his em-
ployment and compensation was refused. Re Patrick Fla-
herty, Op. Sol. Dep. C. & L., p. 225. In the last-mentioned
case the Solicitor said: "It may be said to be part of the em-
ploye's duty to get to the place of employment, but if his
method of traveling is not controlled by the employer, if he is
a free agent, it is thought this qualified duty is not sufficient
to raise, at the time, the relation of employer and workman.
In this instance it is quite evident that the claimant was not
upon the premises of his employer at the time of the accident,
but was going to the place of employment and received his
injury on a public highway used by the community in general.
He was not under the direction or control of his employer by
virtue of any contract or regulation specifiying the route to
be taken to and from his work, and in view of the former
rulings of this office in cases of this character and the nu-
merous authorities which hold that a person injured on his
way to or from work on a public highway is not in the course
of employment, except in those cases where the employe' at
the time of the injury is either upon the premises of his em-
ployer or under his control, I am of the opinion that the
claimant has failed to establish a claim for compensation,
under the Act."
An accident which occurs when a man is passing along a
public highway on his way to the place where he works, is
not one arising out of and in the course of his employment.
Holness v. Mackay & Davis (1899) , 80 L. T. 831 ; 1 W. C. C. 13.
INJURIES ARISING OUT OF EMPLOYMENT 407
Going to and from place of employment
A man who was employed as a shepherd was on his way to
the place where he was to be employed, in a wagon furnished
by his employer, and when at a distance of forty yards from
the cottage which he was to occupy the wagon was suddenly
jerked and the shepherd thrown off, receiving injuries which
proved fatal. It was held that the injury did not arise out
of and in the course of the employment, as the employment
had not commenced.1 Whiibread v. Arnold (1908), 99 L. T.
103; 1 B. W. C. C. 317.
A workman was engaged to load a van, and was promised
employment in unloading it at another place, if he would be
there by the time the van arrived. He agreed to be there,
and started on his bicycle, but on the way met with an ac-
cident. The County Court judge held that the employment
was continuous and awarded compensation. On appeal it
was held that there were two separate and distinct employ-
ments; one had ended and the other had not begun. The
accident, therefore, did not arise out of and in the course
of the employment. Perry v. The Anglo-American Decorat-
ing Co. (1910), 3 B. W. C. C. 310.
Where the giving to the workman by the employer of a
return railway ticket was merely a gratuitous concession by
the employer, and the workman was in no way obligated to
go or return from work on the train, it was held that an ac-
cident while the workman was on the way to the place of
employment, but before he reached the same, did not arise
out of and in the course of the employment. Nolan v. Porter
& Sons (1909), 2 B. W. C. C. 106.
A colliery company provided a train on their railway to
take the workmen from the colliery to their homes. A col-
lier on reaching the point nearest his home, three-quarters
of a mile from the colliery, met with an accident, while alight-
1 It seems difficult to harmonize this case and the case of Dairies v.
Rhymney Iron Co., cited below with the doctrine announced in many
adjudications that where an employer furnishes the conveyance he is
liable for accidents which happen thereon.
408 bradbury's workmen's compensation law
Going to and from place of employment
ing from the train. It was held that the accident did not
arise out of and in the course of the employment. Dairies v.
Rhymney Iron Co., 2 W. C. C. 22.
A servant employed to go to a certain place and do certain
work, who is transferred to and from such place by his em-
ployer, his pay being continued all the time, is, as far as the
employer's liability for injuries is concerned, employed in
and about the work from the time he leaves until he returns.
(E. L.) Alabama Great Southern Ry. Co. v. Brock, 49 So.
Rep. 453; 000 Ala. 000. The relation of master and servant
exists between a lumber company and its employes while
the latter are being transported by the company to and from
their work. (E. L.) Self v. Adel Lumber Co., 64 S. E. Rep.
112; 5 Ga. App. 846. Substantially the same doctrine has
been announced under the Massachusetts Workmen's Com-
pensation Act, where an employe was injured while being
transported to his place of employment; it being held that as
the contract of employment contained an implied obligation
to so transport the employe, that the injury arose out of and
in the course of the employment. Gilbert v. Employers'
Liability Assurance Corporation, Mass. Indus. Ace. Bd.
Where the employer contracts, either expressly or impliedly,
to provide free carriage by train for the workman to his
place of employment, the employment will be held to
begin when the workman enters the train, and therefore,
in case of an accident, the workman is entitled to com-
pensation. Holmes v. G. N. Rail. Co. (1900), 2 Q. B. 409;
2. W. C. C. 19. The claimant employed in the Panama
Canal Zone was going home from work riding on an engine
belonging to the United States. The engine struck a de-
pression in the track and left the rails. The claimant suf-
fered bruises and contusions which incapacitated him for
duty for more than fifteen days. It was held that the injury
arose out of and in the course of the man's employment. Re
Wm. Gerow, Op. Sol. Dep. C. & L., page 217. Where a
servant was permitted to ride on defendant's engine while
INJURIES ARISING OUT OF EMPLOYMENT 409
Going to and from place of employment
returning from his work to camp at night, it was held that
the master was still bound to use reasonable care for the
servant's protection. (E. L.) Stone-Webster Engineering Cor-
poration v. Collins, 199 Fed. Rep. 581. A fireman in the
service of a railway company was traveling to his home on
one of the company's trains after he had finished his work,
as he had a right to do, and he was last seen with a basket
in his hands and his face towards the door. A crash was
heard and he disappeared. He was injured so badly that
he died. It was held that there was evidence that the acci-
dent arose out of and in the course of his employment.
Pomfret v. Lancashire & Yorkshire Ry. Co. (1903), 89 L. T.
000; 5 W. C. C. 22. A workman was employed by a railroad
in building and repairing bridges and depots. The company
furnished a car in which the workmen lived and were trans-
ported along the road as their services were required. The
custom was to attach the car to the trains of the company
and move it in the progress of the work. It was held that
the workman was an employe of the company, not only
while engaged in building and repairing the bridges and
trestles, but also while being moved in the car. (E. L.)
Southern Ry. Co. v. West, 62 S. E. Rep. 141; 4 Ga. App. 672.
Where the employer furnished a train to carry the workmen
to and from their work, but did not require that they should
ride on this train, it was held that a workman about to enter
the train who was pushed off the platform and was killed
during the rush of workmen, had suffered an accident while
the relation of master and servant existed, and that his
widow as a dependent was entitled to recover compensation.
Cremins v. Guest, Keen & Nettkfold (1908), 1 K. B. 469;
1 B. W. C. C. 160.
A yard brakeman riding on a passenger engine by the
yard master's order, who has general charge of the engine
while in the yard, is not a mere licensee while riding on such
an engine going back and forth to his work, even though a
rule of the company required the engineer to prevent anyone
410 bradbury's workmen's compensation law
Going to and from place of employment
from riding on the engine except himself and a fireman.
(E. L.) Feneff v. Boston & M. B. Co., 82 N. E. Rep. 705;
196 Mass. 575. An employe1 of a street railway company
was injured while riding on a motor car, but was not actively
engaged in performing his work. It was part of his duty to
ride on the car in going from one place of work to another.
It was held that he was not a mere volunteer. (E. L.)
Central Kentucky Traction Co. v. Smedley, 150 S. W. Rep. 658;
150 Ky. 598. A workman was employed as a laborer in con-
nection with loading and unloading wagons, and accompany-
ing them while being hauled by a traction engine from one
quarry to another. While sitting on a wagon which was be-
ing so hauled, he dropped his pipe, and, in attempting to get
down to recover it, he lost his balance and fell in front of the
wheels of the wagon, which went over his leg, fatally injur-
ing him. It was held that the accident arose out of and in
the course of the employment. M'Lauchlan v. Anderson
(1911), 48 Scotch L. R. 349; 4 B. W. C. C. 376. The court
applied the rule laid down by the Lord Chancellor in the
case of Moore v. Manchester Liners (1910), A. C. 498, as
follows: "I think an accident befalls a man 'in course of
his employment if it occurs while he is doing what a man so
employed may reasonably do within a time during which he
is employed, and at a place where he may reasonably be
during that time to do that thing." The court added "a
workman of his sort may reasonably smoke, he may reason-
ably drop his pipe, and he may reasonably pick it up again."
A miner travelling to his work stepped out on the foot-
board when the train was slowing up to stop about sixty
yards from the station. Riding on the foot-board was ex-
pressly forbidden. The train was crowded. Other men
stepping out, he moved a short way along the foot-board
to make room for them and slipped and fell. It was held
that the accident arose out of the employment and com-
pensation was awarded. Watkins v. Guest, Keen & NetUe-
folds (1912), 5 B. W. C. C. 307. A laborer was on a train
INJURIES ARISING OUT OF EMPLOYMENT 411
Going to and from place of employment
going to his work, when he attempted to pass from one car
to another. The train was in motion and a jar or lurch
caused the man to fall between two cars. The trucks passed
over his body killing him instantly. It was held that the
accident occurred in the course of the employment and that
it was not due to the negligence of the decedent, and there-
fore compensation was awarded. Be Elroy Lopez, Op. Sol.
Dep. C. & L., p. 217.
A watchman employed by the Isthmian Canal Commis-
sion, while returning from work was injured after alighting
from a labor train and while walking on the adjoining track,
which was the only way of reaching the highway leading to
his home. It was held that the injury was received in the
course of his employment and he was entitled to compensa-
tion. Re Joseph Forde, Op. Sol. Dep. C. & L., p. 244. An
engine cleaner who lived at King's Cross, was carried free
by his employers, a railway company, to Hornsey. While
crossing the tracks for the purpose of getting to the place
where he worked, and shortly before the time for commen-
cing work, he was knocked down by a passing train and killed.
It was held that the employment commenced when he en-
tered the train at King's Cross and that the accident arose
out of and in the course of his employment. Holmes v. Great
Northern By. Co., 2 W. C. C. 19. The plaintiff, when struck
by defendant's car, was in the defendant's employ as foreman
of a concrete gang. While his regular duties were not to be
performed in and about the railroad yards, where he was in-
jured, yet as foreman of the crew he had charge of a boarding
car and a tool car which were to be placed in the yard where
he and his men were working. In order to have the cars
properly placed he was hunting for the yard master when he
was injured. It was held that the plaintiff could not be con-
sidered a trespasser or licensee, but the relation of master
and servant still existed between him and the defendant.
(E. L.) Missouri, K. & T. By. Co. of Texas v. Balliet, 107
S. W- Rep. 906; 48 Tex. Civ. App. 641.
412 bradbury's workmen's compensation law
Seamen and mechanics getting on and off vessels
A foreman, who was required at times to perform the
same kind of labor that was done by the men under him, had
ceased his work for the day, and departed from the premises.
He was on the public highway on his way home, when he
was struck by a rock thrown from a blast. It was held that
as it appeared that the claimant was injured on the premises
of his employer, without any fault of his own, and that at the
time of the injury he had not had sufficient time to get from
his place of employment to a zone_of safety, that for the
purposes of the Federal Act, the accident arose in the course
of the employment and that the claimant was entitled to
compensation. Re Nicholas Leonard, Op. Sol. Dep. C. & L.,
p. 247. A plumber's assistant having completed his work at
the home of a customer, four miles away from his employer's
shop, started homeward, driving along the State highway.
Soon after he passed a friend his body was found lying at the
side of the road and he was unconscious. He was taken to
a hospital where he died soon afterward. It was held that
this was a personal injury arising out of and in the course
of the employment and compensation was awarded to the
widow. Sanderson v. Globe Indemnity Co., Mass. Indus. Ace,
Bd. (Appeal pending to Supreme Judicial Court).
Where a railroad provides hand-cars for transporting
employes from the place of work to a point convenient to
their homes, though the journey is commenced after the
usual work of the day has ceased, the relation of master and
servant continues until the employes have reached their des-
tination. (E. L.) Cicalese v. Lehigh Valley R. Co., 69 Atl.
Rep. 166; 000 N. J. Law 000; (E. L.) Arkadelphia Lumber Co.
v. Smith, 78 Ark. 505; 95 S. W. Rep. 800. (E. L.) Wilson v.
Banner Lumber Co., 32 So. Rep. 460; 108 La. 590.
3. Seamen and mechanics getting on and off vessels.1
A seaman, when off duty, left his vessel on his own busi-
ness. The vessel was then alongside the quay, but on his
1 See preceding subdivision.
INJURIES ARISING OUT OF EMPLOYMENT 413
Seamen and mechanics getting on and off vessels
return, two hours afterward, it was some five or six feet
from the pier, the top of the rail being about three feet
lower than the quay. The vessel had no gangway, but a
ladder was used for getting on board. On his arrival at the
pier, the seaman, seeing no ladder, hailed, and, having got
no answer, he jumped from the pier to the vessel, with the
result that his leg struck against the rail, and he was perma-
nently injured. It was held that the accident arose out of and
in the course of the employment. Kearon v. Kearon (1911),
45 Irish L. T. 96; 4 B. W. C. C. 435.
A workman was descending the side of a ship by a rope
ladder. The ladder twisted suddenly, he gave a cry, and
then fell into the water. He was dead when picked up.
The medical evidence was that death was due to heart
failure and not to drowning and that the heart was in such
a state- that any slight exertion might have caused failure.
The County Court judge found that death was due to ac-
cident arising out of and in the course of the employment,
and awarded compensation. It was held on appeal that
there was evidence to support the finding. Trodden v.
J. McLennard & Sons (1911), 4 B. W. C. C. 190.
Where a watchman on board ship whose duty it was to
attend to the ship and its moorings was found drowned in
the morning between the dock and the ship, an award of
compensation by the County Court, based on the inference
that the death arose out of the employment, in the absence
of direct evidence, was sustained by the Court of Appeal.
Richardson v. Owners of Ship "Avonmore" (1911), 5 B. W.
C. C. 34.
A riveter working on a ship in dock, was about to go
ashore for his breakfast. When he came on deck he found
the vessel was being removed to a dry dock, and was al-
ready a short distance from the quay. The gangway had
been removed, and there was no means of getting ashore
except by slipping down a rope, which still held the vessel
to the quay. By means of this rope a fellow workman got
414 bradbury's workmen's compensation law
Seamen and mechanics getting on and off vessels
ashore safely, and the applicant attempted to follow him.
The rope gave way, and he was thrown against the quay
wall and injured. It was held by the Court of Appeal that
there was evidence to support the finding of the County
Court judge that the accident arose out of and in the course
of the man's employment. Keyser v. Burdick & Co. (1910),
4 B. W. C. C. 87. The deceased was a seaman on board
a steamship and had gone ashore with leave for purposes
of his own. The ship was moored to another vessel, which
was made fast to the quay, so that, in order to board his
own ship, the deceased had first to cross the deck of the
other vessel. There was evidence that the deceased, on his
return, safely boarded the other vessel, and got on to the
gangway between the two ships. The gangway gave way
and he fell into the water and was drowned. It was held
that the deceased met his death by an accident arising out
of and in the course of his employment. Leach v. Oakley,
Street & Co. (1910), 4 B. W. C. C. 91. A workman was
employed to watch trawlers as they lay in a harbor. He
was on duty for twenty-five hours, during which time he
had to provide his own food, and in connection with his
duties it was occasionally necessary for him to be on the
quay to which the trawlers were moored. In the course of
his watch he left the boats and went to a hotel near at hand
for some refreshments. He was absent a very short time,
had returned to the quay, and while descending a fixed
ladder attached to the quay to go on board one of the trawl-
ers, he fell into the water and was drowned. The arbitrator
found that the accident to the deceased arose out of and in
the course of his employment within the meaning of the
Act of 1906. It was held by the House of Lords that there
was evidence upon which the arbitrator could so find.
Jackson v. General Steam Fishing Co. (1909), A. C. 523;
101 L. T. 401 ; 2 B. W. C. C. 56. A fireman on board a steam-
ship lying off South Brooklyn, went on shore for the purpose
of obtaining for himself certain necessaries which were not
INJURIES ARISING OUT OF EMPLOYMENT 415
Seamen and mechanics getting on and off vessels
provided by the owners of the ship. On returning to the
ship he fell off a ladder, which was the only means of access
from the quay to the ship and was drowned. It was held
by the House of Lords that the accident arose out of and in
the course of the man's employment and that therefore his
widow was entitled to compensation. Moore v. Manchester
Liners (1908), 3 B. W. C. C. 527, rev'g 1 K. B. 417; 2 B.
W. C. C. 87. A seaman in returning to his ship passed over
a gangway from the wharf, and had one foot on the rail of
the ship and the other on a ladder leading from the rail to
the deck, when he overbalanced and fell over the side of the
ship and was drowned. It was held that the accident arose
out of and in the course of the workman's employment.
Canavan v. Owners of the Steamship "Universal" (1910),
3 B. W. C. C. 355. A steward of a steamship discharging at
the port of Montreal, Canada, went on shore in the evening,
as he was permitted to do. Returning late in the evening
to his ship, as was alleged, in a state of intoxication or semi-
intoxication, he attempted to board the ship by using the
cargo skid or stage, instead of the gangway. In doing so
he slipped and fell and received injuries from the effect of
which he died. It was held that the injury arose out of
and in the course of the employment. Robertson v. Allan
Brothers & Co. (1908), 98 L. T. 821 ; 1 B. W. C. C. 172.
When a ship was lying in Glasgow harbor a seaman went
ashore without leave and returned to his ship later in the
evening in a state of intoxication. He went to his bunk
and was found next morning lying injured at the bottom
of the hold of the ship and from these injuries he subse-
quently died. There was no evidence as to how the man
got to the place where he was injured. To reach the place
it was necessary for him to pass through a door which was
broken or forced open, by whom there was no evidence to
show. It was held that there was no evidence that the
accident arose out of the employment. O'Brien v. Star
Line (1908), 45 Scotch L. R. 935; 1 B. W. C. C. 177.
416 bradbury's workmen's compensation law
Seamen and mechanics getting on and off vessels
A workman engaged upon a ship, working overtime,
went ashore between 9:30 and 10 a. m. to buy some bread.
He was told by the foreman not to go, and could previously,
during the interval allowed for tea, have procured the bread.
Upon his return, while attempting to jump from the quay to
the ship, he fell and was killed. It was held that the accident
did not arise out of and in the course of the employment.
Martin v. Fulkrlon & Co. (1908), 45 Scotch L. R. 812; 1
B. W. C. C. 168. The second engineer of a steam trawler
which was in dry dock at the time, went ashore to his home
for dinner. As he returned to the ship he fell into a dry dock
and was killed. It was held that the accident did not arise
out of and in the course of the engineer's employment.
Gilbert v. Owners of the "Nizam" (1910), 3 B. W. C. C. 455.
In the last-mentioned case the court said : " I decline to assent
to the view that a ship is in a different position from a factory
for this purpose. This is a simple case where a man has been
to his own home to get his dinner, and has met with an acci-
dent on his way back to the scene of his labors. That ques-
tion has been raised and decided against the workman, not
once, but again and again by this court."
The captain of a vessel left his ship in Bangor Roads and
went to a hotel a hundred yards away from the dock. He
returned to the dock at about 11 p. m. and hailed his ship for a
boat. He was not heard from for some time, but eventually
a boat put off. Before the boat reached him he fell over the
dock side and was drowned. The evidence was consistent with
his going to the hotel for his own pleasure, or in the course
of his employment. It was held that the dependents had
not discharged the onus of proving that the accident arose
out of and in the course of the employment. Hewitt and
Others v. Owners of the Ship "Dutchess" (1910), 102 L. T. 204;
3 B. W. C. C. 239. See also Fletcher v. Owners of Steamship
"Duchess" (House of Lords) 1911, 4 B. W. C. C. 317. "A
sailor left his ship and went for a week-end to his son's house,
which was some considerable way down the river at Poplar.
INJURIES ARISING OUT OF EMPLOYMENT 417
Seamen and mechanics getting on and off vessels
He took his dinner and tea there and he slept there. On
Monday morning he started to rejoin his vessel. On his
way he slipped on some steps at the riverside and injured
himself. We certainly cannot go the length of saying that
this was an accident arising out of and in the course of this
man's employment. The case would be exactly the same if
he had slipped on the pavement in the street before he came
to the steps. We have pointed out not once or twice but
often that, save in certain exceptional circumstances, the
Act does not extend to and protect the workman when on
his way from his house to his employment. Still less does
it protect him when out for his own pleasure for a week-end."
Kelly v. Owners of the "Foam Queen" (1910), 3 B. W. C. C.
113. Where an employer gave to an employe1 a railway
ticket and ordered him to report on board ship for work at
7 a.m., and while the workman was on his way to the ship he
fell off the dock and was injured, which dock was not under
the control of his employer, it was held that the giving of
the railway ticket was merely a gratuitous concession by the
employers and that it was in no way obligatory on the work-
man to go or return from his work by train as provided in the
ticket, and that therefore the accident did not arise out of
and in the course of the man's employment. Nolan v. Porter
and Sons (1909), 2 B. W. C. C. 106. A steward on a steam-
ship had gone ashore with leave. At about 10 p. m. he was
passed onto the wharf by the doorkeeper who saw him make
his way toward the ship. He was not seen boarding the
gangway, nor was there any evidence that he ever reached
it, but the watchman heard a splash in the water and a cry
of "Man overboard." When the body was recovered life
was extinct. It was held that the applicant for compensation
had not discharged the onus of proving that the accident
arose out of and in the course of the man's employment.
Kitchenham v. Owners of S. S. "Johannesburg" (1910), 4
B. W. C. C. 91, affirmed by the House of Lords, 4 B. W. C. C.
311.
27
418 bradbury's workmen's compensation law
Seamen and mechanics getting on and off vessels
A sailor was seen about eight p. m. about to leave his ship,
which was at a dock, to get provisions. Early next morning
he was found drowned in the dock, ten or fifteen feet from
the gangway of the ship and three feet from the side of the
dock. His cap was found on the dock and there was a fresh
wind blowing. It was held that the accident did not arise
out of the ■ empteyment and compensation was refused.
Mitchellv. S. S. "Saxon" (1912), 5 B. W. C. C. 623.
A seaman had been ashore with leave, for medical attend-
ance. On his way back to the ship, he found that the small
boat in which he had come ashore had been removed, and
that there was nothing at the jetty except a 27-foot lifeboat,
with a rudder, but no oars. It was a boat that should have
been manned by six oarsmen. The ship was one hundred
yards from the shore, and the wind was strong and squally.
The wind and tide were running more or less in the direction
in which the ship lay. The seaman attempted to get to the
ship by going alone in the lifeboat, using the rudder as a
paddle. He was blown out to sea and drowned. It was
held, that the accident did not arise out of the employment.
Halvorsen v. Salvesen (1911), 49 Sc. L. R. 27; 5 B. W. C. C.
519.
A seaman who had been on shore returned to the dock
hopelessly drunk. He was thrown, like a sack of sand, on
the deck of the ship just as it was moving off. He fell on his
hands and knees and shortly after staggered to his feet and
rolled overboard and was drowned. It was held that the
accident did not arise out of the employment, but was due
entirely to his hopeless state of intoxication. Frith v. S. S.
" Louidanian " (1912), 5. B. W. C. C. 410.
A seaman went ashore with leave for his own purposes.
When he returned late at night he found that the ship had
meanwhile been moved to another part of the dock. He
proceeded to make his way to the ship along the dock side,
which had many railway lines upon it. He was injured by a
train on the docks, about 200 yards from his ship. It was
INJURIES ARISING OUT OP EMPLOYMENT 419
Injury before work begins or after it ceases
held that the accident did not arise out of the employment
and compensation was refused. Biggart v. S. S. "Minne-
sota" (1911), 5 B. W. C. C. 68.
A sailor, returning on board his ship after a trip on shore,
not connected with his employment, fell into the water from
steps leading from the gangway, of which they formed part,
and was drowned. It was held that this was not an accident
arising out of and in the course of the employment. Hynd-
man v. Craig & Co. (1910), 44 Irish L. T. 11; 4 B. W. C. C.
438.
A seaman while returning on board ship from the shore,
when the ship was lying in port, slipped on the gangway and
fell over the gangway ropes, striking his head in falling, and
received injuries which proved fatal. There was no evidence
to show why the deceased had gone there, whether on the
service of the ship or for his own purposes, or with or without
permission. It was held that the evidence being equally
consistent that the deceased was or was not on the ship's
business, the applicant for compensation had not discharged
the onus resting upon her of showing that the injury arose
out of and in the course of the employment. McDonald v.
Owners of Steamship "Banana" (1908), 1 B. W. C. C. 185.
4. Workmen injured on employer's premises before work
begins, after work ceases, or during cessation of work.1
An employe is still in the course of his employment while
coming to or going from the work, while he is upon the
premises of the employer in the immediate vicinity of his
labor. (E. L.) McGregor v. AuU, 83 Wis. 539; 53 N. W. Rep.
845; (E. L.) Olsen v. Andrews, 168 Mass. 261; 47 N. E. Rep.
90; (E. L.) Chicago R. I. & T. Ry. Co. v. Oldridge, 33 Texas
Civ. Ap. 436; 76 S. W. Rep. 581. When an employe1 arrives
at the place of work shortly before the regular time to begin
work and is doing anything relating to the employment and
1See two preceding numbered subdivisions. See also paragraph 16,
post, page 475.
420 bkadbury's workmen's compensation law
Injury before work begins or after it ceases
is injured, he is entitled to compensation. Sharp v. Johnson
& Co. (1905), 92 L. T. 675; 7 W. C. C. 28. Plaintiff who was
employed by defendant to work as a gardener had walked
to his place of work, obtained a rake from a tool house and
then went to hang his coat on a stand pipe, near a covered
well, and to get a drink of water therefrom, during which he
crossed the cover*of an old well which lay in his way. By
reason of the decayed condition of the covering it broke and
the plaintiff fell into the well and was injured. It was held
that in crossing the cover of the well, he was acting in the
scope of his employment. (E. L.) Cordler v. Keffel, 119 Pac.
R. 658; 161 Cal. 475.
A workman injured by an explosion while on the prem-
ises of the Government waiting for work to begin, is injured
in the course of employment. Re Pinna Giovanni, Op. Sol.
Dep. C. & L., p. 222. In the last-mentioned case the claim-
ant being warned by the blowing of a whistle that a blast
was to go off, got under a car for protection, and was struck
on the elbow by a stone hurled by the blast.
An employe is not out of the employment of his employer
until he is off his premises. (E. L.) Broderick v. Detroit
Union Depot Co., 56 Mich. 261; 22 N. W. Rep. 802. Where
a workman who had finished his day's work and was chang-
ing his clothes preparatory to going home, met with an acci-
dent, it was held that the relation of master and servant
still existed between him and his employer. (E. L.) Helmhe
v. Thilmany, 107 Wis. 216; 83 N. W. Rep. 360. The same
rule was applied where a workman had finished his day's
task and had just changed his clothes preparatory to going
home. (E. L.) Helmke v. Thilmany, 107 Wis. 216; 83
N. W. Rep. 360. Where a fireman was killed by the burst-
ing of a hot water tank, near which he was washing his
overalls and jumper, it was held that he was engaged in
the line of his employment when killed, so that the master
was liable if he was negligent in failing to keep the tank
in good condition. (E. L.) Muller v. Oakes Mfg. Co., 113
INJURIES ARISING OUT OF EMPLOYMENT 421
Injury before work begins or after it ceases
App. Div. 689; 99 Supp. 923. Where a workman was
killed on his employer's premises while leaving them by
a short cut, which he had never used before, but which
other men were in the habit of using, it was held that
his dependents were entitled to compensation. M'Kee v.
Great Northern Railway Co. (1908), 42 Irish L. T. 132; 1 B.
W. C. C. 165. A sailor washing his clothes in a dark alley-
way, fell down a half open hatchway and was injured. It
was found that it was necessary for the sailor to wash his
clothes, and that he was doing it in a reasonable place and
manner. It was held therefore, the accident arose out of
the employment and compensation was awarded. Cokolon
v. Ship "Kentra" (1912), 5 B. W. C. C. 658.
The claimant was going into one of the Government
shops when he stumbled against a piece of iron and fell
against a plate of iron, cutting his hand severely. The
Solicitor of the Department in deciding the case stated that
it was to be inferred that the claimant had quit work and
had gone into the shop to do something necessary, or at
least proper, for him to do, before he was finally prepared
to leave his employment for the day. It was held that the
injury occurred in the course of the man's employment and
that he was entitled to compensation. Re William P. Fahey,
Op. Sol. Dep. C. & L., p. 218.
A woman employe1 employed by the manufacturers of
worsted and silk yarns, had charge of two machines known
as "spindle gill boxes." Just before noon she left her ma-
chines and went to the other side of the factory to speak to
the boss. She was not feeling well and wanted to tell him
that she would not return to work in the afternoon. Not
finding the boss she went to an alleyway formed by two
rows of machines, to dress and comb her hair. It appeared
that in the manufacture of yarns, under certain conditions,
small pieces of wool were constantly falling into the air and
settling on the girls' hair. On the morning in question
the petitioner, for the purpose of removing the wool from
422 bradbury's workmen's compensation law
Injury before work begins or after it ceases
her hair, went to the place mentioned and removed her
combs and hair pins and bending forward, her hair, hang-
ing down over her head, was caught by and became en-
tangled in a revolving wheel eighteen inches above the floor.
She was suddenly pulled from the floor and her scalp almost
entirely torn from her head. It was held, under the princi-
ples established m Bryant v. Fissell, 86 Atl. Rep. 458; 000
N. J. Law 000; and Brice v. Edward Lloyd (1909), 2 K. B.
804; 2 B. W. C. C. 26, that the accident arose out of and
in -the course of the employment and compensation was
awarded. TerlecM v. Strauss & Co. (Mercer Common
Pleas, May 9, 1913), 36 N. J. Law J. 185.
The claimant was employed in the carpenter shop of the
Rock Island Arsenal. A time clock was there installed for
recording the time of the employes. While the claimant
was in the act of "ringing out" at the end of the day's work
he was pushed by some person behind him. In trying to
keep from falling he slipped and tore the ligaments of his left
leg. It was held that the accident arose out of and in the
course of the employment and that the man was entitled to
compensation. Re E. A. Rugan, Op. Sol. Dep. C. & L., p. 220.
When the whistle blew a workman started on a run for the
time clock, a distance of about one hundred and fifty feet.
After proceeding about thirty feet he collided with a fellow
employ^, fracturing or injuring one or more of his ribs. He
continued to work after the injury, thinking it was not se-
rious. He was not treated by a physician until four or five
days later. No notice was given to the employer of the
injury until after the workman's death, which occurred
fifty-one days after the injury. It was contended that the
workman's ribs punctured or affected the lungs, resulting
in his death, and that the original injury was the cause of
such death. The employer contended that the death was
not the result of the accident and that the injury did not
arise out of and in the course of his employment, and further,
that he was guilty of intentional and wilful misconduct.
INJURIES ARISING OUT OF EMPLOYMENT 423
Injury before work begins or after it ceases
The Board ruled that the accident was the proximate cause
of the workman's death and that, under the circumstances,
the failure to give notice was not a bar to the claim. The
Board further held that the deceased was acting in the course
of his employment when he received the injury. On this
point the Board said: "He was required to proceed from his
bench to the time clock and to punch the time clock before
leaving the room in which he was working. This was a duty
imposed upon him by his employer, and he was in the act of
performing that duty at the time he received 'the injury. We
are also of the opinion that the injury arose out of his employ-
ment, within the meaning of Act 10, Public Acts of 1912.
The evidence fairly shows that it was customary for the men
to run for the time clock when the whistle blew and crowd-
ing and collisions resulted and were likely to result. Did
the action of deceased in running toward the time clock
amount to intentional and wilful misconduct within the
meaning of the Compensation Law? The evidence shows
that respondent had forbidden such running by rule, but it
was also shown that such rule was not enforced. Rayner's
immediate foreman acknowledged that the rule against
running was not enforced. The mere fact that a rule was
made forbidding running to the time clock is not controlling
when its general violation is acquiesced in by the employer.
The action of Mr. Rayner in running to the clock did not
differ materially from the action of the considerable number
of other employe's. It did not amount to intentional and
wilful misconduct." Rayner v. Sligh Furniture Co., Mich.
Indus. Ace. Bd., June, 1913.
A workman is entitled to immunity from injury through
another's negligence while seeking ingress and egress from
his place of employment. (E. L.) Whatley v. Zenida Coal
Co., 122 Ala. 118; 26 S. Rep. 124. An employe was in-
jured while leaving her place of employment by means of a
common stairway, and it was held that the injury arose out
of and in the course of the employment. Sundine v. London
424 bradbtjky's workmen's compensation law
Injury before work begins or after it ceases
Guarantee & Accident Co., Mass. Indus. Ace. Bd. (Appeal
pending to the Supreme Judicial Court.) A workman
was killed on the way out of a mine. It did not appear
but that it was time for him to quit and leave the mine.'
He had received a note from the foreman requiring his
presence at the surface. It was held to be error to charge,
as a matter of law, that he was not acting within the scope
of his employment when killed. (E. L.) Whatley v. Zenida
Coal Co., 26 So. Rep. 124; 122 Ala. 118. A collier, after
he was suspended from work, remained in a portion of
the mines, where he was told not to be, and there met with
an accident about two hours after his suspension. It was
held that the accident arose out of and in the course of the
employment. Smith v. South Normanton Colliery Co. (1902),
88 L. T. 5; 5 W. C. C. 14.
While a servant whose duty it is, at any time during
working hours, when upon his master's premises, to per-
form the duties incident to his employment, starts to leave
the premises on his private business and is injured by the
alleged negligence of the master while upon the premises,
and during working hours, he is at the time, in the employ-
ment of the master. (E. L.) Adams & West v. Iron Cliffs Co.,
78 Mich. 271; 44 N. W. Rep. 270. In the case of Gane v.
Norton Hill Colliery Co. (1909), 100 L. T. 979; 2 B. W. C. C.
42, the injured workman was on his way home, after having
completed his day's work. There were three ways he could
go over the defendant's premises. No directions were given
to the man as to which way he should or should not go. The
shortest way and the one used by most of the men, was over
certain parts of the employer's premises, through a doorway,
down some steps and across some railway lines, which were
on the premises and under the control of the employers.
In going in this way the workman was passing under some
trucks, which some other workmen had just safely passed
under going in the same direction. While doing so the
trucks moved, passing over his legs and crushing both of
INJURIES ARISING OUT OP EMPLOYMENT 425
Injury before work begins or after it ceases
them, requiring their amputation. It was held that the
accident arose out of and in the course of the workman's
employment, and that he was entitled to compensation.
The court said that it did not wish to lend any color to the
suggestion that a workman is entitled to the protection of
the Compensation Act during the whole period necessary to
get to his own home from the place where he is employed.
But under the peculiar circumstances of that case, it was
held that the workman was entitled to compensation.
A policeman employed by the Isthmian Canal Commis-
sion in the Canal Zone, at about midnight, was walking
along the Panama Railroad track on his way to report for
duty. It was raining and the night was very dark. When he
had almost reached his destination he slipped on a cross tie
and stepped into a drain about 12 inches deep. He felt a
pain but continued to work and about three weeks later con-
sulted a physician who discovered that he had a hernia. It
was held under the peculiar conditions existing in Panama,
where the employes are compelled to travel on the Govern-
ment property in going to and from their work, that the in-
jury occurred in the course of the employment and compen-
sation was awarded. Re 0. D. Koontz, Op. Sol. Dep. C. &
L., p. 229.
A watchman on a steam shovel employed by the Isth-
mian Canal Commission, was on his way to work and was
following the path leading to the shovel. It appeared that
there were practically no roads or sidewalks in the neighbor-
hood and that employes going to and from their work must
necessarily cross many railroad tracks of the Commission,
and in many cases climb over freight cars belonging to and
operated by the Commission. This claimant was climbing
over a train of cars and was injured while jumping to the
ground. It was held that under the peculiar circumstances
existing at the place in question, the claimant was entitled to
compensation. Be Joseph Chambers, Op. Sol. Dep. C. & L.,
pp. 226, 228.
426 bradbury's workmen's compensation law
Injury before work begins or after it ceases
A miner descended into his pit by the cage and got out
at the wrong level. He then descended by a shaft near the
cage, and instead of proceeding to his work, he walked to a
place some 700 feet along a road, which by its nature was
very different from his proper road. At this point he was
found dead, having been scalded to death by the steam which
escaped from the Colliery engines. There was no evidence
to show why he went there. It was held that the accident
arose out of and in the course of the employment. Sneddon
and others v. Greenfield Coal and Brick Co. (1910), 47 Scotch
L. R. 337; 3 B. W. C. C. 557. A collier was injured by a gate
swinging back on him. The land on both sides of the gates
belonged to his employers and the gates were about 150
yards from the lamp-room to which the collier was first going
on his way to work. On a claim for compensation the County
Court judge held that the workman was entitled to com-
pensation and that the accident arose out of and in the course
of the employment. It was held on appeal that there was
evidence to support this finding. Hoskins v. J. Lancaster
(1910), 3 B. W. C. C. 476. A miner's employment has com-
menced when he has obtained his pit lamp and his tallies
and is waiting at the pit brow to descend. Fitzpatrick v.
Hindley Field Colliery Co. (1901), 3 W. C. C. 37; 4 W. C. C. 7.
The plaintiff was a wiper in the defendant's round house.
In going to his work along a path which he and the others
employed in the round house were accustomed to use, he was
injured while crossing the track between some cars, which
had been left apart for the purpose of the path. It was held
that the plaintiff was at the time of the injury in the em-
ployment of the defendant. (E. L.) Ewald v. Chicago & N.
W. Ry. Co., 70 Wis. 420; 36 N. W. Rep. 12.
Where an employer furnishes an elevator for the trans-
portation of its employes to the upper story of a building,
the relation of master and servant exists during such trans-
portation. (E. L.) Putnam v. Pacific M. Co., 000 Oregon,
000; 130 Pac. R. 986.
INJURIES ARISING OUT OF EMPLOYMENT 427
Injury before work begins or after it ceases
Where a workman is injured on the ground floor of the
factory of his employer while going to his work on an upper
floor, this is in the course of his employment and he is en-
titled to compensation. Holness v. Mackay & Davis (1899),
80 L. T. 831 ; 1 W. C. C. 13. A workman had to come to the
place of his work by a train arriving twenty minutes before
work actually commenced. It was the practice of the work-
men, recognized by the employers, to deposit their tickets
on the ledge of the office pigeonhole, and then, if so minded,
to breakfast at a mess cabin provided by the employers.
A workman, while depositing his ticket, was injured by fall-
ing into an excavation. It was held that he was entitled to
compensation. Sharp v. Johnson & Co. (1905), 92 L. T.
675; 7 W. C. C. 28.
In the case of Jackson v. General Steam Fishing Co. (1909),
A. C. 523; 2 B. W. C. C. 56, a workman was employed to
watch trawlers as they lay in a harbor. He was on duty for
twenty-five hours, during which time he had to provide his
own food, and in connection with his duties it was occasion-
ally necessary for him to be on the quay to which the trawlers
were moored. In the course of his watch he left the boats
and went to a hotel near at hand for some refreshment. He
was absent a very short time, had returned to the quay, and
while descending a fixed ladder attached to the quay to go
on board one of the trawlers, he fell into the water and was
drowned. It was held by the House of Lords that the acci-
dent arose out of and in the course of the man's employment
and that he was entitled to compensation.
A workman employed by a farmer, returning home tem-
porarily during a storm, was injured while crossing a plank
laid over a dyke, and it was held that the accident arose out
of and in the course of his employment. Taylor v. Jones
(1907), 1 B. W. C. C. 3.
A fruit picker on piecework was told to stop what she was
doing and go to work at another part of the farm. While
proceeding as instructed she met with an accident and it
428 bradbury's workmen's compensation law
Injury before work begins or after it ceases
was held that it arose out of the employment. Jesson v. Bath
(1902), 4 W. C. C. 9.
The use of a bridge by an employe of a bridge contractor,
in going to his work, was held to be so far incidental to his
service that, in reference to risks growing out of the use of it
by others engaged in the contractor's service, he should be
deemed a servanf. (E. L.) Olsen v. Andrews, 168 Mass.
261; 47 N. E. Rep. 90.
A motorman received an injury while riding to work on a
car which was used for the transportation of mail. It was
necessary that he should assist in unloading the mail in
order to get to work on time and this had been his custom
for four years prior to the injury. His day's pay began at
5 :30 o'clock, whether his car left the barn or not. The mail
car was late and the injury occurred at 5:48. It was held
that the injury arose out of and in the course of the employ-
ment. Andrews v. Employers1 Liability Assurance Corpora-
tion, Mass. Indus. Ace. Bd. (Appeal pending to Supreme
Judicial Court.)
An engine hostler, who was injured while sitting in an
engine cab window, on his way to a coal shute, about 200
yards from the roundhouse, where he was to help coal the
engine, was held to be in the line of his duty at the time he
was injured, though he had no work to perform on the en-
gine. (E. L.) Harvey v. Texas & P. By. Co. 166 Fed. Rep.
385. A pumper, whose duties required him to ride between
pumping stations on the company's trains, on a pass given
to him for that purpose, was held to be as much in the com-
pany's service while necessarily riding between stations in
the proper place on the train, as when operating the pumps.
(E. L.) Kunza v. Chicago & N. W. Ry. Co., 123 N. W. Rep.
403; 140 Wis. 440. While a fireman employed by a railroad
company in the District of Columbia is rightfully and neces-
sarily on the company's premises, on his way to assume his
duties to which he has been called by the company, the rela-
tion of master and servant exists between him and the com-
INJURIES ARISING OUT OP EMPLOYMENT 429
Injury before work begins or after it ceases
pany, within the contemplation of the Federal Employers'
Liability Act. (E. L.) Philadelphia B. & W. R. Co. v.
Tucker, 35 App. Dec. 123. Where a railroad company for
nine years without objection, permitted its employes to
ride on its engine between certain stations in the discharge
of their duties, it was held to be charged with knowledge of
their custom in doing so. (E. L.) Heilig v. Southern Ry. Co.,
67 S. E. Rep. 1009; 152 N. C. 469. A section foreman, rid-
ing on a locomotive tender, was held to be not a trespasser
as affecting the company's liability for his death caused by
the tender jumping the track, where, after completing work,
he was ordered or invited to board the train which consisted
of a flat car, caboose, and the engine, the cars being crowded.
(E. L.) Magee v. Mississippi Cent. R. Co., 48 So. Rep. 723;
95 Miss. 678.
A laborer was employed to gravel a new and unfinished
track upon which no train had rim. While walking upon it
towards the place where he was to commence his day's work,
he was overtaken and injured by a passenger train using the
new track in consequence of a temporary obstruction on the
old track of the same corporation, which was parallel and
about six feet distant. It was held that he was in the de-
fendant's employment and doing what was essential to en-
able him to discharge his particular duty. It was held, fur-
ther, that he was injured by reason of a risk which he had
assumed as such employe1 and recovery was refused under
the doctrines relating to master and servant which then
existed. (1858) (E. L.) Boldt v. New York Central Ry. Co.,
18 N. Y. 432.
A rear brakeman of a freight train was killed at work
while the switch crew had control of the cars. He worked
under the direction of the conductor in fitting up the caboose
and received no compensation for the work, but was merely
getting ready for his work. It was customary for rear brake-
men to keep supplies in the caboose and to direct the engi-
neer where to place the caboose to take on supplies. It was
430 bradbury's workmen's compensation law
Injury before work begins or after it ceases
held that decedent, though working without pay, and not
exactly on duty, was engaged in the line of his employment
and entitled to the same protection from injury as ordinary
employes. (E. L.) Cincinnati N. 0. & T. P. Ry. Co. v.
Daniels, 141 S. W. Rep. 1194; 146 Ky. 86.
A servant of a railroad company who was rightfully in
the company's yaftls and near its tracks was injured by the
fall of a door of a box car, during a pause in the work, while
he was'sitting down. It was held that the fact that at the
time of the accident he was not in the active performance
of the duties of his employment, did not relieve the railroad
company. (E. L.) Houston, E. & W. T. Ry. Co. v. McHale,
105 S. W. Rep. 1149; 47 Tex. Civ. App. 360. Where a boy
employed in a sawmill sat down for a short time to rest, and
was injured by the machinery, it was held that he had not
departed from the scope of his employment and the master
was liable. (E. L.) Jacobsoh v. Merrill & Ring Mill Co., 119
N. W. Rep. 510; 107 Minn. 74. Where a rule permitted one
of four men, employed as off-bearers from a re-press machine
in a brick plant, to take a turn at resting while the others
worked, an employe while resting is engaged in the per-
formance of his duty the same as if occupied. (E. L.)
Pittsburg Vitrified Pav. & Bldg. Brick Co. v. Fisher, 100 Pac.
Rep. 507; 79 Kans. 576.
Where an employe" in a saw mill, while on his way to
discharge a duty which he had been ordered to perform, in
passing along one of the open thoroughfares of the mill,
stopped to exchange a remark with a fellow employe, con-
cerning the operation of the machinery, and was injured by
the breaking of a belt, it was held that such action on his
part was not inconsistent with the proper discharge of his
duty and he was not precluded from recovery on the ground
that he was not engaged in the discharge of any work.
(E. L.) Moore v. W. R. Pickering Lumber Co., 29 So. Rep.
990; 105 La. 504.
Where the plaintiff, a section hand on a railroad was
INJURIES ARISING OUT OF EMPLOYMENT 431
Injury before work begins or after it ceases
directed by his superiors to assist a wrecking crew in clearing
the track, it was held that the fact that at the time of the
accident the plaintiff had completed the particular part of
'the work assigned to him, and went, without orders, to the
place where he was injured, to see if there was anything for
him to do there, and at the time of the injury was not at
work, did not deprive him of the right to recover on the
ground that he was merely a bystander. (E. L.) Reed v.
Missouri, K. & T. Ry. Co., 68 S. W. Rep. 364; 94 Mo. App.
371.
An employe1 of a manufacturing company, while at work
near the factory, at the hour of 4 a. m. became cold, and
obtained permission from the foreman of the work to go into
the factory building to warm himself. While attempting to
enter he fell into an uncovered cistern, containing boiling
water, about four feet from the floor. It was held that the
jury were justified in finding that at the time of his injury
the employe was engaged in the line of his duty. (E. L.)
Parkinson Sugar Co.v. Riley, 50 Kansas 41 ; 31 Pac.Rep. 1090.
An employe- in a coal mine, becoming sick from the bad
air, quit his work before the end of the day, and while going
out, met the superintendent, who stopped him to inquire
why he was quitting. He was injured while in conversation
with the superintendent. It was held that the injury oc-
curred during the course of his employment. (E. L.) South-
ern Coal & Coke Co. v. Swinney, 42 So. Rep. 808; Ala.
It has been held that where an employe- was injured while
off duty, but occupying sleeping and living quarters provided
by the master, that such injury was in the course of the
employment. (E. L.) International Great Northern Ry. Co.
v. Ryan, 82 Texas 565; 18 S. W. Rep. 219. The claimant was
employed as a laborer in the Reclamation Service, and
incidental to his employment there was furnished to him-,
along with other employe's, a bunk house for lodging pur-
poses, which was located at the site of the employment.
These bunk houses were occupied by several men, each
432 bradbury's workmen's compensation law
Injury before work begins or after it ceases
taking a turn supplying the wash water for all. At about
six o'clock in the morning, the claimant was in the act of
taking his turn at supplying the water and while doing so he
slipped on the ice and was injured. The accident happened*
during the interval between working hours. It was held that
the injury happened while performing an act in connection
with and incidental to the employment and that the man was
entitled to compensation. Re Gottlob Joos, Op. Sol. Dep. C. &
L., page 238. A freight conductor, who was required to be
within call and who was expected to occupy the caboose of
his train at night, while awaiting the call to go on duty, and
who had the right to do so as a privilege under his contract,
and who so occupied it, was, while occupying it, held to be
in the discharge of his duties, although his pay stopped on
his registering upon his arrival and did not begin until he
was called to make his return trip. (E. L.) Moyse v. Northern
Pacific Ry.Co., 108 Pac. R. 1062; 41 Montana, 272,
The defendant railroad company maintained as a club
house, for the use of its employes while waiting for trains, a
building access to which by the employes and the public
generally had been, for a number of years across the defend-
ant's tracks. The plaintiff was an extra brakeman, who was
employed by the defendant for particular shifts only. He
had been told that he might be called on to go out on a train
during the night. He was struck by one of the defendant's
engines while crossing the tracks to the building, in order to
be on hand if called. It was held that at the time of the
accident the plaintiff was not an employe1 of tho defendant.
(E. L.) Best v. New York Central & Hudson R. R. Co., 117
App. Div. 739; 102 Supp. 957. An employe in railroad
shops passing along a railroad track on going from his work
was held not connected with or employed on the railroad,
within § 83 of the Railroad Law and the railroad company
owed him only the duty to refrain from wantonly injuring
him. (E. L.) Mclntyre v. Long Island R. Co., 150 App. Div.
783; 135 Supp. 309. Where an employe of a railroad com-
INJURIES ARISING OUT OP EMPLOYMENT 433
Injury before work begins or after it ceases
pany, while off duty, was directed to report at a certain place
as soon as possible, and in complying with this direction
walked along the tracks as a matter of convenience and to
save time, it was held he was not within the course of his
employment while on the tracks, and the engineer of an
approaching train was not bound to keep a lookout for him.
(E. L.) Byrket v. Lake Shore & M. S. Ry. Co., 80 N. E. Rep.
1124; Ohio ; aff'g 29 Ohio Cir. Ct. Rep. 614. Where
a workman, having finished his day's work, was walking
home along a private branch railway leading from his em-
ployer's colliery to the main fine of a railway company, and
was knocked down by an engine of his employers 230 yards
from the place where he had been working, it was held that
he was not entitled to compensation. Caton v. Summerlee &
Mossend Iron Co. (1902), 39 Scotch L. R. 762.
In the case of Gilmour v. Dorman, Long & Co. (1911), 105
L. T. 54; 4 B. W. C. C. 279, a workman was accustomed to
go to his work by a footpath which ran over vacant land be-
longing to his employers, and afterwards along a railway
line, to the factory where he was employed. While on his
way to work he was injured by slipping on some ice on the
vacant land, a quarter of a mile from the place where he had
to work. It was held by the Court of Appeal in England
that the accident did not arise in the course of his employ-
ment. In the case of Walters v. Staveley Coal Co. (1911), 105
L. T. 119; 4 B. W. C. C. 303, a miner, proceeding to his work
along a footpath prepared by the employers for the work-
men's convenience, slipped on some steps, at a point about a
mile away from the place of employment. There was evi-
dence that the employers knew the steps were not safe. It
was held that the accident did not arise in the course of the
employment. Lord Shaw, in a concurring opinion said : " In
this case there was a circuitous public road, and there was a
short cut from one part of that public road to another. It was
optional to the workman to take the short cut or not to take
it. Only when the point was reached where the short cut was
28
434 bradbury's workmen's compensation law
Injury before work begins or after it ceases
at an end the workman had gone either by it or by the circui-
tous public road, and not till then, did he reach the place
which was the place of his employment. There was no con-
tract or obligation, direct or indirect, on his part, that he
should use the short cut or the steps conveniently provided
there. He might reach the place of his employment in any
manner he liked. Jt was not arising out of his employment
and not in the course of his employment that he met with his
accident. My Lords, I fear to make any general proposition
in these cases when I see the use that is made by ingenious
and able counsel of propositions laid down in this or any other
court. I would venture, however, to say one philosophical
thing, which is that analogies in matters of fact nearly always
fail, and I think it is a dangerous thing in the sphere of law
to conjure out of analogies a principle or proposition arising
upon judicial dicta which are in any respect in conflict, or to
be cited as in conflict, with the clear propositions and text of
a modern statute."
A miner went home to dinner in the middle of the day, by
the accustomed and permitted route, which was on the land
of the employers. Being overtaken by a train of cars con-
veying rubbish to a tip, he attempted to jump on one of the
cars, fell, was run over and killed. In attempting to jump
on the car he was transgressing one of the regulations of the
colliery. It was held by the House of Lords, affirming the
decision of the Court of Appeal, that the accident did not
arise out of the employment, and compensation was denied.
Pope v. Hill's Plymouth Co. (1911), 5 B. W. C. C. 175; aff'g
3 B. W. C. C. 339.
A miner who was making his way home from the pit, in-
stead of going to the recognized exit provided by the mine
owners, for the use of their men, crossed a gangway on to a
dirt bin or waste heap, down which he proceeded by a steep
and rough, and in wet weather, very slippery track, not
formed in any way, but worn down into uneven steps. Near
the foot of the slope and while still on his employers' premi-
INJURIES ARISING OUT OF EMPLOYMENT 435
Injury before work begins or after it ceases
ses, he slipped and fell and was fatally injured. The use of
this route was neither sanctioned nor expressly prohibited
by the owners of the mine, and involved, as the deceased
must have known, considerable danger. On these facts it
was held that there was evidence to support the arbitrators '
ruling that the accident did not arise out of and in the course
of his employment. Hendry v. The United Collieries (1910),
47 Scotch L. R. 635; 3 B. W. C. C. 567.
Where an engine driver arrived on the premises, where he
was to start work, an hour and a quarter before it was
necessary for him to be there, and in crossing some tracks,
in returning from a place where he had gone for his own
purposes, was hit by a train and killed, it was held that the
accident did not arise out of the employment. Benson v.
Lancashire & Yorkshire Ry. Co. (1903), 89 L. T. 715; 6 W.
C. C. 20.
A miner was injured on his way to work. He was on his
employers' land, but had not reached the point at which his
duties commenced, and the accident happened twenty
minutes before the hour at which work started. The arbi-
trator decided that the accident did not arise out of and in
the course of the employment, and it was held by the Court
of Session of Scotland that there was evidence on which the
arbitrator was justified in so deciding. Anderson v. Fife
Coal Co. (1909), 47 Scotch L. R. 5; 3 B. W. C. C.
539.
Decedent was assigned to the nightshift which commenced
work at about 4 p. m. At the time of his death he was not on
duty. He went to the works to talk with another employe1
about going home on the following Sunday. As he was in the
act of leaving the works a box of gravel was raised for the
purpose of being emptied by the man to whom decedent had
been talking. Instead of passing on and allowing the man
on duty to empty the box, claimant took hold of it for that
purpose, and in doing so fell overboard and was drowned.
It was held that the death of the decedent did not occur in
436 bradbuey's workmen's compensation law
Injury before work begins or after it ceases
the course of his employment and compensation was denied
to his dependents. Re H. G. Simpson, Op. Sol. Dep. C. &
L., p. 251. The claim in the above entitled matter was re-
fused by the Attorney General who affirmed the decision
reached by the Solicitor of the Department of Commerce
and Labor. Re H. G. Simpson, Op. Sol. Dep. C. & L.,
p. 253.
A workman was employed to attend to spinning-mules
in a cotton mill. Before commencing work it was necessary
for him, on account of the wet floor, to remove his socks.
In doing so he strained the tendon of his middle finger,
and became incapacitated thereby. It was held that the
accident did not arise out of the employment and compensa-
tion was refused. Peel v. Lawrence & Sons (1912), 5 B. W.
C. C. 274.
A brakeman had a license to go to a caboose in the freight
yards to get his clothes. He boarded a caboose attached to
a moving train to search for his clothing and was injured
while jumping off, by being caught in a defective switch
stand. It was held that he was not acting within the scope
of his employment or his license, and the company was not
liable for his injuries. (E. L.) Olson v. Minneapolis & St. L.
R. Co., 78 N. W. Rep. 975; 76 Minn. 149.
An engineer was killed by an outgoing engine while he
was on his way to take charge of his own engine. He was
neither authorized, directed nor required, in the discharge
of his duties, to walk on the track, as he was doing when in-
jured. It was held that he was at most a mere licensee and
no duty was imposed on the defendant, except the general
duty to do no intentional injury. (E. L.) Buckley v. New
York Central & H. R. Co., 126 Supp. 480.
A club servant left the club for his own purposes, returning
about midnight by climbing through a window, and while
so doing he was injured. It was held that the accident did
not arise out of and in the course of his employment. Wat-
son v. Sherwood (1909), 2 B. W. C. C. 462.
INJURIES ARISING OUT OF EMPLOYMENT 437
Employe1 killed by burning of employer's residence
5. Working after regular hours of employment.
A laborer actually at work for his employer, although
outside of working hours, is still engaged in his employment
so far as the duty of his master is concerned to answer for
injuries suffered by the employe. (E. L.) Broderick v.
Detroit Union R. Sta. & Depot Co., 56 Mich. 261; 22 N. W.
Rep. 802. Where a servant sustained a personal injury by
the giving way of a floor of a building the fact that he was
working after hours was held to be immaterial in determining
the liability for the injury. (E. L.) Gage v. S. Mills Ely Co.,
132 Supp. 953. A servant who worked during the dinner
hour, does not, for that reason alone, become a volunteer so
as to relieve the master of liability for an injury to him re-
sulting from a defect in the premises. (E. L.) Mitchell-
Tranter Co. v. Ehmett, 65 S. W. Rep. 835; 23 Ky. Law Rep.
1788; 55 L. R. A. 710.
An employ^ who was engaged in a carpet mill as scourer,
voluntarily undertook, after hours, to help run a line of hot-
water pipe over a vat of boiling caustic soda. While stand-
ing on a plank placed over the vat, the pipe slipped out of
his hands, and he was knocked into the vat and killed. It
was held that the master was not liable. (E. L.) Durst v.
Bromley Bros. Carpet Co., 57 Atl. Rep. 986; 208 Pa. St. 573.
6. Employe killed by burning of employer's premises.
A servant residing in her mistress's house was suffocated
in her bedroom through a fire which broke out in the house.
She shared the room with a lame cook, and she and the cook
were suffocated. It was held that the accident arose out of
and in the course of the employment. Chitty v. Nelson
(1908), 2 B. W. C. C. 496.
An employ^ who lost his life in a burning factory building
in which he was employed, was held to have been killed in
the course of employment and the dependents entitled to
compensation. Re Harriet H. Horn, Claim No. 1013, Ohio
Indus. Ace. Bd., Dec. 23, 1912.
438 bradbury's workmen's compensation law
Returning to employer's premises to secure pay
7. Entering employer's premises to apply for work.
A laborer passing into a building under construction to
apply for work, in response to information that men were
needed, was held not to be an employe" as effecting liability
of the contractors for his injury. (E. L.) Dickerson v.
Bornstein, 137 S. W. ReP- 773> 144 Kv- 19-
8. Returning to employer's premises to secure pay.
A workman will be held to be acting in the course of his
employment, when, having ceased actual work, he returns
to the premises to obtain his pay. Riley v. W. Holland &
Sons (1911), 1 K. B. 1029; 4 B. W. C. C. 155. Even though
on such ceasing of actual work the relation of master and
servant is terminated. Riley v. W. Holland & Sons (1911),
supra; Molloy v. South Wales Anthracite Colliery Co. (1910),
4 B. W. C. C. 65.
A workman, engaged as a laborer on the public roads, was
required to go for his pay to the tramway depot, situated in a
public road some distance away. The workman was paid
for the time occupied in going to and going from the pay
place. When returning to his work, after receiving his wages,
he mounted a tram car, but finding that it did not travel to
the place where his work was situated, he got off and was
struck by a passing cart and injured. It was held by the
Court of Appeal in England that the injury was one arising
out of and in the course of the man's employment. Nelson
v. Belfast Corporation (1908), 42 Irish L. T. 223; 1 B. W.
C. C. 158.
A mill-hand, whose employment had ended, attended at
the employer's mill to receive her wages a few days later,
in accordance with the usage of the trade. She met with an
accident while leaving. It was held that the accident arose
out of and in the course of the employment. Riley v. W.
Holland & Sons (1911), 104 L. T. 371; 4 B. W. C. C. 155.
An employe" after completing his day's work and while
still on his employer's premises was injured while going from
INJURIES ARISING OUT OF EMPLOYMENT 439
Returning to employer's premises to secure pay
the locality where he was doing his work to the office of the
paymaster to obtain his pay, the traversing of that portion of
the premises on which the injury occurred not being for-
bidden by the rules or directions of the employer, and the
injury not being purposely self-inflicted, it was held that the
injury was sustained in the course of the employment and
the injured employe1 was entitled to compensation. Re R. B.
Phillips, Claim No. 3514, Ohio Indus. Ace. Bd., May 5, 1913.
A miner who left off work at 5 a. m. on Saturday morning,
but would have resumed work on the Sunday night following,
went to the works at 12:30 mid-day on Saturday, to receive
his wages, and while proceeding on his employers' premises
with this purpose he was injured by a railway engine, which
ran through the employers' premises. It was held that the
accident arose out of and in the course of his employment.
Lowry v. Sheffield Coal Co. (1907), 24 T. L. R. 142; 1 B. W.
C. C. 1.
A collier received his pay-note on Saturday. Being dis-
satisfied with the amount, he spoke to the manager, who
referred him to the under-manager. The latter could not be
seen until Monday. The collier came on Monday at mid-
day, not intending to resume work unless the dispute was
settled in his favor, and saw the under-manager, who did not
give in. The collier then proceeded to leave, but was knocked
down by a coal wagon and killed. It was held that the acci-
dent did not arise out of, nor in the course of the employment.
Phillips v. Williams (1911), 4 B. W. C. C. 143.
A farm laborer had at the end of his day's work to go
about two miles to his employer's farm to receive his pay
and instructions for the next day's work. A fellow-workman
happened to be going the same way with a cart, and invited
him to ride therein. The workman did so, and was thrown .
out and injured by the horse suddenly starting. It was held
that the accident did not arise out of the employment and
compensation was refused. Parker v. Pont (1911), 5 B. W.
C. C. 45.
440 bkadbury's workmen's compensation law
Unnecessarily going to a place of danger
9. Returning to employer's premises to secure tools.
The plaintiff had been employed by the defendant as a
laborer. He had gone home several days before the date of
the accident on account of illness. When he returned he saw
the foreman of the defendant. According to the foreman's
testimony he told, the plaintiff that there was no work for
him. The plaintiff declared that the foreman told him he
would find something for him to do assisting the electrician.
The plaintiff then asked for a shovel belonging to himself
which had been left on the work when he had gone home ill
a few days before. Someone started to the basement to
look for it and the plaintiff himself started also to hunt for
the shovel. While doing this the plaintiff fell in an unpro-
tected hole in the floor and was seriously injured. The
plaintiff recovered a verdict which was affirmed by the New
York Court of Appeals. (E. L.) Lynch v. Pierce, 1 Brad-
bury's PI. & Pr. Rep., 594.
A workman a few days after leaving his work obtained
leave to go down into the mine to bring up his tools, and
while there for that purpose met with an accident. The
County Court judge found that the accident arose out of and
in the course of the man's employment with the colliery
owners, and awarded him compensation. The Court of
Appeal affirmed the judgment, on the ground that the appel-
late court had no jurisdiction to interfere with the findings
of fact of the County Court. Molloy v. South Wales Anthra-
cite Colliery Co. (1910), 4 B. W. C. C. 65.
A coal mining company was held liable for injuries to an
employe, received while going to a place other than that in
which he was at work to get tools at the direction of a vice
principal. (E. L.) Broadway Coal Mining Co. v. Robinson,
150 S. W. Rep. 1000; 150 Ky. 707.
10. Unnecessarily going to a place of danger.1
Where an employ^ voluntarily puts himself in a place of
1 See paragraph 16, post, 475.
INJURIES ARISING OUT OF EMPLOYMENT 441
Unnecessarily going to a place of danger
danger where he is not required to go, the employer is in no
way responsible for the resulting injury. (E. L.) George
Fowler, Sons & Co. v. Brooks, 70 Pac. Rep. 600; 65 Kans. 861.
The duty of a master to furnish his employe" a safe place to
work has no reference to places at or about which the em-
ploye" has no business to be. (E. L.) Montgomery Cotton Mills
v. Bowdoin, 58 S. Rep. 732; 000 Ala. App. 000. The mere fact
that an employe1 engaged to do safe work at a safe place is in-
jured while attempting to do a dangerous act not connected
with his usual employment, does not, in the absence of evi-
dence that he was directed to do it by someone in authority
raise any question of liability on the part of the employer.
(E. L.) Pfeffer v. Stein, 26 App. Div. 535; 50 Supp.
516.
An employe left a moving train, entered a liquor store,
secured several bottles of beer and then attempted to get
on the train. He was injured while so doing, and it was held
that the injury did not occur in the course of the employ-
ment. Ruling of Washington Industrial Commission.
A railroad employe" was killed at a switch, by the de-
railment of an engine, on which he was riding, without the
knowledge of the conductor. The caboose was the proper
place for him to ride, and people riding therein escaped in-
jury. It was difficult to get into the caboose at the point
where he boarded the engine, and he had ridden on the en-
gine habitually. The engine, on this occasion, was running
at a dangerous speed toward the switch, and it appeared
that the bolt and pin which held the switch had been felon-
iously removed, causing the engine to jump the track. It
was held that such employe" was a trespasser on the engine
and could not recover. (E. L.) Martin v. Kansas City, M.
& B. R. Co., 27 So. Rep. 646; 77 Miss. 720.
Where in an action for the death of a servant by the caving
in of a railroad gravel pit, there was no proof that it was
necessary or proper, in the performance of the duties of the
deceased, to have placed himself between the steam shovel
442 bradbuey's workmen's compensation law
Unnecessarily going to a place of danger
and the wall of the pit where he was killed, it was held that
the defendant was not liable therefor. (E. L.) Baker's Adm 'r
v. Lexington & E. By. Co. 89 S. W. Rep. 149; 28 Ky. Law
Rep. 140.
Water had accumulated at the pit bottom of a mine to
the depth of about eighteen inches at the cage, gradually
shallowing back fbr about thirty feet. Only one cage was
available for carrying eight men to the surface and there
were about 200 men to be raised. Each was eager to as-
cend and all of them waded in the water and stood in it for
from thirty to forty-five minutes. The traffic near the pit
bottom had ceased and the men could, with safety, have
waited on the dry ground, until their turn came to ascend.
One workman suffered deafness caused by a chill arising from
the exposure of standing in the water, and applied for com-
pensation. The court held that the workman had failed to
prove that his incapacity was due to accident, or that it
arose out of his employment, and compensation was refused.
Alexander M'Luckie, v. John Watson (Edinburgh Court of
Sessions, First Division, June 12, 1913.) See "Market
World and Chronicle," July 12, 1913, p. 56.
An employe of a contractor to electrify the lines of a rail-
road company was not required to perform work on tracks
enclosed by fences used by express trains, but only alongside
such tracks. There were several crossings within a short
distance from where he worked. It was held that the con-
tractor was not liable for injuries sustained by the employe
in consequence of his entering on the tracks and being struck
by the train. As to the railroad company it was held, he was
a trespasser. (E. L.) Shea v. Westinghouse Electric & Mfg.
Co., 147 App. Div. 660.; 132 Supp. 612.
A servant knowing of the defective condition of an ele-
vator voluntarily took passage thereon for his own purpose
and not in obedience to any direction from any superior.
He was injured through a fall of the elevator in consequence
of its defective condition. It was held that the master was
INJURIES ARISING OUT OF EMPLOYMENT 443
Unnecessarily going to a place of danger
not liable. (E. L.) Lax-Fos Co. v. BowUtt, 139 S. W. Rep.
836; 144 Ky. 690.
Where an employ^, at the time of an injury, was not en-
gaged in the discharge of his duty, but he had placed him-
self in a known situation of danger, and but for so doing, he
would not have been injured, it was held that he could not
recover. (E. L.) Therriault v. England, 116 Pac. R. 581;
43 Mont. 376.
' An employe" left his place of work when the machinery
stopped and went to a place known to him to be dangerous
and to which he was not called by his work. While there he
was injured by the machinery being started and it was held
he could not recover. (E. L.) Schmnoske v. Asphalt Ready
Roofing Co., 129 App. Div. 500; 114 Supp. 87.
A miner fell while crossing a chute in the mine. A few
minutes later he was demonstrating to a fellow workman how
he fell and while so demonstrating he fell again. It was con-
tended that the second fall caused the injury and that there-
fore it was not received in the course of the employment.
There was some dispute as to the conversation which the
workman had after his fall, as it was held in the workman's
native language. Compensation was awarded. Mileta v.
Newport Mining Co., Mich. Indus. Ace. Bd., July, 1913.
A section hand was injured by being struck by an engine
while crossing the tracks in the yards. It was held that if
it was reasonably necessary for him to cross the tracks at a
time and place where his presence could have been reasonably
anticipated, the master owed him the duty of looking out
for him and giving timely signals by whistle or bell, and his
right to recover would not depend upon whether or not the
tracks at the point where crossed were used by the public.
(E. L.) Cincinnati N. 0. & T. P. Ry. Co. v. Troxell, 137
S. W. Rep. 543; 143 Ky. 765.
In an action by a servant for personal injuries from being
squeezed between a door and the frame of an elevator while
crossing an elevator shaft covered by trapdoors, where it
444 bradbury's workmen's compensation law
Injuries at mealtime
was so generally used by the employes as a passageway as to
become known to the officers and superintendent of defend-
ant, though an adequate passage had been provided else-
where, it was held that the defendant was chargeable with
negligence, having acquiesced in the general use of the trap
door by its employes. (E. L.) Reynolds v. Seneca Falls Mfg.
Co., 137 App. DivM46; 122 Supp. 797.
11. Injuries at mealtime.
Where an employer provides a place for his employees to
eat, or directs or permits them to go to a place for that pur-
pose, he owes to them the same duty of protection from
danger there that he does at the place where such employes
work. (E. L.) Heldmaier v. Cobbs, 96 111. App. 315; aff'd 62
N. E. Rep. 853; 195 111. 172. A corporation permitting its
servants to use a building on the premises, as a place in which
to eat their dinner, owes to them the duty not to injure them
by its negligence while they are using the building in the
usual manner, and it is liable for such injuries although the
building is used for other purposes and the servant would
not have been injured had he remained at his usual place of
work. (E. L.) Carnegie Steel Co. v. Rowan, 39 Ohio Cir. Ct.
202. The relation of master and servant, in so far as it in-
volves the obligation of master to protect the servant is not
suspended during the noon hour, where the master expressly,
or by fair implication, invites his servants to remain on the
premises in the immediate vicinity of the work. (E. L.)
Thomas v. Wisconsin Central Ry. Co., 122 N. W. Rep. 456;
108 Minn. 485. Where, in a manufacturing establishment,
it was impracticable for the employes to leave the building
for their noonday meal, and the master allowed only thirty
minutes for their luncheon, and it was contemplated that
they should remain in the building where they worked to
eat it, it was held that the relation of master and servant
continued during the thirty minutes allowed for luncheon.
(E. L.) Riley v. Cudahy Packing Co., 117 N. W. Rep. 765;
INJURIES ARISING OUT OF EMPLOYMENT 445
Injuries at mealtime
82 Neb. 319. Where a servant, who was paid by the hour,
was injured through the negligence of the master while eat-
ing his lunch at the noon hour, a contention that he was not
at the time of the injury engaged in the work or business of
the master was held to be without merit. (E. L.) Heldmaier
v. Cobbs, 96 111. App. 315; aff'd 62 N. E. Rep. 853; 195 111. 172.
In the last mentioned case the servant while employed on
excavating work, was told to leave his dinner pail in a boiler
house maintained by the master, and while there eating
his luncheon, he was injured by an explosion of dynamite
caps negligently left in the boiler house by the master.
In an action against a railway company for injuries received
by one employe on a construction train, a demurrer to a para-
graph setting up that the injury was done during the noon
hour, was held to be properly overruled, for the plaintiff was
not out of the line of his duty simply because he remained on
the car during the noon hour, which may have been necessary
in order that he might be ready for duty when the hour ex-
pired. (E. L.) Evansville R. R. Co. v. Maddux, 134 Ind. 571; 33
N. E. Rep. 345. A brakeman on a switch engine was sitting
on the footboard at noon, eating his luncheon. Another
engine backed up on the track and hit the engine on which the
brakeman was sitting, causing him to fall to the track where
he was killed. It was held that the relation of master and
servant still continued, and that the defendant was liable.
(E. L.) Adams v. Southern Ry. Co., 51 So. Rep. 987; 000 Ala.
000.
A workman who was killed while descending from the
top of a building on which he was working, in a material
hoist, after the noon hour had come, to eat his dinner, was
held to be in the employ of the contractor when the accident
happened. (E. L.) Boyh v. Columbian Fire Proofing Co.,
182 Mass. 93; 64 N. E. Rep. 726; (E. L.) Murphy v. Colum-
bian Fire Proofing Co., Id.; (E. L.) Duncan v. Columbian Fire
Proofing Co., Id.
A day laborer who is permitted to carry his dinner to his
446 bbadbury's workmen's compensation law
Injuries at mealtime
work, and to eat it on his employer's premises during the
noon hour, and to leave his pail on the premises until the day's
work is done, still occupies the relation of employe* on going
to get his pail at the close of the day, although his day's
work is then done and he has received his day's pay. (E. L.)
Taylor v. George W- Bush & Sons Co. 5 Pennywill, 378;
61 Atl. Rep. 236*
The claimant; an employe* of the Government, was in the
flag loft of the Mare Island Navy Yard during the noon
hour. She was looking out of the window and then walked
backward from the window and tripped over an electric wire
attached to a sewing machine and fell to the floor. It
was held that the injury was received in the course of the
employment and that she was entitled to compensation;
In re Mrs. R. Hawes, Op. Sol. Dep. C. & L., page 220.
The claimant was walking hurriedly down a railroad
track to dinner when he stumbled and fell on a cross tie.
The accident occurred on the premises under the control
of the Isthmian Canal Commission, and under the peculiar
circumstances of the case and under the rule established in
the case of Joseph Chambers, it was held that compensation
should be awarded. Re John Joseph, Op. Sol. Dep. C. & L.,
page 229.
An employe* had just finished his lunch on his employer's
premises, where he was permitted to remain while eating
luncheon, and was in the act of stepping down from the stool
upon which he was sitting when he fell. It was held that he
was entitled to compensation. Crouch v. Massachusetts
Employes Insurance Association, Mass. Indus. Ace. Bd.
An employer sent two horses and carts with, one driver
to work for the City of Springfield, in cleaning sweepings
from the street. The plaintiff's intestate was also sent as a
driver. His duties were to drive one of the horses and a cart
to a dump while the other cart was being loaded, so that he
was driving one or the other all of the time. The general
instructions as to the place and the kind of work to be done
INJURIES ARISING OUT OF EMPLOYMENT 447
Injuries at mealtime
were given by the superintendent of the City. But it was
the duty of the employe" to water the horses when he had a
chance and to care for the horses from the time he took them
from the barn until he brought them back again at night.
Just before twelve o'clock on the day of the injury the de-
ceased told the man in charge of the street sweepers that he
would take one horse and cart and go to dinner and on the
way to dinner he would water the horses. The decedent's
home was in the direction of the nearest watering trough,
but a considerable distance beyond it. Before reaching the
watering trough the decedent was fatally injured by the min-
ing away of the horse. It was contended that the deceased
had no reason to go to his dinner as he carried grain for the
horses and it was his duty to feed them during the noon hour.
It was held that the retention of control included the care of
the horses at least to the extent of seeing that they were
given water and that during this .time the deceased was in
the employ of the owner of the horses, and his dependents
were therefore entitled to compensation from such owners.
It was also held that the accident arose out of and in the
course of the employment, as the deceased was on his way to
perform his duty in watering the horses at the time of the in-
jury, although he may have had, at the time of the injury, the
purpose of doing something else not within the scope of his
employment after watering the horses. Pigeon v. Employers '
Liability Assurance Corporation, 215 Mass. 000; 102 N. E.
Rep. 932.
A workman when employed during the night shift took his
supper, for the sake of warmth, seated on a tank in the
pump room. His employers provided a dining room for
their workmen, but they were not bound to take their meals
there. In getting off the tank the workman fell through a
hole in the tank, was scalded and received injuries from which
he died. The workman was not expressly prohibited from
going on to the tank, but the evidence was that he had no
right to be there, and if found there he would have been
448 bradbury's workmen's compensation law
Injuries at mealtime
dismissed. It was held that the accident did not arise out
of the employment. Brice v. Edward Lloyd (1909), 2 K. B.
804; 2 B. W. C. C. 26. The court distinguished the case of
Blovelt v. Sawyer (1904), 1 K. B. 271; 6 W. C, C. 16. In the
last mentioned case the accident happened to a bricklayer
during the dinner hour. It appeared that there was no
absolute rule as |o the workmen going, or staying in the
building, during the dinner hour, so that they were at liberty
to stay there and eat their dinner if they so desired. At the
dinner hour the workman employed on the building under
course of erection, remained in the building and sat down
under a wall to eat his dinner. The wall fell on him while he
was sitting there and caused the injury for which he claimed
compensation. It was held that he was entitled to compen-
sation, as the accident arose out of and in the course of the
man's employment.
Where, by an arrangement between a railway company
and certain employes, they were allowed to go to a cabin
on the railway company's premises for certain meals, and one
of such employes was returning from the cabin after haying a
meal there, and was knocked down by a car which was being
shunted on one of the company's tracks, it was held that the
injury arose out of and in the course of the employment.
Earnshaw v. Lancashire & Yorkshire Ry. Co. (1903), 5 W. C.
C. 28.
A night watchman who left his box and went into a shanty
where tools were kept to cook and eat his food and was in-
jured by the falling of the shanty was held to have been in-
jured by accident arising out of and in the course of his em-
ployment. Morris v. Lambeth Borough Council (1905),
8 W. C. C. 1.
Where employes had twenty-five minutes from twelve
o'clock noon for eating lunch, and five minutes after the
whistle blew, at 12.25, within which to go to their place of
work and begin work at 12.30, it was held that the relation
of master and servant existed when an employe" was injured
INJURIES ARISING OUT OF EMPLOYMENT 449
Injuries at mealtime
at 12.27 while going to his place of work. (E. L.) A. Bentley
& Sons Co., v. Bryant, 147 S. W. Rep. 402; 148 Ky. 634.
A law writer was injured in the street during the lun-
cheon hour. It was held that the luncheon hour was not
part of the period of his employment and compensation was
refused. McKrill v. Howard & Jones (1909), 2 B. W. C. C.
460.
Where an employe was eating his dinner during the noon
hour at a place of his own selection off the employer's pre-
mises, and was injured by a stone thrown from a blast, it
was held that the relationship of master and servant did not
exist at the time of the injury. (E. L.) Moronen v. McDon-
nell, 000 Mich. 000; 143 N. W. Rep. 8.
Where an employe at a roundhouse left his work for a res-
taurant outside of the railroad yard, but on the railroad prop-
erty, and was injured while crossing the tracks in the yard, by
stepping in hot water collected in a pool, by reason of a leak-
age in a pipe used to carry steam from the engine room to
passenger cars in the yard, it was held that the railroad
company was not, at the time of the accident, under any duty
to guard the employe1 against any dangers he might encounter
and the employe1 must suffer the consequences of the acci-
dent. (E. L.) Wilson v. Chesapeake & Ohio Ry..Co., 113
S. W. Rep. 101; 130 Ky. 182.
The plaintiff, a planerman in the defendant's mill, work-
ing at night, was about to eat his luncheon, while the mill
was shut down for that purpose, when the watchman told
him there was a much more comfortable place to eat his
luncheon in the dry kiln, and offered to take him to it. This
he did, and on returning alone, the plaintiff, while walking
along certain platforms, failed to note the exact dimensions
of the connecting walk, or missed the walk entirely, and fell
to the ground and was injured. It was held that since the
watchman had no power or authority to direct the plaintiff's
movements, the invitation to the plaintiff to eat his luncheon
in another place was not a command of the master, and the
29
450 bbadbtjry's workmen's compensation law
Getting drink of water
defendant was therefore not liable. (E. L.) Allen v. Chehalis
Lumber Co. 112 Pac. R. 338; 000 Wash. 000.
A telephone lineman while going to luncheon slipped on
wet steps and was injured. It was held that the injury did
not occur in the course of the employment. Ruling of Wash-
ington Industrial^Jommissian.
An employer (who is allowed to come under the Washing-
ton Act) was injured while going to supper down a log chute
and it was held that this was not in the course of employ-
ment. Ruling of Washington Industrial Commission.
12. Getting drink of water.
A servant employed on a railroad in repairing the track,
does not cease to be a servant, nor is he out of the line of his
duty, when, for a few minutes, he actually quits work in
order to obtain a drink of water. (E. L.) Jarvis v. Hitch,
000 Ind. App. 000; 65 N. E. Rep. 608. An employe" has a
right to pass over the ways provided for his master, in going
to and from a place where he can obtain water to quench his
thirst, and has a right to the same protection he is entitled
to without actually working, whether the water is provided
by the employer or the servant. (E. L.) Birmingham Roll-
ing Mill Co. v. Rockhold, 42 So. Rep. 96; 143 Ala. 115.
While the mere act of getting water is not a part of the
duties of the employe, yet it is a physical necessity which
must be attended to while the employe1 is engaged in his
duties, and he is entitled to the same protection in the
interval when he leaves his work to get water as. when
he is actually at work, and whether the water is provided
by the employer or by himself the employe1 has a right to
pass over the ways provided by the employer, in going to
and from the place where his thirst is slaked. (E. L.) Re
Birmingham Rolling Mill Co. v. Rockhold, 143 Ala. 115; 42
So. Rep. 96.
Where a brakeman on a freight train went into the cab
of a locomotive of another train to secure a drink of water,
INJURIES ARISING OUT OF EMPLOYMENT 451
Attending to call of nature
and while there for that purpose the two trains collided, and
he was killed, it was held that there could be no recovery,
although the collision was due to the negligence of the rail-
road company's servants, as the deceased was not in the
discharge of any duty to the master. (E. L.) Shadoan's
Adm'r v. Cincinnati N. 0. & T. P. R. Co., 82 S. W. Rep. 567;
26 Ky. Law Rep. 828.
13. Attending to call of nature.
Where toilet conveniences for employes were provided by
the master in the boiler room, it was held that an employe"
going there to use them, was still in the employ of the master.
(E. L.) Neice v. Farmers' Co-operative Creamery & Supply
Co., 133 N. W. Rep. 878; 000 Nebr. 000. When a railroad
company had not provided any convenient closet for the use
of its employes, it was held that a section foreman was not a
trespasser in passing over a side track, on which he was
struck and injured, on returning from answering a call of
nature. (E. L.) Houston & T. C. R. Co. v. Turner, 91 S. W.
Rep. 562; 99 Tex. 547. During the dinner hour a man met
with an accident when returning from a place where he had
gone to relieve nature and it was held that the accident
arose out of and in the course of the employment. Elliott
v. Rex (1904), 6 W. C. C. 27. In the last-mentioned case the
court refused to follow the decision in the case of Pearce v.
London & South Western Ry. Co. (1899), 2 W. C. C. 152,
where it was held that when a man was injured when going to
relieve nature during the breakfast hour that the accident
did not arise out of the employment.
A workman instead of going to the proper place for a neces-
sary purpose went into a confined space underneath a table
engine and stepped into boiling water, in a cistern which
was sunk into the ground to receive the escaping hot water
from the engine. It was held that the accident did not arise
out of and in the course of employment. Thomson v. Flem-
ington Coal Co. (1911), 48 Scotch L. R. 740; 4 B. W. C. C. 406.
452 BRADBURY'S WORKMEN'S COMPENSATION LAW
Workmen whose duties take them away from the employer's premises
Where a train dispatcher, although having the right to
cross the tracks of a railway company by which he was em-
ployed, to reach a closet provided by the company for its
employes, went between the cars at another place, for his
own convenience, and not in the discharge of any duty, it
was held that the company did not owe him any duty except
to avoid injuring*him after discovering his peril. (E. L.)
Louisville & N. R. Co. v. Hocker, 64 S. W. Rep. 638; 111 Ky.
707; same case, 65 S. W. Rep. 119; 111 Ky. 707.
14. Workmen whose duties take them away from the em-
ployer's premises.
An agent who is making a house-to-house collection of
premiums and meets with accidental injury is entitled to
compensation. Refuge Assurance Co. v. Millar, 49 Scotch
L. R. 67. An injury occurring to a salesman while he was
on his way to the home of a prospective customer, was held
to arise out of and in the course of his employment. Gaffney
v. Travelers Insurance Co., Mass. Indus. Ace. Bd. As a
rule, commercial travelers may be regarded as acting in the -
course of their employment so long as they are traveling
on their employer's business, including the whole period
of time between their starting from and returning to their
place of business or home. Dickinson v. Barmak (1908),
124 L. T. Newspaper, 403.
An employe's duty was to drive a light delivery wagon
drawn by a horse which was used in making deliveries,
obtaining supplies, etc., and when not so employed to work
in the shop of his employer. It was also a part of his duty
to take care of the horse, which he drove, and in so doing to
take the horse and wagon to his home in the suburbs, on
Saturday afternoons, in order to give the horse Sunday pas-
ture, and to drive it back to the city on Monday mornings.
He was injured on a Monday morning while caring for the
horse preparatory to driving to the city. It was held that
the injury was received in the course of the employment.
INJURIES ARISING OUT OF EMPLOYMENT 453
Workmen whose duties take them away from the employer's premises '
Re James L. Chase, Jr., Claim No. 3493, Ohio Indus. Ace.
Bd., May 19, 1913.
A chief engineer having supervision of several plants where
his duties consisted in overseeing the installation, was en-
gaged much of his time in traveling from one plant to another.
On the day he received the injury, which resulted in his
death, he slipped and fell in attempting to board a street car
and sustained a fracture of the skull. The following day he
spent the greater part of his time at the office of the company,
but complained of a severe headache. Symptoms of brain
pressure became evident and he subsequently died. It was
held that the accident arose out of and in the course of the
employment of the deceased. Hopkins v. Michigan Sugar
Co., Mich. Indus. Ace. Bd., June, 1913.
A canvasser and collector, employed to go round calling
on customers, usually went on his bicycle. This was not
necessary, but his employers who knew of the practice,
neither ordered him to do so, nor forbade him to do it.
While traveling on a bicycle he collided with a tramcar and
was killed. It was held that the accident arose out of the
employment. Pierce v. The Provident Clothing and Supply
Co. (1911), 104 L. T. 473; 4 B. W. C. C. 242.
A salesman and collector while riding in a street upon a
bicycle, in the course of his employment, was kicked on the
knee by a passing horse and injured. It was held that the
accident arose out of the employment. M ' Neice v. Singer
Sewing Machine Company (1911), 48 Scotch L. R. 15; 4 B.
W. C. C. 351.
A railway policeman, apart of whose duties it was to take
cash boxes and deposit the contents in a bank in the town,
was returning from such a trip when he was crossing a rail-
way track over a way which was sometimes used by the em-
ploye's. An engine being shunted down these tracks hit and
killed the policeman. It was held that the accident arose out
of and in the course of the employment and that his depend-
ents were entitled to compensation. Grant v. Glasgow and
454 bradbury's workmen's compensation law
Workmen whose duties take them away from the employer's premises
South Western Railway Co. (1907), 45 Scotch L. R. 128; 1 B.
W. C. C. 17.
A workman in an iron works went from his furnace to the
blacksmith's shop, the route running along a canal bank.
Not returning, he was sought for and some hours later he
was found drowned in the canal. The County Court judge,
in the absence of Hirect evidence as to how the man came to
be in the canal, inferred that the accident arose out of the
employment and awarded compensation. This award was
affirmed on appeal. One of the justices stated that suicide
being a crime, could not be inferred. Furnivall v. Johnson's
Iron and Steel Co. (1911), 5 B. W. C. C. 43.
A servant for whom his master was obliged to provide
lodging, was directed by the master to go to a town, on a
dark night, and to go through a field, out of which there was
no road. The servant took direct route to the town and was
injured by falling into a hole dug by the master, and it was
held that the injury was received in the course of the employ-
ment. (E. L.) Indiana Pipe-Line & Refining Co. v. Neus-
baum, 52 N. E. Rep. 471; 21 Ind. App. 361.
Claimant was on his way from the cut, where he was at
work to the field office, for the purpose of securing a commis-
sary book. His route lay parallel between two railroad
tracks. Just before reaching a point where the two tracks
were joined by a switch, it became necessary for him to cross
one of the tracks, which lay between him and the field office.
While doing this cinders were blown into his eyes from a
train which was on the other track, momentarily blinding
him. At this moment a train, going in the opposite direction,
at about ten miles an hour, came along. The engineer blew
the whistle, which was heard by the claimant, but before he
could recover his composure and get out of the way he was
struck by the engine, resulting in the loss of his right foot.
It was held that the injury occurred in the course of the em-
ployment and that the claimant was entitled to compensa-
tion. Re Popanx Papius, Op. Sol. Dep. C. & L., p. 249.
INJURIES ARISING OUT OF EMPLOYMENT 455
Workmen whose duties take them away from the employer's premises
A surveyor, employed by the United States, was in a sur-
veying party using the United States steamer "Mars," the
quarterboat "Illinois," and a fuel barge, which party was en-
gaged in work along the Mississippi River. In the perform-
ance of this work it was necessary for the entire party to
occupy the boats furnished by the United States Govern-
ment for living quarters, taking their meals and sleeping
thereon. After supper, on November 9, 1909, while the fleet
was moored in the river, the decedent left the boat and pro-
ceeded to a nearby town, for the purpose of getting his pay
check cashed and making some purchases. Upon return-
ing to the boat he was met at the gangplank by the watch-
man with a lantern. He passed across the bow of the fuel
barge, and in attempting to pass around a person who had
stopped on the gangplank, he lost his balance, fell overboard
and was drowned. It was held that the accident arose in
the course of the employment, and that the mother of the
decedent who was dependent upon him for support, should
be allowed compensation. Re C. E. Hott, Op. Sol. Dep. C.
& L., p. 237.
Applicant claimed that he was injured while riding on the
footboard of- an automobile owned by the defendant and in
the course of his employment. Defendant protested the
claim on the ground that the accident happened outside of
his employment. Held that compensation was payable
applicant, because the evidence showed that he and others
were accustomed to leaving the warehouse owned by de-
fendant and proceeding in an automobile to the office some
distance away in order to ascertain whether overtime work
would be required, and that on the night of the accident,
applicant and others, including the foreman, left the ware-
house several minutes before quitting time. Compensation
was awarded to the amount of $88 for disability indemnity
and for medical and surgical treatment. Seywald v. The
Ford Motor Co., Cal. Indus. Ace. Bd., June 26, 1913.
A workman, sometimes employed as a messenger, was
456 bradbury's workmen's compensation law
Volunteers; acting without scope of authority
sent to a branch station to get a postal order. He failed to
get it there, so went to the General Post Office half a mile
further on. Here he slipped on a banana skin and injured
himself. The County Court judge held that as the man had
exceeded his duty the accident did not arise out of and in the
course of his employment and compensation was refused.
Smith v. Morrison #911), 5 B, W. C. C. 161. The foregoing
appears to be a hard case and is scarcely in consonance with
most of the decisions in which somewhat similar circum-
stances were present.
A school janitor was sent on a message on a very hot day.
He fainted in the street from the heat, and fell backwards,
striking his head on the pavement, subsequently dying from
the effects of the injury. It was held that the accident did
not arise out of the employment. Rodger v. Paisley School
Board (1912), 49 Sc. L. R. 413; 5 B. W. C. C. 547.
The services of an employe regularly employed by a cor-
poration were loaned to one of the officers and directqrs
thereof to perform temporary services in the private business
of such director and officer. While performing such services
he was away from his employer's premises and on the prem-
ises of such director and officer, and the work was done under
his direction and supervision. While performing such serv-
ices the employe1 was injured.- It was held that the injury
was not received in the course of the employment within the
meaning of § 1465-59 of the Ohio statute. Re William A.
Jones, Claim No. 4173, Ohio Indus. Ace. Bd., June 4, 1913.
15. Volunteers; acting without scope of authority.
Page
(a) Cases in which damages or compensation refused 456
(b) Cases in which damages or compensation awarded 466
(a) Cases in which damages or compensation refused.
A volunteer is one who introduces himself into matters
which do not concern him, and does, or undertakes to do,
something which he is not bound to do, or which is not in
INJURIES ARISING OUT OF EMPLOYMENT 457
Volunteers; acting without scope of authority
pursuance or protection of any interest of the master, and
which is undertaken in the absence of any peril requiring
him to act as on an emergency. (E. L.) Kelly v. Tyra, 115
N. W. Rep. 636; 000 Minn. 000; aff'g 114 N. W. Rep. 750;
103 Minn. 176.
A master is not liable for injuries to nis servant unless the
master was, at the time, in the performance of some duty for
which he was employed. (E. L.) Stagg v. Edward Westen Tea
& Spice. Co., 69 S. W. Rep. 391 ; 169 Mo. 489; (E. L.) Chamlee
v. Planters Hotel Co., 134 S. W. Rep. 123; 000 Mo. App. 000.
If a servant undertakes work of his own motion outside the
scope of his employment, without the authority of the mas-
ter, or his superintendent, he acts as a mere volunteer and
cannot recover for an injury resulting therefrom. (E. L.)
Lewis v. Coupe, 85 N. E. Rep. 1053; 200 Mass. 182. (E. L.)
Punkosski v. New Castle Leather Co., 57 Atl. Rep. 559; 4
Pennewill (Del. Super.) 544; (E. L.) Seiniski v. Wilming-
ton Leather Co., 83 Atl. R. 20; 0000 Del. Supr. 000; (E. L.)
Whiteley Malleable Castings Co. v. Wishon, 85 N. E. Rep.
832; 000 Ind. App. 000; (E. L.) Columbia Creosoting Co. v.
Beard, 99 N. E. Rep. 823 ; 000 Ind. 000. Unless he is an emer-
gency employe. (E. L.) Central Kentucky Traction Co. v.
Miller, 143 S. W. R. 750; 147 Ky. 110. And the master is
not chargeable with negligence for failing to warn him of
his danger. (E. L.) Marshall v. Burt & Mitchell Co., 69 Atl.
Rep. 183; 000 N. J. L. 000.
One who volunteers to assist the servant of another in the
performance of his duties can only recover for an injury
suffered by showing a wilful or wanton injury, and this
notwithstanding such volunteer was a minor of the age of
about twelve years. (E. L.) Belt By. Co. of Chicago v.
Charters, 123 111. App. 322. Where a stranger, at the request
of a servant, without authority to employ other servants,
voluntarily undertakes to perform services for the master, he
is a mere volunteer and the master owes him no duty, except
the duty he would owe to a trespasser, not to injure him
458 bradbury's workmen's compensation law
Volunteers; acting without scope of authority
wilfully or wantonly after his peril is discovered. (E. L.)
Central of Georgia By. Co. v. Mullins, 66 S. E. Rep. 1028;
7 Ga. App. 381.
Applicant had his left thumb very severely lacerated,
amounting almost to amputation and resulting in a stiffen-
ing of the first or distal joint for life. He was a youth whose
work did not require him to use a saw, but he had received
some instruction in sawing incense cedar block slats as raw
material for making lead pencils. It was stated that his
work was not satisfactory and he was assigned other duties.
Taking advantage of the absence of the experienced sawyer,
unfortunately he attempted to experiment and met with a
serious injury. Held that at the time of the accident the
employe1 was not acting within the line of his duty and con-
sequently compensation was denied. At the same time the
defendant was criticised for not maintaining a higher meas-
ure of precaution and discipline in the operation of its plant,
especially where immature lads were employed. Mederos
v. Essex Lumber Co., Cal. Indus. Ace. Bd., May 13, 1913.
Where decedent, having often been directed not to ride on
a freight train, and knowing that the rules forbade it, volun-
tarily undertook to operate a brake, when he was injured
while riding on the train, with the knowledge of the other
employes, it was held that he was not an employe^ but a mere
volunteer, even if the engineer had requested him to operate
the brake. (E. L.) Derrickson's Adm 'r v. Swann-Day Lumber
Co., 115 S. W. Rep. 191; 000 Ky. 000. Where the plaintiff
was injured while he was assisting the conductor to repair
a car-brake, and the conductor had no express authority to
employ plaintiff, and there was no sudden emergency ne-
cessitating the plaintiff's employment, it was held that the
plaintiff could not recover on the theory that he was acting
as defendant's servant. (E. L.) Hendrickson v. Wisconsin
Cent. Ry. Co., 122 N. W. Rep. 758; 000 Wis. 000.
Where a servant voluntarily and without direction from
the master, and without his acquiescence, goes into hazard-
INJXJKIES AEISING OUT OF EMPLOYMENT 459
Volunteers; acting without scope of authority
ous work outside of his contract of hiring, he puts himself
beyond the protection of his master's implied undertaking,
and if he is injured he must suffer the consequences. (E. L.)
Pittsburg C. & St. L. R. Co. v. Adams, 105 Ind. 151; 5 N. E.
Rep. 187. (E. L.) Chielinsky v. Hoopes & Townsend Co.,
40 Atl. Rep. 1127; 1 Marv. (Del. Super.) 273. Where a
servant is employed to do certain service and is injured in
the performance of a different service voluntarily undertaken,
the master is not liable. (E. L.) Shss-Sheffield Steel & Iron
Co. v. Moore, 59 So. 311; 000 Ala.App. 000. Where one
works as a volunteer and not under an authorized contract
of employment the master owes him no duty save the nega-
tive one of not injuring him after discovering his peril.
(E. L.) Yazoo & M. V. R. Co. v. Kern, 138 S. W. Rep. 988;
000 Ark. 000.
If a servant voluntarily assumes, without any order, to
remedy a defect in a machine, such not being part of his em-
ployment, his master owes him no duty while he is engaged
in such act. (E. L.) Horn v. Arnold Schwinn & Co., 150
111. App. 559. (E. L.) Meller v. Merchants' Mfg. Co., 150
Mass. 362; 23 N. E. Rep. 100. (E. L.) McCue v. National
Starch Mfg. Co., 142 N. Y. 106. A servant cannot recover for
injuries received while acting outside the scope of his em-
ployment without the master's order, although the machin-
ery or appliances, may have been defective and dangerous.
(E. L.) Boyd v. Blumenthal, 52 Atl. Rep. 330; 3 Pennewill
(Del.) 564. Where an employe1, without request or direction
by the superintendent, volunteered to assist in ascertaining
the cause of the defective condition of the machine which
the employe1 operated, and while so doing she was caught in
the machine, it was held that the negligence of the defendant
in allowing the plaintiff's hand to remain caught in the ma-
chine did not give the plaintiff a right of action, since she had
placed herself in a dangerous position without defendant's
fault, and he was not under any legal obligation to use care
and diligence in releasing her. (E. L.) Allen v. Hixson, 36 S. E.
460 bradbtjry's workmen's compensation law
Volunteers; acting without scope of authority
Rep. 810; 111 Ga. 460. In the last-mentioned case it was
further held that the plaintiff was a mere volunteer in that
she was acting outside of the scope of her employment.
Recovery was refused where a workman had used a cir-
cular saw instead of attending to his duties as a laborer.
(E. L.) Brown v. Byroads, 47 Ind. 435. An employe injured
while performing* work on the roof of his employer's mill,
which is not within the scope of his employment, is a mere
volunteer and cannot recover. (E. L.) Ehmett v. Mitchell-
Tranter Co., 80 S. W. Rep. 1148; 26 Ky. Law Rep. 303. One
employed to stand at the air-tight doors across a shaft of
a coal mine and to open them for and to close them after a
train going in or out, and whose duty it is to keep himself
supplied with lamp oil and matches, cannot recover of his
employer where his lamp is blown out as he opens the doors,
and having neglected to supply himself with matches, he
climbs on to the rear of an outgoing train to get a match
from the driver and while passing along the tops of the cars,
falls between them. (E. L.) Hollingsworth v. Pineville Coal
Co., 74 S. W. Rep. 205; 24 Ky. Law Rep. 2437. A boy four-
teen years of age was employed as a bobbin boy, at a spin-
ning mill. His duty was to take off the bobbins. He had
been fully instructed for the work and while the machine was
in motion put on some weights which had fallen off, and was
injured. The duty to put on the weights belonged to men
employed for that purpose. It was held that the master
was not liable for the injuries received. (E. L.) Michael v.
Henry, 58 Atl. Rep. 125; '209 Pa. St. 213.
An accident which occurs to a workman while doing some-
thing for his own pleasure, foreign to his duty and his employ-
er's interest, does not arise out of and in the course of the em-
ployment. Smith v. Lancashire & Yorkshire Ry. Co. (1899),
79 L. T. 633; 1W.C.C.1. A railroad conductor on an ex-
cursion train, when the train was run, with permission, by
the employes, for their own pleasure, was held not to have
been injured in the course of his employment and compensa-
INJURIES ARISING OUT OP EMPLOYMENT 461
Volunteers; acting without scope of authority
tion was denied. Re C. C. Fitzpatrick, Op. Sol. Dep. C. &
L., p. 241. A boy employed in a spinning mill injured
himself while cleaning machinery in motion. The judge
found, as a fact, that he was not employed to clean the
machinery. It was held that the accident did not arise out
of the ^employment. Naylor v. Musgrave Spinning Co.
(1911), 4 B. W. C. C. 286. A workwoman, employed solely
to work one machine, scratched her hand on a machine of
another sort. It was not explained how she came to be at
the other machine. Blood poisoning followed, and she died.
It was held that the County Court judge was not justified
in inferring that the accident arose out of the employment.
Cronin v. Silver (1911), 4 B. W. C. C. 221. An engine driver
left his engine when it was standing at rest, and crossed the
line in order to communicate with the fireman of another
engine on business of his own not in any way concerning his
work or his employers. On his way back to his engine he
was knocked down by a truck and was killed. It was held
that the accident did not arise out of or in the course of the
man's employment within § 1 (1) of the Act of 1897. (House
of Lords), Reed v. Great Western Ry. Co. (1908), 99 L. T. 781 ;
2 B. W. C. C. 109. A workman going home to dinner through
his employers' docks, attempted to climb on a car of a rail-
way which traversed a portion of the docks, and in doing so
he fell and received permanent injuries. The arbitrator
found that he did not attempt to climb on the car for any
object of his employers, but for his own pleasure, and it was
held that the accident did not arise out of the employment.
Morrison v. Clyde Navigation Trustees (1908), 46 Scotch
L. R. 38; 2 B. W. C. C. 99. A domestic servant, who was out-
side the door of her employer's house drying her hair, re-
turned in response to an order, to the house to take charge of
a baby in a cradle within a couple of feet of the fire. She con-
tinued the operation of drying her hair; her sleeve was loose
and caught fire and from the injuries she died. No one
witnessed the accident, but according to a statement made
462 bradbuby's workmen's compensation law
Volunteers; acting without scope of authority
by the girl herself after the happening of the occurrence,
her clothes caught fire while she was drying her hair. It was
held that the accident did not arise out of and in the course
of her employment. Clifford v. Joy (1909), 43 Irish L. T.
193; 2 B. W. C. C. 32. A boy who had charge of the handle
of a machine, lifted off the cover over some pinion wheels
and played with ^hem, with the result that his hand was
caught in the wheels and the end of one of his fingers was
torn off. He had orders not to lift the cover or touch the
pinion wheels. It was held that the -accident did not arise
out of the employment. Furniss v. Gartside & Co. (1910),
3 B. W. C. C. 411. A stoker on a locomotive engine received
by mistake the wages of another man. He left his engine
and went over to an engine on which the other man was
working, in order to give him these wages. This engine was
traveling about five miles an hour. The workman attempted
to board the engine by grasping the rails at the side of the
doorway, missed the step and sustained personal injuries
by the wheels of the engine passing over his foot. It was
held that the attempt to board the engine while in motion
was obviously dangerous and wholly unnecessary, and that
the accident did not arise out of the employment. Williams
v. The Wigan Coal and Iron Co. (1909), 3 B. W. C. C. 65. A
workman sent on an errand loitered on the way back and
wasted time with friends, so that he took two hours to go
about a half a mile, at the end of which he suffered an acci-
dent, and it was held that it did not arise out of the employ-
ment. Bates v. Dairies' Executors (1909), 2 B. W. C. C. 459.
A laborer in a mine was, without instructions, acting as a
collier and was injured, and it was held that the accident
did not arise out of the employment. Edwards v. Inter-
national Coal Co. (1899), 5 W. C. C. 21. A girl, eighteen
years of age, acting as she thought in her master's interest,
left her work to start an engine, which was in charge of a
person who was not present. Several of her companions
warned her that she ought not to touch it. She was injured
INJURIES ARISING OUT OF EMPLOYMENT 463
Volunteers; acting without scope of authority
in starting the engine, and it was held that the accident did
not arise out of the employment. Losh v. Evans & Co.
(1902), 5 W. C. C. 17.
A boy who was injured while playing with a machine on
which he was not at work, cannot recover for injuries thus
received. (E. L.) Rock v. Indiana Orchard Mills, 142 Mass.
522; 8 N. E. Rep. 401.
Where a fireman was killed while leaning out of the cab
of the engine to deliver a postal card to another employ^, it
was held to be error, in an action for his death, to admit
evidence of a custom of the employes to thus deliver mail to
each other, it not being within the scope of their employ-
ment. (E. L.) Texas M. R. R. v. Taylor, 44 S. W. Rep. 892;
000 Tex. Civ. App. 000.
A servant engaged in blasting, who volunteered to go after
powder, when the foreman was about to send another man
cannot complain that he was injured by falling rock while
going under a hill where blasting had been done. (E. L.)
A. H. Jacoby Co. v. Williams, 65 S. E. Rep. 491; 110 Va. 55.
Where a workman acted as a fireman without his master's
acquiescence, recovery was refused. (E. L.) Alabama Great
Southern Ry. Co. v. Hall, 105 Ala. 599; 17 S. Rep. 176.
A maid in the defendant's employ was sent to New York
City to prepare a city house for the arrival of his family. She
arrived in the evening. The night watchman saw her and
rang the bell for her. He had no duty to perform inside the
house and had no key with which to enter it. The house-
keeper, not answering the bell, the watchman, without any
request or suggestion from the maid, went across the street
to find plaintiff, who was hired by the day to clean the house.
She had been there that day and the watchman thought she
might have a key. She came across the street and told the
watchman that he might get in through a window, which
she had been cleaning and had left unlocked. He went to
the main entrance, requesting the plaintiff, as he claimed, to
follow him and open the gate. As they passed in the plaintiff
464 bradbtjry's workmen's compensation law
Volunteers; acting without scope of authority-
fell over a board, which had been placed in a position to
prevent the gate from being forced in, and was injured.
It was held that the plaintiff could not recover, as both she
and the watchman were acting as volunteers in aiding the
maid to obtain entrance to the house, and that what the
plaintiff did was not within the scope of her employment.
(E. L.) Ryan v. Phipps, 146 App. Div. 642; 131 Supp. 438.
Where an employe* in a planing mill is injured while operat-
ing, for his own purpose, a machine not a part of the machin-
ery of the mill, but under the control of a third person who
got his power from the mill, it was held that the proprietor
of the mill was not liable for resulting injuries. (E. L.)
Gross v. Fischer Lumber & Mfg. Co., 43 So. Rep. 1006; 119
La. 201.
An infirmary received a present of an X-ray apparatus.
Nobody knew the time for necessary exposure for treatment
of ringworm, but a house-surgeon volunteered to have an
experimental exposure on his own arm. The result of this
was a serious burn. It was held that the accident did not
arise out of the employment, as the house-sUrgeon volun-
teered to have the experiment made and it related to no part
of his duties. Compensation was refused. Curtis v. Talbot
and Kidderminster Infirmary Committee (1911), 5 B. W.
C.C. 41.
Plaintiff's intestate employed as defendant's mill fore-
man, voluntarily and without orders, boarded defendant's
logging train to accompany defendant's manager on a visit
to a sick mule, and while riding in a dangerous place on the
train one of the cars was derailed and intestate was fatally
injured. It was held that the defendant was not liable, as
the intestate was not acting in the course of his employment.
(E. L.) Taylor v. Grant Lumber Co., 127 S. W. Rep. 962; 94
Ark. 566.
When a railway conductor, in the absence of any emer-
gency, places himself in a position of danger by going out-
side of the line of his duty and is injured by the moving of
INJURIES ARISING OUT OF EMPLOYMENT 465
Volunteers; acting without scope of authority
the train, he cannot hold the company liable, though the
engineer moved the train without ringing the bell, in viola-
tion of a rule of the company. (E. L.) Central of Georgia Ry.
Co. v. McWhorter, 42 S. E. Rep. 82; 115 Ga. 476. Where,
under the rules of a railroad company, no duty was imposed
on the conductor to examine or repair any appliance connec-
ted with the operation of the train, but the plaintiff, a con-
ductor, went between the engine and the cars to examine the
airbrake, without any pressing emergency, it was held that
he could not recover damages for injuries sustained. (E. L.)
Central of Georgia Ry. Co. v. McWhorter, 42 S. E. Rep. 82;
115 Ga. 476. Where a conductor in charge of a railroad
train voluntarily and in the absence of any emergency, went
between two cars and uncoupled them, which was outside
of his duties, and was injured through the negligence of the
company, it was held that he could not recover. (E. L.)
Whitton v. South Carolina & G. R. Co., 32 S. E. Rep. 857;
106 Ga. 796. Where an engine is derailed while run by a
conductor not shown to have run an engine before, nor to be
licensed to run an engine, there can be no recovery against
the employer in consequence of injuries to the conductor.
(E. L.) Gibson v. New Orleans Terminal Co., 58 So. R. 1015;
131 La. 10.
An employe, injured in loading fails on a moving car, can-
not recover where the injuries were caused by his attempting
to straighten a rail after it was put on the car, which was a
duty not required of him by his employer. (E. L.) Cleve-
land, C. C. & St. L. Ry. Co. v. Carr, 95 111. App. 576. A
section hand belonging to a gang under one foreman, who is
injured while engaged voluntarily and without orders from
the foreman in assisting another gang under another fore-
man, is not within the scope of his employment and cannot
recover. (E. L.) Southern Ry. Co. v. Guyton, 25 So. Rep. 34;
122 Ala. 231. Where a section foreman and his subordinate
in the employ of a railway company, were in the habit of
carrying a gun on a handcar, without the knowledge of their
30
466 Bradbury's workmen's compensation law
Volunteers; acting without scope of authority
superiors, for the purpose of shooting game, and through an
accident or carelessness of the foreman his assistant was in-
jured by the discharge of said gun, it was held that there
could be no recovery against the railway company for such
injury, the act not being authorized or done in the discharge
of any duty. (E. L.) Chicago, R. I. & P. By. Co. v. Smith,
63 Pac. Rep. 29#; 10 Kans. App. 162.
Where the plaintiff was engaged to perform service which
was not dangerous, without any request or direction from
the foreman, and so far as proved, without his knowledge,
attempted to operate a mincemeat pressing machine during
the temporary absence from the room of the operator of the
machine, and was injured in so doing, it was held that her
employer was not liable therefor. (E. L.) Duvall v. Armour
Packing Co., 95 S. W. Rep. 978; 119 Mo. App. 150.
Where the plaintiff, a boy of sixteen, employed to remove
material from a planing machine, volunteered, without sug-
gestion or leave from anyone, to oil the machine, and he
had been warned that it was dangerous to do so, it was held
that the master was not liable to him for an injury received
while thus engaged. (E. L.) Floyd v. Kentucky Lumber Co.,
66 S. W. Rep. 501 ; 23 Ky. Law Rep. 1914.
The duty of a master to safeguard machinery is owing to
such employe's only as in the course of their employment are
required to use it. (E. L.) Stodden v. Anderson & Winter
Mfg. Co., 116 N. W. Rep. 116; 138 Iowa, 398.
(6) Cases in which damages or compensation awarded.
Whatever a workman does under competent authority for
the comfort and covenience of his fellow workmen is pre-
sumed to be for his employer's benefit, where such work is
not so foreign to his employment that he would be justified
in refusing to do it. (E. L.) Broderick v. Detroit Union R.
Station & Depot Co., 22 N. W. Rep. 802; 56 Mich. 261. It is
not always essential that an employe actually be engaged in
performing specific duties, in order to make applicable rules
INJURIES ARISING OUT OF EMPLOYMENT 467
Volunteers; acting without scope of authority
of law determining his rights and his employer's liabilities,
when he is injured while actually engaged in the performance
of his duties. (E. L.) Louisville & N. R. Co. v. Chamblee,
54 So. R. 681; 000 Ala. 000. The scope of a servant's duties
is determined by what he was employed to do and what he
actually did with his employers' knowledge and consent,
and an employe* who was performing the same services he
was in the habit of performing when he was injured, is not a
volunteer in performing such duties. (E. L.) Dixon v. Chi-
quola Mfg. Co., 68 S. E. Rep. 643; 86 S. C. 435. A workman
who, under orders of his superior, engages in some other
than his regular employment, is not, on that ground, deemed
to be a volunteer, to whom the duty of exercising reasonable
care is not owing. (E. L.) Laragay v. East Jersey Pipe Co.,
72 Atl. Rep. 57; 000 N. J. Law 000; rev'g, 68 Atl. Rep. 1073;
000 ~NL J. Law 000. Where the servant acts in obedience to
an express order of the master, the master cannot escape
liability for the consequences of the servant's acts, on the
ground that they were outside the duty for which he was
employed. (E. L.) Rimmer v. Wilson, 93 Pac. Rep. 1110;
000 Col. 000. An employe* who obeys the order of the man-
ager of his employer and does necessary work in defendant's
service, cannot be considered in a legal sense as one engaged
in work beyond the scope of his employment. (E. L.)
Bonnin v. Town of Crowley, 36 So. Rep. 842; 112 La. 1025.
An injury received by a servant in attempting to procure
a tool necessary in his work, is in the line of his employment.
(E. L.) Conley v. Lincoln Foundry Co., 14 Pa. Sup. Ct. 626.
An "employe engaged at a planer in a saw mill was held to
be in the discharge of his duty when the machine was stopped
by a board and he stepped to one side of it to ascertain the
cause of the difficulty and stepped into a hole in the floor.
(E. L.) Baker v. Duwamish Mill Co., 86 Pac. Rep. 167;
43 Wash. 149.
The applicant was employed under a contract as a civil
engineer for an incorporated city. He used an office in com-
468 bradbury's workmen's compensation law
Volunteers; acting without scope of authority
mon with other city officials. While assisting the City clerk
to scrub the office floor he slipped and sustained injuries
which disabled him for eight weeks. It was held that the
injuries were received while the applicant was performing
services growing out of and in the course of his employment
and he was therefore entitled to compensation. Paradise v.
City of Rice Lake, Wis. Indus. Ace. Bd.
An employer cannot escape liability for death of an em-
ploye1 on the ground that he was a volunteer, because the
work in which he was engaged at the time of his death was
not his regular work, where it appears that the employ6
was sent to do the work by the employer's authorized repre-
sentative. (E. L.) Krueger v. Bartholomay Brewing Co., 182
N. Y. 544; aff' g 94 App. Div. 58; 87 Supp. 1054. Where an
employe1 under the direction of his foreman, assisted in fight-
ing a fire which broke out on the master's premises, and he
was killed, it was held in the lower court that he was acting
within the scope of his employment, but on appeal a judg-
ment in favor of the representatives of the deceased work-
man was reversed on the ground that the workman assumed
all the risks incident to such an employment. (E. L.) Maltbie
v. Belden, 167 N. Y. 307; rev'g 45 App. Div. 384; 60 Supp.
824. A common factory laborer is acting within his employ-
ment in undertaking to clean a punching machine by the
order of the machinery operator under whose direction he
has been placed by the foreman. (E. L.) American Car and
Foundry Co. v. Adams, 99 N. E. Rep. 993; 178 Ind. 607. A
servant hired by the day for certain work was instructed by
the foreman to look after the belts operating a machine near
which the servant was working, and in so doing was injured
by the breaking of the belts. It was held that he was doing
work within the scope of his employment and the master
was liable. (E. L.) Mathews v. Kerlin, 48 So. Rep. 123;
122 La. 606. Where an employe1 was directed by his section
boss to repair a private track not owned by the railroad
company, but connected with its lines, the company was held
INJURIES ARISING OUT OF EMPLOYMENT 469
Volunteers; acting without scope of authority
liable as the employ^ had a right, under such circumstances,
to assume that he was working within the line of his duty.
(E. L.) Brown v. Toledo & 0. C. Ry. Co., 19 Ohio Cir. Ct.
Rep. 510. Where the yardmaster of a transfer railroad
ordered the foreman of a switching crew to go with his crew
to the plant of a manufacturer and find a car there and take
it out, it was held that the order was tantamount to a com-
mand to go to any place in the plant where the car might be
located, and a switchman under the control of the foreman
was in the line of his duty in going to the place where the
car was found. (E. L.) Liston v. St. Louis Transfer Ry. Co.,
130 S. W. 381; 000 Mo. App. 000. Two gangs of section
hands were working at a wreck, and one foreman, under
instructions of the superintendent in charge of the work
ordered one of his men to assist the gang under the other
foreman in doing a particular piece of work. Such man was
held to be working within the scope of his employment.
(E. L.) Southern Ry. Co. v. Guyton, 25 So. Rep. 34; 122 Ala.
231. A boy sixteen years of age, was ordered by the fore-
man to change a gear of a machine, although he had never
done such work before, and it was held that he was not work-
ing without the scope of his duties when he was injured in
complying with the foreman's order. (E. L.) Morrisett v.
Elizabeth City Cotton Mills, 65 S. E. Rep. 514; 151 N. C. 31.
Where a boy twelve and a half years old, employed as a
cash boy, was requested to go to the warehouse to work,
and the president of the company saw him there rendering
services, it was held that the employer was liable for injuries
inflicted while the boy was in the warehouse. (E. L.) Jenson
v. Will & Finck Co., 89 Pac. Rep. 113; 150 Cal. 398.
Where a person employed an immature and inexperienced
person for a dangerous service, the fact that he explains to
him the incidental dangers and how to avoid them does not
relieve the employer from liability to the servant, if the work
required of him was not within the scope of his employment
and such as should not have been required of a person of his
470 bradbuby's workmen's compensation law
Volunteers; acting without scope of authority
capacity. (E. L.) Hayes v. Colchester Mills, 37 Atl. Rep.
269; 69 Vt. 1. A servant, inexperienced and under age,
was injured while at work on the double-board of a derrick.
The foreman saw him go up the derrick to work on the
double-board, and knew his inexperience, but did not in-
struct or warn him of danger, but permitted him to work
there. It was hefd that he was not a volunteer, but must
be regarded as having been put to work by the foreman.
(E. L.) Producers' Oil Co. v. Barnes, 120 S. W. Rep. 1023;
000 Tex. Civ. App. 000. A boy aged nineteen was employed
as one of a crew to shackle and kill hogs'. He did not under-
stand English and had been instructed by his foreman by
means of motions and signs. During the absence of other
members of the crew the applicant shackled a hog and at-
tempted to kill it. In the process he cut his right hand.
Ordinarily, the killing was done by one employe^ known as
the butcher, while the separating and shackling was done by
two or three other employes, including the applicant. It
was held under the wording of the Wisconsin Workmen's
Compensation Act, which allows compensation for injuries
occurring while a workman is performing services growing
out of and incidental to his employment, that the applicant
was entitled to compensation. Mike Magda v. Plonkington
Packing Co., Wis. Indus. Ace. Bd., April 23, 1913. The
voluntary offer of a willing servant to make himself useful
in a matter not covered by any express command, does not,
as a matter of law, put him outside the limits of his em-
ployment, where the proffered service is accepted by his
superior, though not by an approval expressed in words.
(E. L.) Miner v. Franklin County Telephone Co., 75 Atl. R.
653; 83 Vt. 311. Where an employ^ is not engaged for any
particular work but is employed to do what may be required
of him, his acts under the direction of a vice principal are
within the scope of his employment. (E. L.) Mericle v. Acme
Cement Plaster Co., 136 N. W. Rep. 916 ; 155 Iowa, 692. Where
the agent of the defendant's saw mill company, on the even-
INJURIES ARISING OUT OF EMPLOYMENT 471
Volunteers; acting without scope of authority
ing before plaintiff's injury, directed him to "get in and do
anything that he saw to be done," it was held that such a di-
rection was sufficient to include the coupling of cars. (E. L.)
Stark v. Port Blakely Mill Co., 87 Pac. Rep. 339; 44 Wash.
309.
Where a master divided his business into departments
and required employes idle in their own departments to help
in some other department, and the foreman of a department
received an employe1 of another department and accepted
his services and directed him, it was held that the employe
was not a volunteer, but was engaged in the performance
of his duties. (E. L.) Hugo, Schmeltzer & Co. v. Paiz, 128
S. W. Rep. 912; 000 Tex. Civ. App. 000.
A section hand who, while being transported to his place
of employment, was injured in attempting to replace a
trolley which had slipped from the wire, was held to be not
a mere volunteer, where it appeared that the work had been
done by the section men on former occasions with the knowl-
edge and consent of the officers of the company. (E. L.)
Toledo, B. G. & F. Ry. Co., v. Pfisterer, 26 Ohio Cir. Ct. Rep.
669. A street railroad company cannot avoid liability for
death of a conductor caused at night by coming in contact
with a broken trolley wire lying on the ground, on the theory
that he was a mere volunteer in leaving his car to investigate
the break. (E. L.) Martin v. North Jersey Street Ry. Co.
80 Atl. R. 477; 000 N. J. Law 000.
A woman, part of whose work was to clean certain ma-
chinery in a factory, finding the guard removed from another
part of the machinery which it was not her duty to touch,
proceeded to clean it. While she was cleaning it the ma-
chinery started, and she was injured. It was held that the
accident arose out of the employment and compensation was
awarded. Greer v. Lindsay Thompson (1912), 46 Ir. L. T.
89; 5 B. W. C. C. 586.
A "barrow-man" changed places with a "tipper" in the
work of unloading a ship and met with an accident after
472 bradbury's workmen's compensation law
Volunteers; acting without scope of authority
making such change. It was the practice of the men to ex-
change work and the practice was known to and not for-
bidden by the employer. It was held that the accident arose
out of and in the course of the employment and compensation
was awarded. Henneberry v. Doyle (1911), 46 Ir. L. T. 70;
5 B. W. C. C. 580. Where an employe assigned to certain
duties has been intthe habit of changing places with another
employe, and this custom is known to the employers, and
such employe was injured while doing the work of the other
employ^, he was not a mere volunteer and the employer is
responsible for injuries which he receives under such cir-
cumstances. (E. L.) Belton Oil Co. v. Duncan, 127 S. W.
Rep. 884; Tex. Civ. App. Two boys employed in threshing,
exchanged positions with the knowledge of the foreman in
charge, and one of them was injured. It was held that such
injury occurred during the course of the boy's employment.
Cambrook v. George (1903), 5 W. C. C. 26. Where an employe
of a lumber company, operating a railroad from its mill to
a railroad station, was employed as engineer of its train,
with power to hire and discharge the train crew and had full
charge of the train, it was held that he did not act outside
the scope of his employment, while acting as switchman, on
his becoming dissatisfied with the manner in which the reg-
ular switchman did his work. (E. L.) Blackburn v. Cherokee
Lumber Co., 67 S. E. Rep. 915; 152 N. C. 361. Where a serv-
ant called on to do various kinds of work in an electric light
and power plant, went with the superintendent of the plant
to another room to remedy a defect in the lines therein, and
there was no objection to his presence in the room or to any
activity on his part, it was held that it was not outside of the
scope of his employment while in the room and at work
attempting to remedy the defect. (E. L.) Short v. Fort Dodge
Light & Power Co., 128 N. W. Rep. 366; 149 Iowa, 303. An
operator of a freight elevator is not without the scope of his
employment in going to the fifth floor of the building to see
what has stopped his elevator, although generally he had no
INJURIES ARISING OUT OP EMPLOYMENT 473
Volunteers; acting without scope of authority
duties above the third floor. (E. L.) Stone v. Boscawen
Mills, 52 Atl. Rep. 119; 1% N. H. 288. In the last-mentioned
case it was further held that the freight operator was not
without the scope of his employment in removing a slight
obstruction which had stopped the progress of the elevator,
such removal not being such as to involve any hazard under
ordinary conditions, although the instructions of the oper-
ator were to report to the mechanic in charge when his
elevator would not run or needed fixing.
If an elevator operator was authorized to request plain-
tiff, a passenger, to go upon the roof of the car in order to
replace a screen to prevent objects from falling upon him-
self and passengers, plaintiff was not a trespasser while
doing so, but was a servant of the owner for the time being.
(E. L.) Baynes v. Billings, 73 Atl. 625; 30 R. I. 53.
. If a pumper employed by a railroad company, whose
duties required him to ride between pumping stations,
believed, and was justified in believing that he had a right to
ride in the engine with the engineer's and the conductor's
permission, it was held that he was in the line of his duties,
although he voluntarily or by request, performed the duties
of fireman for the engineer. (E. L.) Kunza v. Chicago &
N. W. Ry. Co., 123 N. W. Rep. 403; 140 Wise. 440.
Where a hostler was directed by his foreman to place cer-
tain engines on a particular switch, it was held to be within
the course of his duty to throw the switch so as to permit the
engines to be run thereon. (E. L.) Gray v. Northern Pac.
Ry. Co., 121 N. W. Rep. 142; 139 Wise. 419.
A delivery clerk, whose duty it was to see that bales of
cotton were delivered to the proper person, became sus-
picious that certain bales of cotton were being stolen, as they
had been before, and threw down bales which were piled on
each other, as he thought, for the purpose of creating a
"blind", and in so doing he injured a longshoreman, who
was working among the cotton bales. It was held that the
delivery clerk was within the scope of his employment, even
474 bradbury's workmen's compensation law
Volunteers; acting without scope of authority
though a watchman was employed to prevent thieves from
stealing the cotton, and for the injuries thereby caused the
employer was responsible. (E. L.) Courtney v. Baker, 70
N. Y. 1.
Where an agent having sole charge of the preparation and
exhibition of cumbersome and complicated machinery calls
to his assistance one who in good faith enters upon such
work, the person so employed is not a volunteer or tres-
passer, but for the time being assumes the relation of master
and servant; (E. L.) Maxson v. J. I. Case Threshing Ma-
chine Co., 116 N. W. Rep. 281; 81 Nebr. 546.
Where blasting could not be safely done in a mine while
mining was in progress, and it was the custom, when a miner
left before quitting time, for his mate to fire off his blast,
it was held that the plaintiff was not a volunteer in firing
the blast of his fellow miner, according to such custom.
(E. L.) McHenry Coal Co. v. Render, 104 S. W. Rep. 996;
31 Ky. Law Rep. 1274. A minor who is directed to assist
the operator of a trip hammer is not a mere volunteer in
assisting the operator to remove a die. (E. L.) B. F. Avery
& Sons v. Cottrill's Guardian, 107 S. W. Rep. 332; 32 Ky.
Law Rep. 914. A person employed by a purchaser of motors
to inspect them before acceptance, who assisted the seller's
employe1 in making a test, was not a mere volunteer. (E. L.)
Johnson v. E. C. Clark Motor Co., 139 N. W. Rep. 30; 173
Mich. 277.
A freight conductor, on reaching, late at night, a station
situated one mile from a trestle, was informed by the road
superintendent that, owing to a heavy rain, it was likely
that two culverts would be in a dangerous condition, one
of which was half-way between .the station and the trestle,
and the other beyond the trestle, but nothing was said
about the trestle. The conductor detached the engine and
with the engineer, fireman, one brakeman and the road
superintendent, started to examine the culverts. The first
was found to be all right, when they proceeded to the second,
INJURIES ARISING OUT OF EMPLOYMENT 475
Unnecessarily going to other portion of employer's premises
and on attempting to cross the trestle, it gave way, and the
conductor was killed. It was held that considering the emer-
gency and that the conductor was exercising such ordinary
care as was necessary for the safe movement of the train, he
was acting within the scope of his employment. (E. L.)
Terre Haute & I. R. Co. v. Fowler, 56 N. E. Rep. 228; 154
Ind. 682; 48 L. R. A. 531.
The Factory Act of Kansas (Laws 1903, ch. 356, § 4),
providing that every person owning or operating any manu-
facturing establishment in which machinery is used, shall
furnish and supply for use therein certain specified safeguards
for machinery and appliances, is not limited in application to
workmen engaged in their ordinary duties, but is designated
to protect persons employed in manufacturing establishments
while in the performance of any duty, whether ordinary and
general, or exceptional and occasional. (E. L.) Caspar v.
Lewin, 109 Pac. R. 657; 82 Kans. 604.
Where a logging company also ran a railroad, and the
plaintiff, an employe* of the company, was directed to act
as a brakeman on the railroad, it was held that he was an
employe of both the railroad and the logging company, as
respects injuries he received while acting as such brakeman.
(E. L.) Barrow v. B. R. Lewis Lumber Co., 95 Pac. Rep. 682;
14 Idaho, 698.
16. Going to portions of employer's premises other than
those necessarily used by the workman, for his own
convenience or pleasure.1
A master's duty to furnish his servant a safe place for
work extends to such parts of his premises only as he has
prepared for their occupancy while doing his work, and to
such other parts as he knows, or ought to know, they are
accustomed to use while doing it, and when a servant goes
to some other part for his own convenience, the general rule
is that he is regarded as a licensee merely. (E. L.) Connell v.
1 See paragraphs 4 and 10, ante, in this Article.
476 bradbury's workmen's compensation Law
Unnecessarily going to other portion of employer's premises
New York Central & H. R. R. Co., 144 App. Div. 664; 129
Supp. 666. Where a servant is injured in a place where he
has no right to be, or if he goes out of his employment for
some private purpose, and not on his employer's business,
he has no cause of action against the employer for injuries.
(E. L.) Pioneer Mining & Mfg. Co. v. Talley, 43 So. Rep.
800; 000 Ala. 000. *The rule that the master owes a duty to
furnish his servant with a reasonably safe place to perform
his work can have no application where the servant, when
injured, has completed the work and, for his own conven-
ience, goes to a place where his work does not call him, to
seek a place of shelter. (E. L.) Sutton v. Wabash R. Co., 152
111. App. 138.
An employe* after quitting his day's work, instead of leav-
ing his employer's premises by the usual means of egress,
remained upon the premises and went to a part thereof
remote from the part where he was employed, for the pur-
pose of seeing an employe of another department of his em-
ployer, on some personal matter of interest to himself, and
while so doing was injured. It was held that the injury did
not occur in the course of the employment. Re J.. V. Mit-
chell, Claim No. 3834, Ohio State Lia. Bd. Awd., June 2,
1913.
Where a servant voluntarily and without any necessity
growing out of his work, and for his own convenience, goes to
a position or some place where it is not necessary or proper
that he should be, either in going to or returning from his
services, he thereby suspends the relation of master and serv-
ant as between his master and himself. (E. L.) Lynch v.
Texas & P. Ry. Co., 133 S. W. Rep. 522; 000 Tex. Civ. App.
000. In the last mentioned case the plaintiff was. in the de-
fendant's employ as a hostler, his duties being to watch for
the arrival of engines in the yard, and be at the place where
they stopped to take charge and control of them when they
were disconnected from the train, and operate them to the
turn table or round house. On the night he was injured a
INJURIES ARISING OUT OF EMPLOYMENT 477
Unnecessarily going to other portion of employer's premises
long freight train came into the yard and the plaintiff at-
tempted to climb to the top of one of the cars to walk for-
ward to the train toward the engine, so as to be near it when
it stopped. In this position he was crushed between the car
and a box standing on an adjacent track. Hostlers some-
times got on to the cars to traverse the yard to the point
where the engine stopped. The yard master knew of this
habit and had forbidden it. It was held that the plaintiff
was a mere licensee and could not recover.
An employe' who was killed on a freight elevator, was on
the elevator at the time not as an employe of the defendant
discharging duties within the scope of his employment, but
at best under an implied license for his own pleasure and
convenience, and he was familiar with its construction and
operation. It was held that the only duty that such use could
impose on the defendant would be to operate it with ordinary
care in view of such use. (E. L.) O'Brien v. Western Steel Co.,
13 S. W. Rep. 402; 100 Mo. 182.
Although a servant's regular duties required him to go
upon the roof of a mill in which he worked, yet if, at the time
he was injured by the falling of the roof, he was on the roof
not in the discharge of a duty within the scope of his employ-
ment, the master is not liable although he was negligent in
permitting the roof to be defective. (E. L.) Mitchell-Tranter
Co. v. Ehmett, 65 S. W. Rep. 805; 23 Ky. Law Rep. 1788;
55 L. R. A. 710.
A stevedore worked on a lighter which was reached by pass-
ing from a rear hatch of a ship through a port-hole in the
side. He went from the hatch to the fore part of the ship
and left his coat, which could have been left at some other
place more convenient to his place of employment. In the
evening he got his coat and without attempting to reach the
rear hatch, he fell into an unguarded hatchway lying entirely
outside of the direct line between the rear hatch and the
port-hole. It was held that his employer was not liable as
the workman's duties did not require him to be where he
478 bradbury's workmen's compensation law
Unnecessarily going to other portion cf employer's premises
was when he was injured. (E. L.) Kennedy v. Chase, 52
Pac. Rep. 33; 119 Cal. 637.
A coal mine employe* who left the part of the mine in which
he was hired to work and went to another part of the mine to
get a tool, which he had loaned to another employe^ was
struck while returning, by a piece of slate which fell from the
roof, and it was heM that he could not recover for his injury,
as the master's duty to furnish a safe place for work did not
apply while the employe was outside of the place of his em-
ployment and in a place where he was neither invited nor
expected to go. (E. L.) Brown v. Shirley Hill Coal Co., 94
N. E. Rep. 574; 47 Ind. App. 354.
The deceased employe* had gone to another part of the
mine in which he was employed to visit a fellow laborer, dur-
ing the noon hour. When returning he stopped on two
occasions to pick slate from the roof of the mine and while
so doing he came in contact with a live wire and was killed.
It was held that he was not engaged in the business of his
employer at the time of the injury, while returning from a
visit undertaken upon his own volition, outside the part of
the mine in which he was employed, and that therefore he
could not recover from his employer. (E. L.) Ellsworth v.
Metheny, 104 Fed. Rep. 119.
The plaintiff was employed in unloading a gondola car
and when the engine started to take the car to a switch, the
plaintiff, who was then on the ground, jumped from the
ground to ride down to the switch and back, although there
was no work for him to do at the switch, and he merely rode
down there to pass away the time until the car was returned.
He was knocked off the car while it was in motion, by an
overhanging tree limb. It was held that the plaintiff was not
acting within the line of his employment when injured and
that therefore the company was not liable. (E. L.) Southern
Railway Co. v. Bentley, 56 So. R. 249; 1 Ala. App. 359.
The plaintiff's intestate, who was a bridge foreman on the
defendant's railroad, living at the time in an outfit car on
INJURIES ARISING OUT OF EMPLOYMENT 479
Unnecessarily going to other portion of employer's premises
a siding, went with his family on a velocipede car one after-
noon to a spur track some two and a half miles distant, near
which his father-in-law resided. The car was returned
and in the evening, at about 7 o'clock, some of the men, by
his direction, came after him with a hand car. He was then
at his father-in-law's house, where he had been visiting
since 5 o'clock, by which time his business for the defendant
at the spur, if any, had been finished. At about 8:30 o'clock
he started back with the men, having no light on the car,
and while on the way was killed in a collision with a special
train. It was held that at the time he was engaged in his
own private affairs, and the relation of master and servant
did not exist between him and the defendant, so as to make
the defendant liable for injuries to their employes through
the negligence of fellow servants. (E. L.) Russell v. Oregon
Short Line R. Co., 155 Fed. Rep. 22.
While resting, under a rule permitting him to do so, an
employe may not needlessly wander from the proper sphere
of his work into other departments of the establishment and
be within the scope of his employment. But if no resting
place is prescribed and no boundaries fixed, he may use his
discretion in selecting a place to rest and may with due cir-
cumspection occupy any of the vacant places near his ma-
chine and in touch with his work. (E. L.) Pittsburg Vitrified
Pav. & Build. Brick Co. v. Fisher, 100 Pac. Rep. 507; 79
Kan. 576.
Where in an action for the death of a miner by the fall of
a part of the roof, there was evidence that the injury occurred
not in a passageway, but in a dangerous portion of the mine
where decedent had no right to be, the court properly charged
that if the accident did not occur in the passageway, but in
a chamber where he was not required to be, that the defend-
ant was not bound to keep such place reasonably safe, and
plaintiff could not recover. (E. L.) Northern Coal & Coke Co.
v. Altera, 104 Pac. Rep. 197; 46 Colo. 224. In the last men-
tioned case it was further held that a coal miner being killed
480 Bradbury's workmen's compensation law
Serious and wilful misconduct; intoxication
while needlessly loitering, through curiosity or otherwise, in
the room, the roof of which was momentarily expected to
fall as a result of the shock of a blast, there could be no re-
covery for his death.
An action cannot be maintained under the Employers'
Liability Act (Revised Laws, Chap. 106, § 73) for a wrong-
ful death unless the decedent was acting in the service of the
defendant at the time of the accident. (E. L.) Gooch v.
Citizens Electric St. Ry. Co., 88 N. E. Rep. 591; 202 Mass.
254. In the last-mentioned case the decedent was employed
by defendant as a regular motorman to operate a car during
certain hours each day. He wished to be relieved from duty
during one day and he was promised that he could have such
relief if he could find a substitute. While trying to find such
a substitute he was killed, apparently by an electric shock,
in the telephone booth in the defendant's waiting room.
It was held that the defendant could not recover, as the de-
cedent was not in the defendant's service at the time of the
accident.
A coal miner, who, during the noon hour, while not en-
gaged in work, goes to a different part of the mine for the pur-
pose of visiting with another miner, is not, while so absent,
engaged in the line of his duty so as to impose upon the em-
ployer the duty of a master to see that the entry through
which he passes to the part of the mine where he is employed,
is kept in a safe condition for his passage. (E. L.) Ellsworth
v. Metheney, 104 Fed. 119;" 51 L. R. A. 389.
17. Serious and wilful misconduct; intoxication.1
The provision in many of the compensation acts to the
effect that benefits shall be denied if the injury is due to the
serious and wilful misconduct of the workman, has been the
subject of a good deal of discussion. There are certain cir-
1 See next succeeding numbered paragraph.
See also specific provisions of the compensation statutes of the various
American States in Article D, in this Chapter.
INJURIES ARISING OUT OF EMPLOYMENT 481
Serious and wilful misconduct; intoxication
cumstances under which it seems, at first thought, the height
of injustice to compel employers to pay compensation for
injuries received by the workmen. When, for example, an
employer gives specific and plain instructions to a workman,
which are fully understood by the latter, not to do a par-
ticular thing or to refrain from interfering with or touching
a specific machine and the workman disobeys the order, it
is not easy to understand why the employer should suffer
the consequences by being compelled to pay compensation
to the workman for the injury. Yet all of the compensation
acts do not contain this provision. Some of them deny com-
pensation only when the injury is wilfully or intentionally
inflicted. Various other terms are found in the different
statutes. No doubt the British Act has had considerable
influence on the subject, as have also the reasons which
impelled the adoption of the British rule. There compensa-
tion is denied if the injury is caused by serious and wilful
misconduct, unless it results in serious and permanent dis-
ablement or death. The British rule was undoubtedly adopted
out of a tender regard for the hardships of the workman's
family in such cases and has been retained in spite of a good
deal of very harsh criticism.1 Disobedience of orders is
misconduct but it is not always serious and wilful miscon-
duct within the decisions under the compensation acts.
Under some of the statutes compensation is denied when
an accident is caused by the employees intoxication.
The specific provisions of the various statutes in the
American States will be found collated at the end of this
subdivision.
Where a workman knowingly breaks a rule made by the
employer in the interests of the safety of the workmen and for
their own protection and that of the public, such act on his
part is evidence of serious and wilful misconduct within the
meaning of the Act. Bist v. London & South Western By. Co.
1 See discussion of this subject at page 6.
31
482 beadbury's workmen's compensation law
Serious and wilful misconduct; intoxication
(1907), 96 L. T. 750; 9 W. C. C. 19. The last-mentioned
case was decided by the House of Lords. The accident oc-
curred on March 4, 1905, prior to, the enactment of the pres-
ent Compensation Law. In that case an engine-driver was
killed by being hit by a bridge over the track. He had
climbed back on the tender, for the purpose, it was contended,
of getting a better* quality of coal, to make the engine steam
better so lost time could be made up. The company had
issued a rule forbidding the driver or fireman to leave the
running board while the engine was in motion. The court
held that the violation of this rule was such serious and wil-
ful misconduct as precluded the dependents of the driver
from recovering compensation. The section of the British
Compensation Act under which this decision, was made
was amended in the revision of 1906, § J, (2) (c) by adding the
words in italics in the paragraph below, making it read as
follows:
"If it is proved that the injury to a workman is attrib-
utable to the serious and wilful misconduct of the workman,
any compensation claimed in respect of that injury shall,
unless the injury results in death or serious and permanent
disablement, be disallowed."
A workman was employed to oil machinery and was
strictly forbidden to oil it when it was in motion. He had
been seen to do so, and warned against the practice. He did
so again and received injuries from which he died. It was
held that the accident arose out of the employment and com-
pensation was awarded. Mawdsley v. West Leigh Colliery Co.
(1911) 5 B. W. C. C. 80. The decision in the last-mentioned
case was on the ground that, as the accident resulted in
death, the provisions of the amended British Act relating
to serious and wilful misconduct did not apply.
"Whether or not misconduct is serious is to be determined
from its nature, and not from its consequences. Johnson v.
Marshall Sons & Co., 22 T. L. R. 565.
Misconduct is not serious merely because the actual con-
INJURIES ARISING OUT OF EMPLOYMENT 483
Serious and wilful misconduct; intoxication
sequences in the particular case are serious; the misconduct
must be serious in itself. Any neglect is serious within the
meaning- of the British Compensation Act, which in the
view of reasonable persons in a position to judge, expose
anybody, including the person guilty of it, to the risk of
serious injury. Or if the injury to be feared is of such a
character that it may be described as serious, then the case
is within the language of the Act. Hill v. Granby Consoli-
dated Mines (1906), 12 B. C. 118; 1 B. W. C. C. 436.
In the expression "serious and wilful misconduct," the
word "serious" applies to the misconduct itself and not to
the actual consequence of it; and the word "wilful" imports
that the conduct was deliberate and not merely a thoughtless
act on the spur of the moment. Johnson v. Marshall, Sons
& Co. (1906), 94 L. T. 828; 8 W. C. C. 10.
Proof of negligence merely is not sufficient to maintain
a charge of serious and wilful misconduct. Rees v. Powell
Duffnjn Steam Coal Co. (1900), 4 W. C. C. 17. A boy work-
ing at a machine used for cutting screws leaned over a cir-
cular saw which was in motion, to pick up an uncut screw
which had fallen from its place and in doing so injured his
finger. He had been told frequently not to put his hand
across the saw. It was held that there was evidence of neg-
ligence, but not of serious or wilful misconduct which
would preclude the boy from recovering compensation.
Reeks v. Kynoch (1901), 4 W. C. C. 14.
Whether an employer would be justified in dismissing a
workman without notice is a test of whether or not mis-
conduct is serious and wilful. Johnson v. Marshall, Sons &
Co. (1906), 94 L. T. 828; 8 W. C. C. 10.
It is not every breach of a rule that will constitute serious
and wilful misconduct. The question is one purely of fact
to be determined by the arbitrator in each case. (House
of Lords) George v. Glasgow Coal Co. (1908), 99 L. T. 782; 2 B.
W. C. C. 125. A bare breach of regulation from which no
injury could reasonably be anticipated is not serious mis-
484 bradbury's workmen's compensation law
Serious and wilful misconduct; intoxication
conduct. Johnson v. Marshall, Sons & Co. (1906), 94 L. T.
828; 8 W. C. C. 10.
If a workman unnecessarily breaks an express and em-
phasized order made solely for his own protection, and
which he fully understands and appreciates, he is guilty
of seripus and wilful misconduct. Jones v. London & South
Western Ry. Co. (4901), 3 W. C. C. 46. Deliberate and in-
tentional disobedience on the part of a workman to an oft-
repeated order whereby he and his fellow workmen are
placed in danger, is serious and wilful misconduct. It is
no answer to this defense that the workman believed the
course he was adopting when disobeying his instructions
was not a dangerous one. Brooker v. Warren (1907), 23
T. L. R. 201; 9 W. C. C. 26. In the last-mentioned case a
fatal accident was caused by the act of the deceased in re-
moving a guard from a circular saw. Compensation was re-
fused.
A workman was cautioned by a foreman not to use a
freight elevator until he was acquainted with it. He, never-
theless, attempted to use it and later in the day was found
dead, jammed between the side of the elevator and the floor.
There was no evidence that he had not been instructed in
the use of the elevator and that he had not had an oppor-
tunity of becoming acquainted with it. It was held that the
employers had not discharged the onus resting upon them to
show that the deceased had been guilty of serious and wil-
ful misconduct, and therefore compensation was awarded.
Granick v. British Columbia Sugar Refinery Co. (1910), 15
B. C. R. 193; 4 B. W. C. C. 452, rev'g (1909), 14 B. C. R. 251;
2 B. W. C. C. 511.
A collier ordered to cut a road in the colliery left his work
and went to cut coal in a part of the mine where it was for-
bidden by special rule to cut any, and he thereby undermined
some props, and caused a fall, which killed him. It was held
that the accident did not arise out of nor in the course of the
employment. The court said: "If a workman is doing
INJURIES ARISING OUT OP EMPLOYMENT 485
Serious and wilful misconduct; intoxication
something outside the scope of his employment, the proof
of serious and wilful misconduct does not bring the accident
within the scope of the employment." Weighill v. South
Heaton Coal Co. (1911), 4 B. W. C. C. 141.
A servant girl was forbidden to stand on the ledge of a
glass frame to hang out clothes in the garden. She did
stand on it and slipped, breaking one of her ribs. It was
held that the applicant was guilty of serious and wilful mis-
conduct, and she was not entitled to compensation. Beale
v. Fox (1909), 2 B. W. C. C. 467.
The owners of a factory posted a notice near an elevator
reading as follows : " No one is allowed to use this hoist except
in eharge of a load." A workman just before mealtime got
in the lift alone and a few moments later was found injured
so he died shortly afterwards from being caught between the
floor of the elevator and the top of the door. It was shown
that the employes frequently violated the rule contained in
the notice, but it appeared that this was unknown to the
employers. The employers offered no evidence as to any
danger in using the lift in violation of the notice, but rested
merely on the disobedience to defeat the dependent's claim
for compensation, on the ground of serious and wilful mis-
conduct. The House of Lords held that the employers had
not sustained the burden of showing such serious and wil-
ful misconduct as would defeat the right to compensation.
Johnson v. Marshall, Sons & Co. (1906), 94 L. T. 828; 8 W. C.
C. 10.
An applicant while employed in taking lumber away
from a band saw attempted to adjust the rolls and lost the
index and second fingers of his left hand. The employer
asserted that the accident occurred by reason of wilful mis-
conduct, that the applicant was not performing his duty,
and that he had been warned repeatedly not to tamper with
the machine. It appeared that the applicant was instructed
in English, which he did not inderstand, and the Board held
that he was performing services growing out of and incidental
486 bradbury's workmen's compensation law
Serious and wilful misconduct; intoxication
to his employment and that there was no wilful misconduct,
and he was therefore entitled to compensation. Adomitas v.
Simmons Mfg. Co., Wis. Indus. Ace. Bd., Jan. 31, 1912.
The special rules of a mine imposed upon the miner work-
ing at the coal seam bottom of the mid-working the duty of
keeping the gate which fenced the working from the shaft
closed until the cage had been brought to the level of the
working and brought to a standstill, so that it might be safely
entered from the working. The miner opened the gate be-
fore he had ascertained that the cage had been brought
to the level of the working and to a standstill. He then,
assuming the cage was there, pushed a hutch forward, which
fell down the shaft and the miner fell also and was injured.
It was found that the injury would not lead to serious and
permanent disablement, and that the miner was guilty of
serious and wilful misconduct, and therefore he was not en-
titled to compensation. George v. Glasgow Coal Co. (1908),
45 Scotch L. R. 687; 1 B. W. C. C. 239. A special rule appli-
cable to a mine pit provided that "a workman shall not per-
mit a naked light to remain * * * in such a position that it
could ignite the explosive." A miner was injured by the
explosion of gunpowder. The arbitrator held that the miner
"having permitted his naked light to remain in such a posi-
tion that it ignited the gunpowder, and having failed to es-
tablish any circumstances justifying his doing so committed
a breach of said special rule, and that therefore his injuries
were attributable to his serious wilful misconduct," and
compensation was denied. The Court of Sessions of Scot-
land, on appeal, held that this was a finding on a question
of fact and affirmed the ruling. Donnachie v. United Col-
lieries (1910), 47 Scotch L. R. 412.
A boy, in disobedience of orders, was cleaning a machine
in motion, and his right hand was drawn into the machine
and the top joint of the first and third fingers torn off. The
County Court judge held that the injury was attributable
to the serious and wilful misconduct of the workman, but
INJURIES ARISING OUT OF EMPLOYMENT 487
Serious and wilful misconduct; intoxication
that it resulted in serious and permanent disablement, and
he therefore awarded compensation. It was held on appeal
that the injury resulted in permanent disablement and that
there was evidence on which the County Court judge could
find that the disablement was serious. Hopwood v. Olive
6 Partington (1910), 3 B. W. C. C. 357.
It is serious and wilful misconduct for a workman to
deliberately meddle with new and unfamiliar machinery con-
trary to an express order given immediately before. Forster
v. Pierson (1906), 8 W. C. C. 19.
Disobedience to an order of a deputy amounting to a
breach of a general rule of a mine is serious and wilful mis-
conduct. Watson v. Butterley Co. (1902), 5 W. C. C. 51.
Where a miner was injured in crossing the shaft bottom,
which was regarded as notoriously dangerous, although there
was no special rule prohibiting miners from crossing it, it was
held that he had been guilty of wilful and serious misconduct
and was not entitled to compensation. Leishman v. William
Dixon (1910), 47 Scotch L. R. 410; 3 B. W. C. C. 560.
A boy removed a safety roller attached to a wringing
machine and was injured in consequence. He had been in
the habit of removing the roller and working without it
although cautioned not to do so. There was some rather
weak evidence that the uses of the roller had been explained
to him. It was held that the injury was not attributable
to serious and wilful misconduct. Darbon v. Gigg (1904),
7 W, C. C. 32.
A miner while on his way out of the mine was advised to
enter a manhole to allow a "journey" of cars to pass him.
He disregarded the advice and was overtaken and killed
by the cars. It was held that he was guilty of serious and
wilful misconduct. John v. Albion Coal Co. (1901), 4 W. C.
C. 15. The above entitled case was decided before the en-
actment of the Compensation Law of 1906.
The proper and safe way to proceed from a lower to a
higher level of a mine was by a ladder, although the miners
488 BRADBURY'S WORKMEN'S COMPENSATION LAW
Serious and wilful misconduct; intoxication
habitually used a sump shaft provided for raising metals.
At the time of the accident a miner was leaving by way of the
sump shaft. It was held that the accident arose out of and
in the course of the employment, and was not due to serious
and wilful misconduct. Douglas v. United Mineral Mining
Co. (1900), 2 W. C. C. 15.
Drunkenness when it occasions the injury may amount
to serious and wilful misconduct. Bradley v. Salt Union
(1906), 122 L. T. J. 302; 9 W. C. C. 31. Mounting a lad-
der while drunk, with a long piece of timber on one shoulder,
and out of bravado, was held to be serious and wilful mis-
conduct. Burrell v. Avis (1898), 1 W. C. C. 129. An injury
to an employe was caused by his intoxicated condition and
by his attempting to step around on the roof, in an endeavor
to show to his employer that he was not intoxicated, and it
was held that he was not entitled to compensation, as this
was serious and wilful misconduct within the meaning of the
Massachusetts Act. Lee v. Fidelity & Casualty Co., Mass.
Indus. Ace. Bd. It was found that the employe" was in-.
tOxicated at the time of the injury and as a result of this
intoxication he was lacking in control of and ability to man-
age himself, and that he would not have fallen and been
fatally injured except for this intoxicated condition, and
it was held that his widow was not entitled to compensation.
Truesdale v. Employers' Liability Assurance Corporation,
Mass. Indus. Ace. Bd.
An infant made a false representation to the effect that
he was of full age in order to secure employment. It did not
appear that the accident in question was attributable solely
to such misrepresentation. Subsequently having been in-
jured in the course of his employment so obtained, he signed
a release, but later tendered repayment of the money paid to
him on signing the release, and started proceedings under
the Act. It was held that the infant was not guilty of
serious and wilful misconduct, and that the release was
not a bar to the recovery of compensation. Darnley v.
INJURIES ARISING OUT OF EMPLOYMENT 489
Serious and wilful misconduct; intoxication
Canadian Pacific Ry. Co., 14 B. C. R. 15; 2 B. W. C. C.
505.
Failure to use goggles in accordance with a printed rule,
which was posted in an inconspicuous place, said rule not
being universally enforced, was held not to constitute such
serious and wilful misconduct as precluded a claim for com-
pensation. McClelland v. Massachusetts Employed Insur-
ance Association, Mass. Indus. Ace. Bd.
Where an employe1 failed to make use of certain steel guys,
while at work on a steel tower, and by reason of a sudden
and unexpected gust of wind the tower collapsed and he was
injured, it was held that this was not serious and wilful mis-
conduct as required the denial of compensation. Cochran
v. Contractors Mutual Liability Ins. Co., Mass. Indus. Ace. Bd.
A carpenter employed on the roof of a building was asked
by the foreman to descend and have some hot coffee. It was
customary to serve coffee to the men so engaged to coun-
teract the effects of the cold. The carpenter started to come
down from the roof by a rope used in hoisting materials, in-
stead of using the ladder. He lost his hold, fell to the ground
and was killed. Liability was denied by the employer, on the
ground that the deceased did not meet his death while in
the regular course of his employment, and that injury was
due to his intentional and wilful misconduct. It was held
that the workman's manner of getting off the roof did not
make his act without the course of his regular employment.
It appearing that it was not unusual for fellow employes to
descend from the roof in the same manner that the deceased
had descended, it was held that this was not intentional or
wilful misconduct within the meaning of the act and that
compensation should be awarded. Clem v. Chalmers Motor
Car Co., Mich. Indus. Ace. Bd., March, 1913.
A workman applying for work was asked if he understood
the use of saws, to which he replied that he did. He was put
to work without any agreement as to the amount of wages
which he was to receive. On the same day that he started
490 bradbury's workmen's compensation law
Serious and wilful misconduct; intoxication
to work he was injured by one of the saws. It was contended
by the employer that there was no contract of employment,
on the ground that the workman had deceived him as to his
representations that he understood the use of saws. It was
held that the workman had not been guilty of such wilful
and false representations as would make void the contract
of employment, that he was not a casual employe and that
he was entitled to compensation at at least the minimum
amount specified in the statute of $5 a week, for the number
of weeks specified in the act for the loss of a thumb and the
partial loss of the use of the first finger and the loss of the
use of the fourth finger. Mueller v. Oelkers Mfg. Co., Essex
Common Pleas, February, 1913; 36 N. J. Law J. 117.
The deceased employe was working on a carding machine.
His hand was caught in the cylinder and the gear connected
with it and badly lacerated, necessitating the amputation
of three fingers. The other injuries to the hand above the
fingers were dressed and treated, an effort being made to
save as much of the hand as possible. The workman was
taken to the hospital and while there gangrene set in and he
died. It appeared in the evidence that on each of the card-
ing machines there was one or more signs reading "Hands
Off", and also that there were signs throughout the factory
and in the carding room to the effect that "cleaning machi-
nery while in motion is strictly forbidden." It appeared
that the deceased was in the act of picking off some of the
cotton, which had collected on the card cylinder near the
gear, when he received the injury, and that such act con-
stituted a violation of the above rules. It appeared that the
signs were put on the machines because they worked auto-
matically and if there was any interference with them that
there would be a defect in the work produced; and that the
signs "Hands Off" were placed on the machines by the
manufacturers thereof. It also appeared that it was neces-
sary in the operation of the machines to pick off accumula-
tions of cotton, while the machinery was in motion and that
injuries arising out of employment 491
Serious and wilful misconduct; intoxication
the employes were expected to do this; that if they did not
do it there would be an uneveimess in the work, which im-
paired its quality. It was held, therefore, that the employe1
was not guilty of wilful and intentional misconduct and
compensation was awarded. Dr. Denton Sleeping Garment
Co. v. Redfield, Mich. Indus. Ace. Bd., Nov. 3, 1913; The In-
dicator, Nov. 5, 1913, page 442.
An applicant lost the tips of the thumb, index and second
fingers, which were removed below the first joints, as a result
of an explosion of a dynamite cap from which he was en-
deavoring to pick the contents, for the purpose of forming
a nipple for his mine lamp. The employer denied liability
on the ground that nipples were supplied to the men at a
nominal cost, that the applicant had no right to have a
dynamite cap in his possession, and that the act constituted
wilful misconduct. The board, however, held in favor of the
workman and granted compensation for ninety-two and one-
half weeks. Macieza v. Mass Consolidated Mining Co., Mich.
Indus. Ace. Bd., Oct. 15, 1913; The Indicator, Oct. 20,
1913, page 417.
The decedent became jammed between a tow line and the
corner of the cabin on a tug of the respondent, the injuries
proving fatal. The employer denied liability, on the ground
that decedent had been ordered away from the place where
he was hurt, and that he had disobeyed orders, it being con-
tended that such disobedience constituted wilful misconduct.
The Board decided in favor of the workman and awarded
compensation. Bedore v. General Ice Delivery Co., Mich.
Indus. Ace. Bd., Oct. 15, 1913; The Indicator, October 20,
1913, at page 417. .
When the whistle blew a workman started on a run for the
time clock, a distance of about 150 feet. After proceeding
about 30 feet he collided with a fellow employe, fracturing
or injuring one or more of his ribs. The employer contended
that the death was not the result of the accident and that
the workman was guilty of intentional and wilful miscon-
492 bradbury's workmen's compensation law
Serious and wilful misconduct; intoxication
duct. The Board ruled that the accident was the proxi-
mate cause of the workman's death and that, under the
circumstances, the deceased was acting in the course of
his employment when he received the injury. On this
point the Board said: "He was required to proceed from
his bench to the tjme clock and to punch the time clock be-
fore leaving the room in which he was working. This was
a duty imposed upon him by his employer, and he was in
the act of performing that duty at the time he received the
injury. We are also of the opinion that the injury arose out
of his employment, within the meaning of Act 10, Public
Acts of 1912. The evidence fairly shows that it was custom-
ary for the men to run for the time clock when the whistle
blew and crowding and collisions resulted and were likely
to result. Did the action of deceased in running toward the
time clock amount to intentional and wilful misconduct
within the meaning of the compensation Law? The evidence
shows that respondent had forbidden such running by rule,
but it was also shown that such rule was not enforced.
Rayner's immediate foreman acknowledged that the rule
against running was not enforced. The mere fact that a
rule was made forbidding running to the time clock is not
controlling when its general violation is acquiesced in by
the employer. The action of Mr. Rayner in running to
the clock did not differ materially from the action of the
considerable number of other employes. It did not amount
to intentional and wilful misconduct." Rayner v. Sligh
Furniture Co., Mich. Indus. Ace. Bd., June, 1913.
A workman was injured while oiling machinery, by placing
his hand on certain gears. A large piece of flesh was removed
from the third finger of the left hand. The employer ob-
jected to paying compensation on the ground that there
had been a violation of shop rules and also on the ground
of wilful negligence of the employe1. Compensation was
awarded. Goble v. Continental Motor Car Co., Dec. of Mich.
Arbitration Committee, Dec. 18, 1912.
INJURIES AKISING OUT OF EMPLOYMENT 493
Disobedience of specific orders
C. L. Belknap was killed on November 27, 1912. Death
claim of $5,000 in weekly payments of $32.05 was disputed
by defendant on the ground of deceased's wilful misconduct
in violation of orders. Amount named awarded widow.
The claim of wilful misconduct was based on the ground that
deceased was the foreman who had charge of the work of
unloading piles from a railroad car, and used his discretion
in unloading without the use of ropes which were ordered by
employer. The evidence showed that this condition had
prevailed for between one and two weeks prior to the em-
ployees death, and while the superintendent was in the vicinity
of the work. Held that orders issued must be enforced and
that the fatality was not caused by wilful misconduct.
Belknap v. Mervy-Elwell Co., Cal. Indus. Ace. Bd., May 27,
1913.
A finding of serious and wilful misconduct is a finding of
fact not of law. Donnachie v. United Collieries (1910), 47
Scotch L. R. 412. The finding of the Industrial Commis-
sion under the Wisconsin Workmen's Compensation Act
that the death of an employe1 was not caused by his wilful
misconduct is conclusive where, under the evidence, it might
have found that he did not intentionally become dangerously
or helplessly intoxicated. Nekoosa-Edwards Paper Co. v.
Industrial Commission, 000 Wis. 000; 141 N. W. Rep. 1013.
18. Disobedience of specific orders.1
This subdivision is closely related to the preceding one.
Disobedience of specific orders may amount to serious and
wilful misconduct. That phase of the subject is discussed
in the preceding paragraph. Again such disobedience may
so remove the workman from the sphere of his duties that
it may be said that he is not performing any of the duties
for which he was employed, if an injury occurs while the dis-
obedience continues. This latter phase of the subject is
discussed in the present subdivision. It seems that a work-
1 See next preceding numbered paragraph.
494 bradbury's workmen's compensation law
Disobedience of specific orders
man who is injured while doing something which he has
been absolutely forbidden to do cannot be said to be injured
while in the course of his employment. Whitehead v. Reader
(1901), 3 W. C. C. 40. Compensation was awarded in the
last-mentioned case, however, it being held that the facts
did not bring it within the rule stated. A workman, who
was sharpening tftols on a grindstone, which was run by
steam power, attempted to replace a belt, which had come
off. In doing this he was injured. It was contended that he
had been instructed not to interfere with the machinery in
any way, his duties being merely to sharpen tools. It was
held, however, that this was not such a breach of his orders as
to remove the workman from the sphere of his employment.
A servant, although in a place where his duty requires
him to be, may, nevertheless, so conduct himself at the time
of the injury as to be outside the scope of his employment,
so as to relieve the master from liability. (E. L.) Williamson
v. Berlin Mills Co., 190 Fed. R. 1. Thus a shop boy, whose
duty it was to turn a lever on a punching machine and to
perform other such minor services, one day, while the punch-
ing machine was not running, attempted to turn the lever,
or handle, on a rolling machine, with which he had nothing
to do, and while making the attempt his left foot slipped be-
tween the rollers and he was badly injured. It appeared
from the testimony that the claimant had been ordered on
a number of occasions not to turn the lever on the rolling
machine and that it was no part of his duty to do anything
in connection with the rolling machine at all. It was held
that the injury did not arise out of the employment and
compensation was refused. Re Victorino Morales, Op. Sol.
Dep. C. & L., page 230.
A railroad flagman who goes to sleep on the track is not
in the discharge of his duty and is, in effect, a trespasser, and
the company owes him no duty other than not to run over
him after discovering his peril. (E. L.) Louisville & N. R.
Co. v. Holland, 51 So. Rep. 365; 000 Ala. 000.
INJURIES ARISING OUT OF EMPLOYMENT 495
Disobedience of specific orders
Applicant's husband, a street car conductor, was killed
by falling from the front platform and under the wheels.
He had been prohibited from taking the motorman's place
by instructions and by the company's rules, which had been
enforced rigidly, by disciplining those who disregarded the
rules. The evidence showed that the deceased, after the
trolley had been changed at the end of the run, took the
motorman's place, ran the car several hundred feet and,
upon striking a curve, the car left the rails and the conductor
was thrown from the platform and under the car. It was
held that the conductor, at the time of the accident, was not
performing services growing out of and incidental to his
employment and his dependents were therefore not entitled
to compensation. Neumann v. Milwaukee Railway and
Light Co., Wis. Indus. Ace. Bd., May 2, 1912.
A workman was expressly forbidden to go into a trench
eleven feet deep. To take shelter from the rain and to get
more flints, for which he was paid according to the number
of flints dug out, he went into the trench and was smothered
by a fall of earth. It was held that the accident did not
arise out of and in the course of. the employment and com-
pensation was refused. Parker v. Hambrook (1912), 5 B. W.
C. C. 608. .
A miner going from one part of a mine to another rode on
the coupling between two cars, in breach of the rules of the
colliery. His head was -knocked against the roof and he died
from the injuries received. It was held that the accident did
not arise out of the employment and compensation was re-
fused. Powellv. Bryndu Colliery Co. (1911), 5 B. W. C. C. 124.
A baker in a steam bakery required to have an engine
started in order to mix the dough he had prepared. The
man in charge of the engine being absent, the baker started
the engine himself. He had often done so before, although
he had been forbidden to do so. Being caught in the ma-
chinery he was killed. It was held that the baker was not
employed to touch the engine at all and that the accident
496 bradbxjry's workmen's compensation law
Disobedience of specific orders
did not arise out of the employment, and consequently
compensation should be refused. Marriott v. Brett & Beney
(1911), 5 B. W. C. C. 145.
A brakeman whose duty it was to walk behind cars ready
to apply the brakes when directed to do so by the driver,
rode on the car beside the driver in disobedience of a rule
of which he was ftilly aware. In jumping off to apply the
brakes he fell and was injured. It was held that the accident
did not arise out of the employment and compensation was
refused. Revie v. Cumming (1911), 5 B. W. C. C. 483.
A miner who was riding in a tub against the rules of the
colliery, was killed by his head coming in contact with the
roof. It appeared that the miners often did so ride, but they
knew that such action was forbidden and they never did so
when any one in authority could see them. There was no
evidence that the employer had ever permitted or "winked
at" the practice. It was held that the accident did not arise
out of the employment and compensation was refused.
(House of Lords) Barnes v. Nunnery Colliery Co. (1911),
5 B. W. C. C. 195, aff'g (1910), 4 B. W. C. C. 43.
A brusher in a mine, who had finished his work for the day,
jumped on a hutch in order to ride to the pit bottom. On
the way he was knocked off the hutch by his head coming
in contact with two crowns which were below the ordinary
pit level, and was injured. A special rule, of which the in-
jured man was cognizant, forbade miners from riding on
the hutches. It was held that the accident did not arise out
of the employment. Kane v. Merry & Cuninghame (1911),
48 Scotch L. R. 430; 4 B. W. C. C. 379. The rules of a pit
provided that explosives capable only of being fired by deto-
nators should be used; that the detonators should be se-
curely kept and issued only to shot-firers; and that every
shot should be fired by a competent person appointed in
writing to perform the duty. On the occasion in question,
after the shot-firer had left the pit, a miner, who had a det-
onator in his possession which however, he had not re-
INJURIES ARISING OtTT OF EMPLOYMENT 497
Disobedience of specific orders
ceived from the shot-firer, started to fire a shot. This was
not his duty and was in direct opposition to orders. In the
course of the operation an explosion occurred whereby he
was killed. It was held that the accident did not arise out
of and in the course of the employment. Kerr v. William
Baird & Co. (1911), 48 Scotch L. R. 646; 4B.WC. C. 397.
A message boy, who was employed in delivering fish at a
kitchen situated on the third floor of an infirmary, was in-
jured while making his way from the ground floor by means
of a hoist. There was a notice at the side of the hoist to the
effect that it was only to be used by servants of the insti-
tution, and worked only by those specially anthorized by
the directors, but it was not proved that the boy had read
the notice, or had his attention directed to it, though it was
proved that he had been cautioned against using the hoist.
It was held that the accident did not arise out of and in
the course of his employment. M'Daid v. Steel (1911), 48
Scotch L. R. 765; 4 B. W. C. C. 412. A miner was warned
by a fireman not to remain at work at a certain place, as
blasting operations were about to commence. He left the
place and went to work some distance away. Here he re-
mained at least an hour. Blasting operations commenced
and subsequently the workman was found dead among the
debris. There was no evidence as to how he got there. The
arbitrator found that the injury did not arise in the course
of his employment. It was held that there was evidence to
support the finding. Traynor v. Robert Addie & Sons (1910),
48 Scotch L. R. 820; 4 B. W. C. C. 357.
' A workman in a power house dusted the switchboard. It
was no part of his duty, and he was expressly forbidden to do
so. In doing this he fell against the live gear, and sustained
injuries. It was held that the accident did not arise out
of the employment. Jenkinson v. Harrison, Ainslie & Co.
(1911), 4 B. W. C. C. 194. A boy was employed to hand balls
of clay in molds to a molder, and was told not to touch the
machinery. Having nothing to do for the moment, he at-
32
498 bradbury's workmen's compensation law
Disobedience of specific orders
tempted to clean the machinery and was thereby injured. It
was held that the accident did not arise out of the employ-
ment. Lowe v. Pearson (1899), 79 L. T. 654; 1 W. C. C. 5.
A workman employed in a coal mine as a drawer, was
working in a level from which an "upset" was being driven.
On the day of the accident the fireman discovered an out-
break of gas in the "upset", and accordingly placed a board
across the entrance, chalking upon it, "No road up here."
Such a board or fence was the usual mode of warning per-
sons that it was dangerous to enter the place so fenced. The
workman understood what the putting up of the board
meant, and that it was dangerous to work in the "upset."
He required a pick, and knowing that one had been left in
the upset, he went to get it and passed over or under the
fence with a naked light in his cap. An explosion took place
and he was killed. It was held that the accident arose out
of the employment. Conway and another v. Pumpherston
Oil Co. (1911), 48 Scotch L. R. 632; 4 B. W. C. C. 392. The
court followed the case of Whitehead v. Reader (1901), 2 K.
B. 48, where the following rule is laid down: "I agree in what
has already been pointed out, that it is not every breach of
a master's orders that would have the effect of terminating
the servant's employment so. as to excuse the master from
the consequences of the breach of his orders. We have to
get back to the orders emanating from the master to see
what is the sphere of employment of the workman, and it
must be competent to the master to limit that sphere. If
the servant acting within the sphere of his employment
violates the order of his master, the latter is responsible. It
is, however, obvious that a workman cannot travel out of the
sphere of his employment without the order of his employer
to do so; and if he does travel out of the sphere of his em-
ployment without such an order, his acts do not make the
master liable either to the workman under the Workmen's
Compensation Act, 1897, or to third persons at common law."
A collier was sent to drill a hole from above into a seam,
INJURIES ARISING OUT OF EMPLOYMENT 499
Disobedience of specific orders
in order to draw off gases and render the seam safe. The
seam itself was marked off as forbidden meanwhile. The
man asked if he might go into the seam to see if the drill was
running straight, and was told that he must not. He, never-
theless, went and was suffocated. It was held that there was
evidence to support the finding of the County Court judge,
that the accident arose out of and in the course of the em-
ployment. Harding v. Brynddu Colliery Co. (1911), 2 K.
B. 747; 4 B. W. C. C. 269.
A ship's engineer in an intensely cold place rigged up a
temporary stove to warm his cabin. He was seen using it
in the daytime by a superior officer, who told him that it
was dangerous and warned him not to use it at night. He
did use it at night, and was asphyxiated. The County Court
judge found that some heating was reasonably necessary,
and that the accident arose out of the employment and
awarded compenstion. It was held on appeal that there
was evidence to support the finding. Edmunds v. S. S.
"Peterston" (1911), 5 B. W. C. C. 157.
A quarryman was ramming a cartridge preparatory to
blasting. The cartridge exploded prematurely and injured
him. The employers contended that the workman was
acting outside the scope of his employment, in breach of
certain special rules as to shot firing. The rules, in fact,
only related to the firing of shots, and not to loading. The
explosion occurred while loading. It was held that the ac-
cident arose out of the employment and compensation was
awarded. Joyce v. Wellingborough Iron Co. (1911), 5 B. W.
C. C. 126.
A groom was thrown from a horse which he was exercising.
There was some evidence that he had been told to lead but
not to ride the horse. The horse threw him and he lost the
sight of one eye and suffered other injuries. It was held that
the accident arose out of and in the course of the employment
and compensation was awarded. Wright v. Scott (1912),
5 B. W. C. C. 431.
500 bradbury's workmen's compensation law
Acting on unauthorized orders
19. Acting on unauthorized orders.
An accident which occurs while a man is complying with
an order which, although he knows or ought to know he
need not obey, because it is against the rules, but which is
given to him by one from whom he received his orders, may,
nevertheless, be an accident arising out of and in the course
of the employment Statham v. Galloways Limited, 2 W.
C. C. 149.
A boy thirteen years of age, whose duty was to do all sorts
of things under the direction of a foreman, was untruthfully
told by another man that the foreman said he was to do cer-
tain work, and the boy did it, in the course of which he was
injured, and it was held that the accident arose out of and
in the course of his employment. Brown v. Scott (1899),
1 W. C. C, 11.
A cinder pit man, who was acting as hostler's helper in
running a yard engine, falsely stated to decedent, his co-
employe1, that the general foreman told him to direct decedent
to act in his place while he took charge of the engine. This
representation was untrue, as no such direction had been
given. It was held that responsibility for the death of the
decedent could not be attached to the railroad company
because the decedent had acted on such statement. (E. L.)
Southern Ry. Co. in Kentucky v. Pope's Adm'r, 119 S. W.
Rep. 237; 133 Ky. 835.
Where a servant is injured in obeying his superintendent's
orders and it does not appear that the servant knew that
the service was intended for the superintendent's personal
benefit, an instruction relieving the master from liability,
on the ground that plaintiff's injury occurred while not
engaged about the master's business, is properly refused.
(E. L.) Sims v. Omaha K. C. & E. Ry. Co., 89 Mo. App. 197.
A minor, employed by the proprietor of a newspaper as a
carrier, worked under the foreman of the distribution de-
partment, who had nothing to do with the machinery. The
foreman ordered the minor to remove papers from a folding
INJURIES ARISING OUT OF EMPLOYMENT 501
Acting in an emergency-
machine, in doing which he was injured. It was held he
was a volunteer and the master was not liable. (E. L.)
Hatfieldv. Adams, 96 S. W. Rep. 583; 29 Ky. Law Rep. 880.
20. Acting in an emergency.
Where one renders aid to the servant of another at the
request of the servant and under circumstances which
create a necessity for aid, the person rendering aid becomes
an emergency employe of the servant's master. (E. L.)
Cannon v. Fargo, 138 App. Div. 20; 122 Supp. 576; (E. L»)
Marks v. Rochester By. Co., 41 App. Div. 66; 58 Supp.
210; (E. L.) Geibel v. Elwell, 19 App. Div. 285; 46 Supp.
76. There is, however, a good deal of conflict on this point
in the various States. See 26 Cyc. 1287.
It is an employe's implied duty to exercise reasonable care
to preserve from injury his employer's property, and in an
effort to that end he is not a mere volunteer. (E. L.) United
States Cement Co. v. Koch, 85 N. E. Rep. 490; 42 Ind. App,
251. Where a freight train approached a down-grade, and
it was necessary for some member of the crew to ride on the
cars so as to control their speed, and the brakeman, when
ordered to do so, refused, it was held that an emergency
arose, which compelled the conductor to undertake the task
himself, and he was not acting outside the line of his duty
when so doing, where it entailed no neglect of his duties as
conductor. (E. L.) Yongue v. St. Louis & S. F. R. Co., 112
S. W. Rep. 985; 133 Mo. App. 141. A foreman over a gang
of men digging a trench for a sewer, after a severe thunder
shower, went to inspect an electric light wire, which had
broken and dropped on the crane and other portions of the
apparatus being used in the work of excavation. He walked
toward the pole to trace the wire along the street to find out
whether or not it was a live wire. He stopped near the pole,
staggered and fell over dead. It was found that his death
was due to an electric shock. It was held that his death was
due to an injury arising out of and in the course of his em-
502 bradbury's workmen's compensation law
Acting in an emergency
ployment and compensation was awarded to his widow.
Houghton v. W. G. Root Construction Co., 35 N. L. Law J.,
332. Where the plaintiff, a minor, employed to drive an en-
try in a mine, was injured while assisting a co-employe in
propping a dangerous portion of the roof which the defend-
ants, although notified, had failed to prop, and such pre-
caution was immediately necessary in order that the work
which the plaintiff was employed to do might be continued,
it was held that the plaintiff was acting within the scope of
his employment at the time of his injury. (E. L.) Ballou v.
Potter, 106 S. W. Rep. 1178; 32 Ky. Law Rep. 779.
One who, at the request of a conductor of a freight train,
in an emergency, temporarily assists in the work of unlock-
ing a safe, is for the time being, a servant of the railroad
company and entitled to the same protection as any other
servant. (E. L.) St. Louis & S. F. Ry. Co. v. Bagwell, 124 Pac.
R. 320; 33 Okla. 189. Where a driver of a delivery wagon,
being unfamiliar with the route, asked a boy to go with him
and show him the way, it was held that the boy became an
emergency servant and a fellow-servant of the driver. (E. L.)
Gunderson v. Eastern Brewing Co., 71 Misc. 519; 130 Supp.
785.
The claimant was employed as a fireman in the Fire De-
partment of the civil administration under the Isthmian
Canal Commission, and while assisting as a pipe man in an
effort to extinguish a fire which had broken out in a building
situated in Colon, he was injured. It was conceded that the
man when injured was without the limits of the Canal Zone.
It was held, that the man had been employed in an emergency
and the fact that the injury occurred outside the territory
under the control of the United States, in view of the cir-
cumstances stated, was not sufficient to exclude him from the
operation of the Act, and compensation was awarded. Re
James Nellis, Op. Sol. Dep. C. & L. page 221.
A boy was employed to grease the wheels and axles of
railway trucks. While waiting for trucks to come up he
INJURIES ARISING OUT OF EMPLOYMENT 503
Acting in an emergency
thought the switch was against the engine, and began to
pull the lever in order to open it and was injured. It was
held that there was evidence of an accident arising out of
and in the course of his employment. Harrison v. Whitaker
Bros., 2 W. C. C. 12.
A workman was employed by a lion tamer to look after the
baggage, clean out lion cages, and generally make himself
useful, but it was no part of his duty to feed lions. One
afternoon the workman was left in sole charge of the cages
of lions, with orders to see that no harm came to them, or
to anyone else, by reason of their fierceness. One of the lions
got out of a cage and into a dressing room, but there was no
evidence to show how it happened. The workman went
into the dressing room and tried to drive the lion back into
the cage, when the lion turned on him and killed him. It
was held that as the deceased had been left in charge, it was
his duty to get the lion back into the cage, and that as he
was killed in the discharge of his duty, the accident arose
out of and in the course of his employment. Hapelman v.
Poole (1908), 25 T, L. R. 155; 2 B. W. C. C. 48.
Authority for a servant to act on an emergency in his
master's interest may be implied. Where a workman was
injured in attempting to stop his master's runaway horse,
it was held that the accident arose out of and in the course
of the employment, although his work was wholly uncon-
nected with the horses. Rees v. Thomas (1899), 80 L. T.
578; 1 W. C. C. 9.
A man employed by the owner of a canal boat, as driver,
who was forbidden by his employer to take part in the steer-
ing or management of the boat, was drowned while engaged
in steering. A boatman, who had been temporarily in charge
of the horse, had deserted a short time before the accident,
and the other boatman, who was also master of the boat,
then decided to drive, telling the deceased at the same time
to steer. It was held that no emergency had arisen which
justified the deceased in violating the orders of his employer
504 bradbury's workmen's compensation law
Acting in an emergency
in steering the boat, and that therefore the accident did not
arise out of and in the course of the employment. Whelan v.
Moore (1909), 43 Irish L. T. 205; 2 B. W. C. C. 114.
Where a conductor was injured while operating a car on
which he was not the conductor, and he was operating the
car merely for th^motorman's accommodation, it was held
that he was not an emergency employe and could not recover
for injuries received. (E. L.) Central Kentucky Traction Co.
v. Miller, 153 S. W. Rep. 750; 147 Ky. 110.
An employe left a place of employment, which was not
dangerous, to stop a runaway car passing on a side track,
and in doing so, closed a switch, which had been left open to
prevent cars running on to the main track, and while in
pursuit of the car on the main track he was injured by a
second runaway car. He had no duty to perform about
such car, or its operation, and acted without request or di-
rection. It was held that no recovery could be had, although
the car ran away because of a defective track, as the prox-
imate cause of the injury was the servant's voluntary act.
(E. L.) McGill v. Maine & N. H. Granitg Co., 46 Atl. Rep.
684; 70 N. H. 125.
Intestate's brother was employed by the defendant rail-
road company to operate a pumping station, but during
such employment procured voluntary assistance of intestate,
who aided the brother, with defendant's knowledge and
consent, and during the performance of such work the in-
testate was killed. It was held that in the absence of proof
of an emergency or a necessity for the intestate's employment
or that his brother had any authority to engage an assistant,
the relation of master and servant did not exist between the
defendant and the intestate. (E. L.) Grissom v. Atlanta &
B. Air Line Ry., 44 So. Rep. 661; 152 Ala. 110.
Where one of two butcher boys on a wagon fell off and was
injured, a stranger who witnessed the accident volunteered
to get on the wagon and take care of the boy while he was
being carried home. She accordingly got on the wagon and
INJURIES ARISING OUT OF EMPLOYMENT 505
Assaults. Injuries caused by third persons
while it was being driven to the boy's home she fell off and
was injured. An attempt was made to hold the master
liable for the act of the volunteer, on the ground that the
other employe1 had implied authority to hire this volunteer
in this emergency. The court, however, held that there was
no such implied authority and denied compensation. Hough-
ton v. Pilkington, 107 L. T. Rep. 235; The Policyholder,
Nov. 16, 1912, page 768.
21. Saving life of another.
An accident occurring while an employe1 was making an
attempt to save the life of a fellow workman was held to
arise out of and in the course of the employment. Matthews
v. Bedworth (1899), 1 W. C. C. 124.
22. Assaults. Injuries caused by third persons.
Cases of assault have not been decided uniformly. The
authorities are cited below, but no "general rules of anything
like universal applications can be deduced from them. On
principle, the better rule seems to be that an assault which
has no connection with the work in which the employe is
engaged does not entitle the workman to compensation.
On the other hand justice appears clearly to have been ac-
complished in awarding compensation in those cases where
robbery was the motive of the assault, or where it was com-
mitted to prevent an employe1 from performing his duties.
Thus a cashier employed regularly to carry wages by train
to a colliery was shot by a stranger in the course of the
journey and the wages were stolen. It was held that his
death was caused by an accident and that the accident arose
out of and in the course of his employment. Nisbet v. Rayne
& Burn (1910), 2 K. B. 689; 3 B. W. C. C. 507. A night
watchman on the premises of his employer, who while in the
discharge of his duties was shot by a burglar, from the effects
of which he died, was held to have been killed in the course
of his employment and that.his dependents were entitled to
506 bradbury's workmen's compensation law
Assaults. Injuries caused by third persons
compensation. Re Margaret Evans, Claim No. 4204, Ohio
Indus. Ace. Bd., May 29th, 1913. A street car conductor
injured by the assault of a disorderly passenger while the
conductor is attempting to compel the passenger to obey
the company's rules, is entitled to compensation, as the in-
jury arises out of^the employment. Ruling of Washington
Industrial Commission, First Annual Rep., page 476.
Applicant was conducting a hotel at Floriston, California.
Late one evening he ejected two intoxicated men who desired
entry to the hotel. Force was used and applicant broke the
long bone of the middle finger of his right hand, dislocated
certain joints of the other fingers, and strained or otherwise
lamed his left hand, with the result that his right hand is
rather seriously crippled. Held that the applicant clearly
established the fact that he was injured while performing
a service growing out of and incidental to his employment,
but that he failed to establish as a fact, that in striking one
of the intruders for the use of an abusive epithet he was
acting within the line of his duty to his employer, and con-
sequently compensation was denied. It was further held
that it was applicant's duty to use no more force than was
necessary to accomplish the end desired. Weston v. Crown
Columbia Paper Co., Cal. Indus. Ace. Bd., Dec. 3, 1913.
A gamekeeper, while in the discharge of his duties, was
attacked by poachers and injured. It was held that this
was a personal injury by accident. Anderson v. Balfour
(1910), 44 Irish L. T. 168; 3 B. W. C. C. 588.
In Massachusetts it has been held that an assault by a
drunken co-efnploy6, " who was in the habit of drinking to
intoxication, and when intoxicated was quarrelsome and
dangerous, and unsafe to be permitted to work with his
fellow employes, all of which was known to the superintend-
ent " of the employer, was an injury arising out of and in the
course of the claimant's employment when the assault was
committed while the claimant was working at his regular
duties. McNichol v. Patterson, Wilde & Co, and Employers'
INJURIES ARISING OUT OF EMPLOYMENT 507
Assaults. Injuries caused by third persons
■Liability Assur. Corp. Lim., 215 Mass. 000; 102 N. E. Rep.
697. The Massachusetts Act does not contain the word
"accident" so it was unnecessary to determine whether or
not it Was an "accidental" injury.
The Massachusetts Industrial Accident Board has held
that a bartender, who was stabbed by an irate customer,
because of the bartender's refusal to serve him with any
more drinks, was entitled to compensation. (The decision
is not reported.)
An injury to an engine driver in being hit by a stone
thrown by boys from an overhead bridge is an accident
arising out of the employment. Challis v. London & South
Western Ry. Co. (1905), 7 W. C. C. 23.
A recent newspaper report states that the Washington
Commission awarded compensation to an employe" who was
shot in the eye by a boy with an air gun.
An employe1 while at work as a journeyman carpenter was
killed by the fall of a bar ofmetal from an upper story,
caused by a workman of an independent contractor on the
same building, and it was held that the death arose out of
and in the course of the employment within the meaning
of the New Jersey Workmen's Compensation Act. Bryant
v. Fissell, 000 N. J. Law 000; 86 Atl. Rep. 458.
A workman was employed to assist in loading and un-
loading wagons and also to assist in and about the care of
the wagons. He was requested by his employer to grease a
wheel of one of the wagons. While complying with this
request and standing in front of the employer's store the
wagon on which he was engaged was struck by a truck
driven by the employe of a third person, and the employe"
received injuries which disabled him for ten weeks. Sub-
sequently he made a claim against the employer owning the
truck and that claim was settled. He then made a claim
against his immediate employer for compensation.. It was
held that the injury arose out of the employment and also
that the settlement with a third person did not bar the
508 bradbury's workmen's compensation law
Assaults. Injuries caused by third persons
claim for compensation. Perlsburg v. Mutter, Essex Common
Pleas, 35 N. J. Law J. 202.
The fact that an injury is caused by a fellow workman
who has violated the Factory Act, and upon whom a fine
has been inflicted because of such violation, is no reason
for denying compensation to the employe" who has been
injured. Gibson v. Dunkerky Brothers (1910), 3 B. W. C. C-
345.
An employe" who, without negligence or misconduct on
his part, is struck by his foreman in a fit of anger, and had
his arm broken, is injured in the course of his employment.
Re Cornelius Flemmings, Op. Sol. Dep. C. & L., p. 187.
In the last mentioned case it was pointed out that under the
English act which requires that the injury must arise out
of and in the course of the employment, assault of this kind
would not be covered, but the Solicitor distinguished the
English statute from the Federal Compensation Act, stat-
ing that the latter injury shall be caused "in the course of
the employment" and that it need not necessarily "arise
out of" the employment.
A foreman whose duty it was to enforce discipline was in-
jured while going to stop a fight between two of his men
and it was held that the injury occurred in the course of the
employment and he was entitled to compensation. Re
William Wharton, Op. Sol. Dep. C. & L., p. 250.
A shovel engineer and a negro brakeman became involved
in an altercation, and the negro attacked the engineer with
an iron bar and finally struck him on the head. The claimant
seeing the engineer's life in danger, got down from the shovel
to defend him and when he struck the negro in the teeth with
his fist the back of his hand was badly bruised and lacerated
and shortly thereafter became infected. It was held that no
service of the master was being performed and it might be
said that for the time being the relation of master and serv-
ant had been severed; that the claimant had got out of the
scope of his employment in taking part in the fight and he
INJURIES ARISING OUT OF EMPLOYMENT 509
Assaults. Injuries caused by third persons
assumed the risks incidental thereto and therefore compensa-
tion was denied. Re G. M. Armstead, Op. Sol. Dep. C. & L.,
p. 240.
A workman who is injured as the result of an encounter
with another workman, following a quarrel, is not entitled to
compensation, as the injury does not arise out of and in the
course of the employment. Gorman v. Fidelity & Casualty
Co., Mass. Indus. Ace. Bd.
One employe1 for no apparent reason pushed another
against a moving rope. The latter involuntarily swung up
one hand in which he held a hammer, to prevent falling,
and hit the workman, who had shoved him, over the eye
and injured him so badly that he lost the sight of the eye.
Compensation was refused on the ground that the injury
did not arise out of the employment. Shaw v. Wigan Coal
& Iron Co. (1909), 3 B. W. C. C. 81.
A workman was struck in the eye by a piece of iron mali-
ciously thrown by another workman at a third employe, and
it was held that the accident did not arise out of the employ-
ment. Armitage v. Lancashire & Yorkshire By. Co. (1902),
86 L. T. 883; 4 W. C. C. 5.
One of two boys was injured in avoiding a handful of
rubbish which was thrown at him by another boy, and it
was held that the accident did not arise out of the employ-
ment. William Baird Co. v. Burley (1908), 45 Scotch L. R.
416; 1 B. W. C. C. 7.
Where a customer in a hotel went into the kitchen, where
he had no business to be and made a rush at the cook, who,
in trying to avoid him, put her arm through a glass door and
was seriously hurt, it was held that this was not an accident
to the cook arising out of the employment. Murphy v.
Berwick (1909), 43 Irish L. T. 126; 2 B. W. C. C. 103.
Strikebreakers who are employed during a strike, and
who are assaulted by striking workmen and injured are not
entitled to compensation, as this is not an accident within
the meaning of the compensation act, nor does the injury
510 bradbury's workmen's compensation law
Assaults. Injuries caused by third persons
arise out of the employment. Murray v. Denholm & Co.
(1911), 48 Sc. L. R. 896; 5 B. W. C. C. 496. In the last-
mentioned' case it was said that the act of assaulting the
strikebreakers was a crime and not an accident.
A storekeeper agreed with his employers to work as a
carter during a strike of carters and drivers, and the em-
ployers agreed to^ compensate him for any injury he might
receive from the strikers. On going home to lunch he was
assaulted, injured and incapacitated by the strikers. Upon
making a claim for compensation it was held that although
the agreement gave him a good cause of action at common
law, it did not enlarge his rights under the compensation
action so as to cover the time after he left off work, and that
therefore the accident did not arise out of the employment.
Poulton v. Kelsall (1912), 5 B. W. C. C. 318.
An errand boy while at work was attacked with a hatchet
by his employer who was subject to fits of melancholia and
had been in an asylum. It was held that this was not an
accident and it did not arise out of the employment and com-
pensation was refused. Blake v. Head (1912), 5 B. W. C: C.
303. In the last-mentioned case, Buckley, L. J., remarked:
"A felonious act done by the employer cannot by any pos-
sible straining of language be called an accident arising out
of and in the course of the employment."
A recent newspaper account states that the Washington
Commission denied compensation to an employ^ who was
assaulted by his employer.
A steamship was lying in the Harbor of Pernambuco,
Brazil, on September 30, 1911, while a revolution was in
progress in the town. By reason of the disturbance and the
difficulty in discharging the cargo the stay of the steamship
was very- much prolonged. A member of the crew was on
the deck on watch at night, while firing was going on in the
town, and he was hit by a stray bullet. It was held that the
connection between the accident and the employment was
too remote to come within the Act, and that the injury did
INJURIES ARISING OUT OF EMPLOYMENT 51 1
Playing practical jokes
not arise out of the employment. McShane v. Harrison,
The Policy Holder, April 10, 1913, p. 296.
23. Playing practical jokes.
A driver's helper, whose duty it was to take care of the
horses was tramped upon by the horses in the stable and so
badly injured that he subsequently died. There were con-
flicting reports as to how the accident happened. One re-
port stated that the injured employe and another "were
having a friendly tussle" in the stall of the horses and were
pushing each other when Craig (the injured employ^) slipped
and fell under the horse. The horse then stepped on him,
injuring him. Upon investigation, however, by the Board,
the man who had made the above statement could not be
found, and it appeared from other testimony that the injured
man was alone in the stall when the horse tramped upon
him. The Board, in awarding compensation said: "If we
were thoroughly convinced of the truthfulness of the first
statement made by Frey (the witness who disappeared),
we would consider it our duty to deny compensation, for the
reason that if employes engaged in a common employment
temporarily suspend their regular work for the purpose of
engaging in "a friendly tussle" and thereby sustain injury,
such injury cannot be said to be incurred in the course of
employment. But we can understand how the injury might
easily have occurred while the injured workman was engaged
in his employment, and without any fault on his part, though
it might have been occasioned by the pranks of Frederick
Frey." Re Eva Isabelle Craig, Claim No. 2208, Ohio In-
dus. Ace. Bd., Mar. 21, 1913.
A boy, set to clean a machine at rest, was larking with
another boy, and accidentally started the machine, thereby
injuring himself. It was held that the accident did not arise
out of the employment. Cole v. Evans, Son, Lescher & Webb
(1911), 4 B. W. C. C. 138; following Furniss v. Gartside &
Co. (1910), 3 B. W. C. C. 411. A domestic servant while en-
512 bradbtjry's workmen's compensation law
Bite of animal'
gaged in the performance of her duties was struck on the
eye by a child's ball playfully thrown at her by a fellow-
servant, the child's nurse, with the result that she almost
completely lost the sight of the eye. It was held that the
accident did not arise out of the employment within the
meaning of § 1 (1) of the Act of 1906. Wilson v. Laing
(1909), 46 Scotch L. R. 843; 2 B. W. C. C. 118. Some work-
men, as a practical joke, put the hook of their employers'
crane, which they were working, through the neckcloth of
a fellow workman who was at the time engaged in his work
on his employers' wharf, and commenced to draw him up
through the warehouse. The man held the chains with his
hands as long as he could, but eventually had to let go his
hold, and fell a considerable distance and was seriously in-
jured. It was held that the injury did not arise out of the
employment. Fitzgerald v. Clarke & Son (1908), 99 L. T.
101; 1 B. W. C. C. 197. Where one workman, in the spirit
of horseplay had placed another in a very dangerous situa-
tion, and a third workman going to his rescue, was seriously
injured, it was held that the workman who took the risk,
was not injured while performing any of the duty owing to
his employers and that therefore the injury did not arise out
of and in the course of the employment. Mullen v. D. Y.
Stewart & Co. (1908), 45 Scotch L. R. 729; 1 B. W. C. C. 204.
The applicant for compensation, one Shaw, had for no
apparent reason pushed another workman named Dilworth
against a moving rope. Dilworth involuntarily swung up
one hand, in which he held a hammer, to prevent falling
over the moving rope, and this hammer hit the applicant
over the eye and injured him so badly that he lost the sight
of the eye. It was held that the accident did not arise out
of the employment. Shaw v. Wigan Coal & Iron Co. (1909),
3 B. W. C. C. 81.
24. Bite of animal.
A workman has been held to have suffered an accidental
INJURIES ARISING OUT OF EMPLOYMENT 513
Bite of animal
injury which entitled him to compensation by the bite or
attack of an animal. Hapelman v. Poole (1908), 25 T. L. R.
155; 2 B. W. C. C. 48.
A workman was taking his mid-day meal in his employer's
stable, when he was bitten by one of the stable cats. The
bite resulted in blood poisdhing and it became necessary to
amputate some of the fingers. It was held that the accident
arose out of and in the course of the employment. Rowland
v. Wright (1908), 1 B. W. C. C. 192.
The claimant was in a canal cut attending to the duties
of his position as powder foreman, when a mad dog came
running through the cut and bit him on the calf of the leg.
It was held that the injury occurred in the course of the em-
ployment and that the claimant was entitled to compensa-
tion. Re E. E. Bailey, Op. Sol. Dep. C. & L., p. 232.
A workman was engaged in delivering beer to the cus-
tomers of his employer, and the place of residence of one of
the employers was located in a portion of the city which was
partially submerged by the high waters then prevalent, the
cellar of the premises being flooded. When the employe1
called at these premises he was told of the flooded condi-
tions of the cellar and was requested to deliver the beer at the
back yard, which he did, and while so doing he was bitten by
a bulldog. The attending physician's report stated that the
employe" "reached through a hole in a gate to unhook fasten-
ing and was bitten by a bulldog which he was unable to see,
as the fence was too high to look over." It was held that the
injury occurred in the course of his employment and that
the workman was entitled to compensation. Re William
Miller, Claim No. 3483, Ohio State Lia. Bd. Awd., April 18,
19i3.
A claimant was bitten in the right leg by a mad dog while
returning to work from dinner and it was held that the injury
did not arise out of the employment and compensation
was refused. Re Alexander Green, Op. Sol. Dep. C. & L.,
p. 223.
33
514 bradbury's workmen's compensation law
Foreign substance in eye
25. Sting of insect.
A workman in charge of a threshing machine in a field
was stung by a wasp and died from the effect of the sting.
It was held that the accident did not arise out of the employ-
ment and compensation was refused. Amys v. Barton (1911),
5 B. W. C. C. 117.
A lady's maid* in the course of her employment, was sew-
ing at an open window, through which an insect flew into
her face. To defend her eyes she quickly put up her hand,
which accidentally struck and permanently injured her eye.
It was held that the injury was not a personal injury by
accident arising out of the employment. Craske v. Wigan
(1909), 100 L. T. 8; 2 B. W. C. C. 35.
26. Bite of snake.
The Washington Commission granted compensation to a
workman doing road work who was bitten by a rattlesnake.
Rept. 1913, p. 65.
27. Foreign substance in eye.
While a dock laborer was unloading a cargo of bran, some
of the bran blew into his eye. There was grit in the bran, and
this, by his constantly rubbing his eye, produced an abra-
sion of the cornea. This resulted in the necessity of removing
the eye. It was held that this was an accident arising out
of and in the course of the employment and that the workman
was entitled to compensation. Adams v. Thompson (1911),
5B.W. C. C. 19.
While engaged in chipping the burs from a steel plate
with a cold chisel a workman was injured by a piece of the
steel so chipped off, striking him in the eye and destroying
his sight. It was held that this was an accident within the
meaning of the British Compensation Act. Neville v. Kelly
Bros. & Mitchell (1907), 13 B. C. 125; 1 B. W. C. C. 432.
It appeared that the applicant for compensation had sore
eyes when he went to work on April 7, 1913. A few days
later he alleged he got dust in his eyes from a machine.
INJURIES ARISING OUT OF EMPLOYMENT 515
Lightning striking workman
Nothing was said about the accident until June 12 following,
when the applicant demanded compensation. The applica-
tion was denied. Wilkie v. Thomas Forman Co., Mich.
Indus. Ace. Bd., Oct. 15, 1913; The Indicator, Oct. 20, 1913,
at p. 417.
28. Seaman injured by explosion of gun.
The third officer of a steamship was injured by the pre-
mature explosion of a gun which had been placed on the deck
to be used against robbers, who were in the habit of boarding
the ship and stealing therefrom, and it was held that the acci-
dent arose out of and in the course of the officer's employ-
ment, under the British Compensation Act. Thompson v.
Nautilus Steamship Co., The Policyholder, July 10, 1912,
p. 553.
29. Lightning striking workman.
A workman whose duty was to clean out the gullets at the
side of a road during a storm, to prevent the water flooding
the road, was struck by lightning. It was held that the death
was not occasioned by accident arising out of the employ-
ment. Kelly v. Kerry County Council (1908), 42 Irish L. T.
23; 1 B. W. C. C. 194. But see Andrew v. Failsworth Indus-
trial Soc. (1904), 90 L. T. 611; 6 W. C. C. 11, where a brick-
layer on a scaffold, twenty-three feet from the ground, was
struck by lightning and it was held that this was an accident.
The last-mentioned case was decided by the Court of Appeal
of England. The case was not decided squarely on the
ground that in all cases where a workman was killed by
lightning his dependents would be entitled to compensation.
The judgment of the court below was adopted to the effect
that this particular workman was in a more than ordinarily
dangerous position as to Hghtning.
It is not enough for a workman to assert that an accident
which has caused personal injury to him would not have
happened if he had not been in the particular place where it
516 bbadbury's workmen's compensation law
Drawing inferences from unexplained injuries
occurred. But it must be shown that the accident arose
because of something he was doing in the course of his em-
ployment, or because it placed him in a position of peculiar
danger, and the risk incurred was therefore incidental to
his employment. Craske v. Wigan (1909), 100 L. T. 8; 2
B. W. C. C. 35.
■*
30. Drawing inferences from unexplained injuries.
A ship's fireman in the tropics, unused to the work, and
working longer hours than usual owing to the ship being short-
handed, disappeared. It was the custom for firemen to come
up on deck" for fresh air and this man was seen to come on
the deck for water shortly before he was last seen in the
stokehole. The inference that the accident arose out of
the employment was sustained and compensation was
awarded to the dependents. Lee v. Stag Line (1912), 5 B.
W. C. C. 660.
A ship's cook disappeared unexplainedly at sea. He was
last seen in the galley, where there was no possibility of fall-
ing overboard. The weather was rough, and he was last
seen to go on deck to reach the toilet. The County Court
judge inferred that the accident arose out of the employment,
but it was held on appeal that there was no evidence to sup-
port the inference and compensation was denied. Burwash
v. F. Leyland & Co. (1912), 5 B. W. C. C. 663.
An engineer who was employed on board a small steam
tug, was last seen asleep in his bunk at 5 a.m. An hour
afterward he had disappeared, leaving his working clothes
lying at the side of his bunk. The tug was to commence
towing at 7 a. m. that morning and steam had been ordered
to be got up for that hour. The deck was a place where
between five and seven a. m. he was entitled to be. Two
days afterward his body, clad in his ordinary sleeping clothes,
was found in the water near the place where the tug had been
moored on the morning in question. The examining phy-
sician testified that the man's death was due to drowning.
INJURIES ARISING OUT OF EMPLOYMENT 517
Drawing inferences from unexplained injuries
It appeared in evidence that he was unable to swim, but
there was no direct testimony as to how the deceased had
met with his death. It was held that the arbitrator was
entitled to draw the inference of fact that the workman had
accidentally fallen overboard and been drowned, and that the
accident arose out of and in the course of the man's employ-
ment. Mackinnon v. Miller (1909), 46 Scotch L. R. 299-
2 B. W. C. C. 64.
An engine driver, over sixty years old, was working about
the engine at a railway station. He was next seen lying be-
tween the engine and the platform with his two legs doubled
up, exhibiting signs of agony, and he died a few minutes
later. There was no evidence to show how he got into this
position, but there was evidence to show that on at least
three previous occasions when the train was at a station, the
deceased had collapsed in a faint, and had lain unconscious
for some minutes. A few days before the occurrence the
deceased was examined by the physician of the company
and was presumably passed as physically fit for his position.
The County Court judge held that the accident arose out
of and in the course of his employment. It was held that
there was sufficient evidence to justify the finding. Fennah
v. Midland & Great Western Railway of Ireland (1911), 45
Irish L. T. 192; 4 B. W. C. C. 440. In this case the court
said: "The judge is entitled to draw an inference, but he
cannot arrive at it by guess or conjecture; and the onus is,
in the first instance, on the .applicant to furnish evidence
from which an inference in the applicant's favor can be
legitimately drawn."
A train of three cars pushed by an engine overtook another
train on the same tracks, and the two trains ran buffer to
buffer as if coupled. The brakeman of the rear train tried
to get on the front train but slipped between the buffers
and was killed. There was no direct evidence as to his
reasons for trying to board the front train, but there was
evidence that he would shortly have had to alight to shift
518 BRADBtTKY's WOBKMEn's C0MJ?£ttSAii<l6N LAW"
Arizona
some points (switches), and that it was much easier to alight
from the front than from the rear train, the former having
steps while the latter had none. From this the County Court
judge drew the inference that the attempt was made in order
to alight more easily, and therefore held that the accident
arose out of the employment. It was held on appeal that the
County Court jUdge was entitled to draw this inference.
Astley v. B. Evans & Co. (1911), 104 L. T. 373; 4 B. W. C.
C. 209; affirmed by the House of Lords, R. Evans & Co. v.
Astley (1911), 4 B. W. C. C. 319.
While a ship was on the high seas the cook fell over-
board and was drowned. The weather was perfectly calm
at the time. It was daylight and the ship was steady.
There was no evidence to show how the deceased had fallen
overboard. It was held that the dependent had failed to
discharge the onus upon her of proving that the accident
arose out of and in the course of the employment of the de-
ceased, there being no justification for inferring that the
accident arose out of the employment because it was ad-
mitted that it happened in the course of the employment.
Bender v. Owners of Steamship "Zent" (1909), 100 L. T.
639; 2 B. W. C. C. 22. In the last-mentioned case one of
the judges stated by way of dictum that if, on a stormy
night, one of the watches of the ship was missing, the infer-
ence to be drawn would be that the most natural cause of
the accident was the increased danger to which the seaman
was subjected in the course of his employment, and that
therefore the accident arose out of his employment.
ARTICLE D— SPECIFIC PROVISIONS OF VARIOUS ACTS
ARIZONA
While the terms are transposed in the Arizona Act it
follows those statutes in which the wording "injury by ac-
cident arising out of and in the course of the employment"
is found.
INJURIES ARISING OUT OF EMPLOYMENT 519
Connecticut
"When, in the course of work * * * personal injury by
accident arising out of and in the course of such labor, serv-
ice, or employment, is caused to or suffered by any workman
therein, by any risk or failure specified in the second section
hereof, then such employer shall be liable," etc. § 7, Act of
1912; § 71, Act of 1913.
"Compulsory compensation shall be paid by his employer
to any workman * * * if in the course of the employment
of said employe personal injury thereto from any accident
arising out of and in the course of such employment is
caused," etc. § 2, Act of 1912; § 66, Act of 1913.
There is nothing in the Arizona Act relieving the employer
in case the injury is caused by the wilful misconduct of the
employ^. As the injury must be caused by accident this
would preclude claims where the injury was wilfully self in-
flicted.
CALIFORNIA
The California Act contains the provision of the British
statute on this subject with an additional requirement:
"Liability for compensation * * * shall * * * exist against
an employer for personal injury sustained by his employes
by accident arising out of and in the course of the employ-
ment * * *" § 12, (a). "When, at the time of the accident,
the employe1 is performing service growing out of and in-
cidental to his employment and is acting within the course
of his employment as such." § 12 (a) (2).
The portion of the Act relating to special defenses provides
that compensation shall be awarded "when the injury is
approximately caused by accident, either with or without
negligence, and is not so caused by the intoxication or the
wilful misconduct of the injured employe." § 12 (a) (3).
CONNECTICUT
The word "accident" is omitted from the Connecticut
Act, the words being "personal injury sustained by an em-
520 bradbury's workmen's compensation law
Kansas
ploy6. arising out of and in the course of his employment."
Part B, § 1.
It is provided that "no compensation shall be paid when
the injury shall have been caused by the wilful and serious
misconduct of the employe or by his intoxication." Part B,
§1.
* ILLINOIS
The Illinois Act provides that the employer, who so
elects, shall pay compensation "for accidental injuries
sustained by any employe1 arising out of and in the course
of the employment." § 1.
There are no special defenses based on wilful misconduct
or intoxication in the Illinois Act.
IOWA
The Iowa Act omits the word "accident" and provides
that the employer shall pay compensation for "personal
injuries sustained by an employe arising out of and in the
course of the employment." § 1 (a).
"§ 2. No compensation under this act shall be allowed for
an injury caused:
"(a) By the employe's wilful intention to injure himself
or to wilfully. injure another; nor shall compensation be paid
to an injured employe1 if injury is sustained where intoxica-
tion of the employ^ was the proximate cause of the injury."
KANSAS
The Kansas Act provides that "if in any employment to
which this Act applies, personal injury by accident arising
out of and in the course of employment is caused," etc. § 1.
It is provided that the employer shall not be liable "if
it is proved that the injury to the workman results from his
deliberate intention to cause such injury, or from the wilful
failure to use a guard or protection against accident required
pursuant to any statute and provided for him, or a reasonable
INJUEIES ARISING OUT OF EMPLOYMENT 521
Michigan
and proper guard and protection voluntarily furnished to
him by said employer, or solely from his deliberate breach
of statutory regulations affecting safety of life or limb, or
from his intoxication. Any compensation in respect to that
injury shall be disallowed." § 1 (6).
MARYLAND
The Maryland Act provides that "it shall be lawful for
any employer to make a contract in writing with any employe"
whereby the parties may agree that an employe shall become
insured against accident occurring in the course of the em-
ployment, which results in personal injury or death," etc.
There is nothing in the Maryland statute in relation to
special defenses based on wilful misconduct.
MASSACHUSETTS
In the compensation feature of the Massachusetts Act it
is provided that an employe" is entitled to compensation when
he "receives a personal injury arising out of and in the course
of his employment." Part II, § 1. In that portion of the
Massachusetts Act in which the common-law defenses are
abolished a different wording is found. It is therein provided
that "in an action to recover damages for personal injury
sustained by an employe" in the course of his employment,
or for death resulting from personal injury so sustained it
shall not be a defense," etc. Part I, § 1.
"If the employe is injured by reason of his serious and
wilful misconduct he shall not receive compensation." Part
II, § 2.
MICHIGAN
The Michigan Act provides that an employe" who is subject
to the Act is entitled to compensation if he "receives a per-
sonal injury arising out of and in the course of his employ-
ment." Part II, § 1.
522 beadbury's workmen's compensation law
Nebraska
It is provided that "if the employe" is injured by reason of
his intentional and wilful misconduct, he shall not receive
compensation under the provisions of this Act." Part II,
§2.
MINNESOTA
The Minnesota Act provides that compensation shall
be paid by an employer "in every case of personal injury
or death to his employe, caused by accident, arising out of
and in the course of employment." Part II, § 9.
"Personal injuries, etc. — Without otherwise affecting
either the meaning or interpretation of the abridged clause,
'personal injuries arising out of and in the course of employ-
ment,' it is hereby declared:
"Not to cover workmen except while engaged in, on, or
about the premises where their services are being performed,
or where their service requires their presence as a part of such
service at the time of the injury, and during the hours of
service as such workmen, and shall not include an injury
caused by the act of a third person or fellow employe intended
to injure the employe" because of reasons personal to him, and
not directed against him as an employe^ or because of his
employment." § 34 (i).
Compensation will be denied where accidents "are in-
tentionally self-inflicted or where the intoxication of such
employe" is the natural or proximate cause of injury, and the
burden of proof of such facts shall be upon the employer."
Part II, §9.
NEBRASKA
The Nebraska Act provides that compensation shall be
paid "in every case of injury or death caused by accident
arising out of and in the course of the employment." Part
VII, §9.
Compensation is denied for accidents "resulting in any
INJURIES ARISING OUT OF EMPLOYMENT 523
New Jersey
degree from wilful negligence, as hereinafter defined, of the
employe." Part II, § 9.
"For the purposes of this Act wilful negligence shall con-
sist of (1) deliberate act, or (2) such conduct as evidences
reckless indifference to safety, or (3) intoxication at the time
of the injury." Part III, § 52 (d).
NEVADA
The Nevada Act provides for compensation to employes
"who sustain personal injury arising out of and in the course
of the employment." § 1 (a). It will be observed that the
word "accident" is omitted.
No compensation shall be allowed for an injury caused
"by the employe's wilful intention to injure himself or to
wilfully injure another; nor shall compensation be paid to
an injured employe" if injury is sustained while intoxicated."
§ 2 (a).
NEW HAMPSHIRE
Under the New Hampshire Act an employer who has
adopted the compensation principle is liable to his employes
"for any injury arising out of and in the course of their em-
ployment." § 3. It will be observed that the word "acci-
dent" was omitted from the New Hampshire Act.
It is provided that the employer "shall not be liable in
respect of any injury to the workman which is caused in
whole or in part by the intoxication, violation of law, or
serious or wilful misconduct of the workman." § 3.
NEW JERSEY
The New Jersey Act provides for compensation "for per-
sonal injuries to or for the death of such employe by accident
arising out of and in the course of his employment." § II,
subd. 7.
Compensation is denied "when the injury or death is
524 bradbury's workmen's compensation law
Oregon
intentionally self-inflicted, or when intoxication is the natural
and proximate cause of injury, and the burden of proof of
such fact shall be upon the employer." § II, subd. 7.
NEW YORK
The New York^Act provides that "injury" and "personal
injury" mean "only accidental injuries arising out of and
in the course of employment and such disease or infection
as may naturally and unavoidably result therefrom." § 3,
subd. 7. It is further provided that employers subject to
the provisions of the Act shall pay compensation "for the
disability or death of his employes resulting from an acci-
dental personal injury sustained by the employe1 arising out
of and in the course of his employment." § 10.
The employer is relieved from liability under the Compen-
sation statute "where the injury is occasioned by the wilful
intention of the injured employe1 to bring about the injury
or death of himself or of another, or where the injury results
solely from the intoxication of the injured employe1 while
on duty." §10.
OHIO
The Ohio Act provides that "every employe1 mentioned
in subdivision one of section 14 hereof who is injured, and
the dependents of such as are killed in the course of employ-
ment, wheresoever such injury has occurred, provided the
same was not self-inflicted, on or after January 1, 1914,
shall be paid such compensation out of the State Insurance
fund for the loss sustained on account of such injury or death
as is provided," etc. § 1465-68; § 21 of Act of 1913.
OREGON
The Oregon Act provides that compensation shall be paid
to an employ^ who "sustains personal injury by accident
arising out of and in the course of his employment." § 12.
INJURIES ARISING OUT OF EMPLOYMENT 525
Texas
The Act is not entirely consistent, however. The provision
which specifies the amount of compensation which shall
be paid provides that "if any workman while he is subject
to this Act and in the service of an employer who is thus
bound to contribute to the Industrial Accident Fund, shall
sustain a personal injury by accident arising out of and in
the course of his employment caused by violent or external
means, he, or his beneficiaries or dependents, if the injury
result in death, shall receive compensation according to
the following schedule:" § 21. It will be seen from the
above that the words "caused by violent or external means"
are added to § 21 and are not contained in § 12.
"If the injury or death results to a workman from the de-
liberate intention of the workman himself to produce such
injury or death" compensation shall not be allowed. § 22.
RHODE ISLAND
The compensation feature of the Rhode Island Act pro-
vides that compensation shall be paid if an employe1 "re-
ceives a personal injury by accident arising out of and in the
course of his employment." Art. II, § 1. It will be observed
that the word "accident" is omitted from the Rhode Island
Act.
"No compensation shall be allowed for the injury or death
of an employe where it is proved that his injury or death was
caused by his wilful intention to bring about the injury or
death of himself or of another, or that the same resulted
from his intoxication while on duty." Art. 2, § 2.
TEXAS
The Texas Act employs the term "personal injury sus-
tained by an employ^ in the course of his employment."
Part 1, § 1. It will be observed that the word "accident"
is omitted as is also the term "arising out of."
It is a defense that "the injury was caused by the wilful
526 bkadbuby's wokkmen's compensation law
Wisconsin
intention of the employ^ to bring about the injury." Part
I, § 1, subd. 3.
WASHINGTON
The Washington Act provides that "each workman who
shall be injured whether upon the premises or upon the plant
or, he being in the*course of his employment, away from the
plant of his employer," shall receive compensation. § 5.
"The words injury or injured, as used in this act, refer
only to an injury resulting from some fortuitous event as
distinguished from the contraction of disease." § 3.
"If injury or death results to a workman from the delib-
erate intention of the workman himself to produce such in-
jury or death," compensation shall not be paid. § 6.
WEST VIRGINIA
The State Insurance Fund is disbursed to employes who
shall "have received injuries in this State in the course
of and resulting from their employment." § 25.
Compensation is denied where the injury is self-inflicted
or caused by "the wilful misconduct or the intoxication of
such employed" § 28.
WISCONSIN
Under the Wisconsin Act compensation is paid for "any
personal injury accidentally sustained * * * where at the
time of the accident, the employe1 is performing service
growing out of and incidental to his employment * * *
where the injury is proximately caused by accident and is
not intentionally self-inflicted." § 2394-3.
It is further provided in the same section that "every
employe1 going to and from his employment in the ordinary
and usual way, while on the premises of his employer, shall
be deemed to be performing service growing out of and
incidental to his employment."
CHAPTER VII
LIABILITY OF PRINCIPALS FOR INJURIES TO
WORKMEN OF CONTRACTORS AND SUB-
CONTRACTORS
Page
ARTICLE A— Introduction 527
1. Scope op Chapter 527
2. Decisions under British Act 528
ARTICLE B — Specific Provisions op Various Statutes 532
Page
Arizona 532 Nevada 539
California 532 New Hampshire 539
Connecticut 533 New Jersey 540
Illinois 534 New York 540
Iowa 534 Ohio 540
Kansas 535 Oregon 540
Maryland 536 Rhode Island 540
Massachusetts 537 Texas 541
Michigan 537 Washington 541
Minnesota 538 West Virginia 541
Nebraska 538 Wisconsin 541
ARTICLE A— INTRODUCTION
1. Scope of chapter.
It will be noted from the pages which follow that a majority
of the compensation acts have special provisions on this
subject. A clear distinction must be drawn between cases
arising under these specific statutory provisions and those
wherein the courts, under various sets of circumstances,
have determined that workmen, ostensibly employed di-
rectly by a contractor or a subcontractor, were in fact
employes of the principal or the contractor. Under the
statutes the principal is held liable not on the ground that
the relation of master and servant exists between him and
the employes of his contractor or subcontractor, but solely
527
528 Bradbury's workmen's compensation law
Decisions under British Act
by force of the statute. This provision was inserted to
prevent principals, particularly in building operations, from
escaping all liability by a series of contracts and subcon-
tracts with dummy corporations without financial respon-
sibility.
2. Decisions utfder British Act.
A somewhat similar provision is contained in the British
Act under which the decisions cited below were made.
By an agreement entered into between the defendant and
one Lovelace, the latter was to keep an airship on exhibition
on the defendant's grounds, and pay the wages of the turn-
stile man who was to be a servant of the defendant corpora-
tion. Admission to the inclosure to view the airship was only
to be obtained by ticket and the moneys collected daily by
the turnstile man were to be paid, one-half to Lovelace, who
agreed to pay the persons engaged by him, the defendant
receiving the remainder of the receipts. For the purpose of
carrying out the agreement Lovelace engaged a lecturer
whose duties were to explain the various parts of the airship
and the exploits of Lovelace. After the airship had been on
exhibition for some time it exploded and the lecturer was so
severely burned that he died as a result of the injuries. In
a proceeding by the widow of the lecturer for compensation,
it was held that the lecturer was not a "workman" within
the meaning of § 13 of the Compensation Act of 1906; and
even assuming that the lecturer was a workman, his remedy
was against Lovelace and not against the defendant. Waites
v. Franco-British Exhibition (Incorporated) (1909), 2 B.
W. C. C. 199.
Two men named Jones and Acocks determined to open
a skating rink. They bought an existing iron building and
contracted with Howarth to remove it for them to its new
position. In the course of the work, a man employed by
Howarth was injured and claimed compensation from Jones
and Acocks, as principals, within the meaning of § 4 of the
LIABILITY TO EMPLOYES OF CONTRACTORS 529
Decisions under British Act
Act. It was held that. Jones and Acocks were not principals
within the meaning of the section mentioned and the appli-
cation was dismissed. Skates v. Jones & Co. (1910), 3 B.
W. C. C. 460.
The deceased was a farm laborer who was in the habit
of working for different farmers at 2s. 6d. a day, coming
and going when and as he wished. He came to work for the
respondent at hay harvest in June, 1907, and worked for
him until July 4th of that year, when he worked for another
fanner for a week; after which he came back and worked for
the respondent until October 10, 1908, except on three days
at different times, when he absented himself without notice,
getting no wages for the days when he was. away. On the
morning of October 12th, 1908, the deceased came to the re-
spondent's house with another laborer of the same kind
prepared to work, and was told by the respondent's servant
to go to a neighboring farmer, Andrews, who had sent a
message to the respondent asking him to lend him a man to
help in threshing, to which the respondent had answered
that the deceased could go. The deceased therefore went
to Andrews, and while threshing met with an accident which
caused his death. It was held that the deceased's em-
ployment was of a casual nature, that he was a workman
withing the meaning of § 13 of the Act, but that there was
no contract of service between the workman and the respond-
ent at. the time of the accident, and therefore dependents
were not entitled to compensation from the respondent.
Boswell v. Gilbert (1909), 2 B. W. C. C. 251.
A municipal corporation being desirous of clearing land
of old buildings for the purpose of extending a market ad-
vertised for bids to remove the buildings and accepted the
proposition of one Todd who offered to remove the buildings
and pay £15, provided he could have the bricks in the build-
ings. This offer was accepted. During the progress of the
work a man employed, by Todd was killed. It was held that
the widow of the deceased could recover compensation
34
530 bradbury's workmen's compensation law
Decisions under British Act
from the municipal corporation under §§ 4 and 13 of the Act.
Mulrooney v. Todd and the Bradford Corporation (1908), 100
L. T. 99; 2 B. W. C. C. 191.
Where C purchased some standing timber and contracted
with M to fell the timber and M employed his son to help do
the work, and the son was injured, it was held that the son
could not recover compensation from C as the son of M was
not a workman of C's within the meaning of § 4 of the Act.
Marks v. Came (1908), 100 L. T. 950; 2 B. W. C. C. 186.
The registered owner of a steam tug chartered her to
another. Under the charter-party the owner was bound to
provide and pay a crew of two men, including the deceased,
and he alone had power to dismiss them- The possession,
control and management of the vessel under the charter-
party belonged to the person to whom it was chartered. It
was held that the owner and not the charterer was the de-
ceased's employer, within the meaning of the Compensation
Act. Mackinnon v. Miller (1909), 46 Scotch L. R. 299;
2 B. W. C. C. 64.
A shipowner contracted with Williamson for the cleaning
of the boilers in one of his vessels. Williamson engaged a
number of boiler scalers to do the work, and one of them,
Spiers, was injured while so employed. Spiers was subject to
the orders of Williamson in the performance of the work, a
certain supervision over him and the other workmen being
exercised by a foreman in the employment of the shipowner.
Spiers received his wages from Williamson, who in turn re-
ceived the money in installments from the shipowner as
desired for payment of the wages. It was held that Spiers
was not in the employment of the shipowner and therefore
not entitled to compensation from him. Spiers v. Elderslie
Steamship Co. (1909), 46 Scotch L. R. 893; 2 B. W. C. C. 205.
The work of boiler scaling on a ship is not undertaken by
the shipowner in the course or for the purposes of his trade
or business within the meaning of §4 of the Workmen's
Compensation Act. Id.
LIABILITY TO EMPLOYES OF CONTRACTORS 531
Decisions under British Act
The respondents were owners of a threshing machine which
they let out on hire to farmers. They were bound by stat-
ute to have three men to attend the machine, two to look
after the engine and a third as a road man. At farms the
road man acted as assistant in threshing, being paid for this
by the farmer and not by the respondents. While engaged
in the threshing the applicant, the road man, was injured
and claimed compensation from the respondents, who de-
nied liability, stating that the farmer was the employer.
The County Court judge held the respondents were the
employers. On appeal it was held that the County Court
judge had decided a question of fact, and that there was
evidence to support his decision. Reed v. Smith, Wilkinson
& Co. (1910), 3 B. W. C. C. 223.
A farmer arranged with David Walsh for the services of
a threshing machine, which was owned by David Walsh's
father, it being understood that 25 shillings was the sum to
be paid for the use of the machine, and from this the sum of
20 shillings should go to the father of David Walsh. In
the course of the work David Walsh's hand got caught in
the machine and had to be amputated. It was held that the
farmer was not liable to David Walsh under § 4 of the Act.
Walsh v. Hayes (1909), 43 Irish L. T. 114; 2 B. W. C. C. 202.
A workman was drowned while mooring a ship belonging
to the respondents. He was paid by a stevedore who worked
for the respondents and other firms. The respondents
contended that the workman was employed by the stevedore
and not by them. The stevedore gave evidence that the
money was paid through him merely for the convenience
of the respondents. The County Court judge held that the
man was employed directly by the respondents and not by
the stevedore. On appeal it was held that this was a question
of fact and the court could not interfere, as there was some
evidence to support the decision. Pollard v. Gooh and Hull
Steam Towing Co- (1910), 3 B. W. C. C. 360.
532 bradbury's workmen's compensation law
California
ARTICLE B— SPECIFIC PROVISIONS OF VARIOUS STATUTES
ARIZONA
There is no provision on this subject in the Arizona
Statute.
CALIFORNIA
"§30. The liability of principals and contractors for com-
pensation under this act, when other than the immediate em-
ployer of the injured employee, shall be as follows:
" (a) The principal, any general contractor and each inter-
mediate contractor who undertakes to do, or contracts with
another to do, or to have done, any work, shall be liable to pay
to any employee injured while engaged in the execution of such
work, or to his dependents in the event of his death, any com-
pensation which the immediate employer is liable to pay.
" (b) The person entitled to such compensation shall have
the right to recover the same directly from his immediate em-
ployer, and in addition thereto the right to enforce in his own
name, in the manner provided by this act, the liability for
compensation imposed upon other persons by this section,
either by making such other persons parties to the original
application or by filing a separate application; provided,
however, that payment in whole or in part of such compensa-
tion by either the immediate employer or other person shall,
to the extent of such payment, be a bar to recovery against
the other by any person entitled to such compensation.
" (c) When any person, other than the immediate employer,
shall have paid any compensation for which he would not have
been liable independently of this section, he shall, unless he
caused the injury, be entitled to recover the full amount so
paid from the person primarily liable therfor.
" (d) The liability imposed by this section upon such prin-
cipal, general contractor and intermediate contractor shall be
subject to the following limitations:
" (1) Such liability shall exist only in cases where the' in-
jury occurred on or in or about the premises on which the
principal, general contractor or intermediate contractor has
LIABILITY TO EMPLOYES OF CONTRACTORS 533
Connecticut
undertaken to execute any work, or when such premises or
work are otherwise under his control or management.
" (2) Such liability shall not exist in the event that the im-
mediate employer, or other person primarily liable for the com-
pensation shall, previous to the happening of such accident,
have taken out, and maintained in full force and effect, com-
pensation insurance with any insurance carrier, covering his
full liability for compensation to the injured person or his
dependents.
"(3) The commission may, in its discretion, order that
execution against the principal, general contractor and any
intermediate contractor, be stayed until execution against
the immediate employer shall be returned unsatisfied.
"§ 31. The making of a lawful claim against an employer
for compensation under this act for the injury or death of his
employee shall operate as an assignment to the employer of
any right to recover damages which the injured employee, or
his personal representative, or other person, may have against
any other party for such injury or death, and such employer
shall be subrogated to any such right and may enforce in his
own name the legal liability of such other party. The amount
of compensation paid by the employer, or the amount of com-
pensation to which the injured employee or his dependents is
entitled, shall not be admissible in evidence in any action
brought to recover damages, but any amount collected by the
employer, under the provisions of this section, in excess of the
amount paid by the employer, or for which he is liable, shall be
held by him for the benefit of the injured employee or other
person entitled."
CONNECTICUT
"Part B, § 5. Principal Employer, Contractor, and Sub-
Contractor. When any principal employer procures any
work to be done, wholly or in part for him, by a contractor,
or through him by a sub-contractor, and the work so pro-
cured to be done is a part or process in the trade or business
of such principal employer, and is performed in, on, or about
premises under his control, then such principal employer
534 BRADBURY'S WORKMEN^ COMPENSATION lAW
Iowa
shall be liable to pay all compensation under this act to the
same extent as if the work were done without the intervention
of such contractor or sub-contractor."
ILLINOIS
"§ 31. Any*person, firm or corporation, who undertakes to
do or contracts with others to do, or have done for him, them
or it, any work enumerated as extra-hazardous in paragraph
(b) in section 3, requiring employment of employes in, on or
about the premises where he, they or it as principal or princi-
pals, contract to do such work or any part thereof, and does
not require of the person, firm or corporation undertaking to
do such work for said principal or principals, that such person,
firm or corporation undertaking to do such work shall insure
his, their or its liability to pay the compensation provided in
this Act to his, their or its employes and any such person,
firm or corporation who creates or carries into operation any
fraudulent scheme, artifice or device to enable him, them or
it to execute such work without such person, firm or corpora-
tion being responsible to the employee, his personal represen-
tative or beneficiary entitled to such compensation under the
provisions of this Act, such person, firm or corporation shall
be included in the term "employer" and with the immediate
employer shall be jointly and severally liable to pay the com-
pensation herein provided for and be subject to all the pro-
visions of this Act."
IOWA
The last sentence of § 17 (a) which defines the word
employer, reads as follows: "Whenever necessary to give
effect to section seven of this Act, it includes a principal or
intermediate contractor."
Section 7 provides as follows:
"§ 7. Where an employee coming under the provisions of
this act receives an injury for which compensation is payable
under this act and which injury was caused under circum-
LIABILITY TO EMPLOYES OF CONTRACTORS 535
Kansas
stances creating a legal liability in some person other than the
employer, to pay damages in respect thereof.
"(a) The employee or beneficiary may take proceedings
both against that person to recover damages and against the
employer for compensation, but the amount of the compensa-
tion to which he is entitled under this act shall be reduced by
the amount of damages recovered.
" (b) If the employee or beneficiary in such case recovers
compensation under this act, the employer by whom the com-
pensation was paid or the party who has been called upon to
pay the compensation, shall be entitled to indemnity from
the person so liable to pay damages as aforesaid, and shall
be subrogated to the rights of the employee to recover there-
for."
The relation of the two sections is far from clear. Ap-
parently the statute provides that where a contractor is
liable for the injury that the principal is entitled to indem-
nity. But there is no provision that the principal shall be
liable to pay compensation directly to the employes of a
contractor or subcontractor.
KANSAS
"§4. Subcontracting, (a) Where any person (in this section
referred to as principal) undertakes to execute any work
which is a part of his trade or business or which he has con-
tracted to perform and contracts with any other person (in
this section referred to as the contractor) for the execution
by or under the contractor of the whole or any part of the
work undertaken by the principal, the principal shall be
liable to pay to any workman employed in the execution of
the work any compensation under this act which he would
have been liable to pay if that workman had been immedi-
ately employed by him; and where compensation is claimed
from or proceedings are taken against the principal, then, in
the application of this act, references to the principal shall be
substituted for references to the employer, except that the
amount of compensation shall be calculated with reference to
536 bradbury's workmen's compensation law
Maryland
the earnings of the workman under the employer by whom he
is immediately employed. (6) Where the principal is liable to
pay compensation under this section, he shall be entitled to in-
demnity from any person who would have been liable to pay
compensation to the workman independently of this section,
and shall have a cause of action therefor, (c) Nothing in this
section shall be construed as preventing a workman from re-
covering compensation under this act from the contractor in-
stead of the principal, (d) This section shall not apply to any
case where the accident occurred elsewhere than on or in, or
about the premises on which the principal has undertaken to
execute work or which are otherwise under his control or man-
agement, or on, in, or about the execution of such work under
his control or management, (e) A principal contractor, when
sued by a workman of a subcontractor, shall have the right to
implead the subcontractor. (/) The principal contractor who
pays compensation voluntarily to a workman of a subcon-
tractor shall have the right to recover over against the sub-
contractor.
"§ 5. Remedies both against employer and stranger. Where
the inquiry for which compensation is payable under this act
was caused under circumstances creating a legal liability
against some person other than the employer to pay damages
in respect thereof, (a) The workman may take proceedings
against that person to recover damages and against any per-
son liable to pay compensation under this act for such compen-
sation, but shall not be entitled to recover both damages and
! compensation; and (b) if the workman has recovered compen-
sation under this act, the person by whom the compensation
was paid, or any person who has been called on to indemnify
him under the section of this act relating to subcontracting,
shall be entitled to indemnity from the person so liable to pay
damages as aforesaid, and shall be subrogated to the rights of
the workman to recover damages therefor."
MARYLAND
There is no provision in the Maryland statute on this
subject.
LIABILITY TO EMPLOYES OF CONTRACTORS 537
Michigan
MASSACHUSETTS
"Part III, § 17. If a subscriber enters into a contract,
written or oral, with an independent contractor to do such
subscriber's work, or if such a contractor enters into a con-
tract with a subcontractor to do all or any part of the work
comprised in such contract with the subscriber, and the as-
sociation would, if such' work were executed by employes
immediately employed by the subscriber, be liable to pay
compensation under this act to those employes, the associa-
tion shall pay to such employes any compensation which
would be payable to them under this act if the independent
or subcontractors were subscribers. The association, however,
shall be entitled to recover indemnity from any other person
who would have been liable to such employes independently
of this section, and if the association has paid compensation
under the terms of this section, it may enforce in the name of
the employe^ or in its own name and for the benefit of the
association, the liability of such other person. This section
shall not apply to any contract of an independent or sub-
contractor which is merely ancillary and incidental to, and
is no part of or process in, the trade or business carried on by
the subscriber, nor to any case where the injury occurred
elsewhere than on, in, or about the premises on which the
contractor has undertaken to execute the work for the sub-
scriber or which are under the control or management of the
subscriber."
MICHIGAN
A person employed by a contractor doing public work
under a contract with the State on one of its political sub-
divisions is considered an employ^ of the contractor, and
cannot claim compensation from the State, county7, city or
other municipal corporation. § 7, subd. 1.
There is no other provision in the Michigan Act relating
to this subject.
538 bradbury's workmen's compensation law
Nebraska
MINNESOTA
" § 32. (1) Third person's rights and liabilities. — Any per-
son who creates or carries into operation any fraudulent
scheme, artifice or device to enable him to execute work with-
out himself being responsible to the workman for the pro-
visions of this #ct, shall himself be included in the term " em-
ployer," and be subject to all the liabilities of employers
under this act. But this section shall not be considered to
cover or mean an owner who lets a contract to a contractor
in good faith, nor a contractor who, in good faith, lets to a
sub-contractor a portion of his contract. Provided, however,
that no person shall be deemed a contractor or sub-contractor,
so as to make him liable to pay compensation within the
meaning of this section, who performs his work upon the
employer's premises and with the employer's tools or appli-
ances and under the employer's direction; nor one who does
what is commonly known as "piece work," or in any way
where the system of employment used merely provides a
method of fixing the workman's wages.
" (2) Where compensation is claimed from, or proceedings
taken against a person under subdivision one of this section,
the compensation shall be calculated with reference to the
wage the workman was receiving from the person by whom
he was immediately employed at the time of the injury.
" (3) The employer shall not be liable or required to pay
compensation for injuries due to the acts or omissions of
third persons not at the time in the service of the employer,
nor engaged in the work in which the injury occurs, except
as provided in Section 33, or under the conditions set forth
in Section 34 (i)."
NEBRASKA
Part II, § 16. Any person, firm or corporation creating or
carrying into operation any scheme, artifice or device to enable
him, them or it to execute work without being responsible to
the workmen for the provisions of this Act, shall be included
in the term "employer" and with the immediate employer
LIABILITY TO EMPLOYES OF CONTRACTORS 530
New Hampshire
shall be jointly and severally liable to pay the compensation
herein provided for and be subject to all the provisions of
this Act.
This section, however, shall not be so construed as to cover
or mean an owner who lets a contract to a contractor in good
faith, or a contractor who, in good faith, lets to a subcontractor
a portion of his contract, if the owner or principal contractor,
as the case may be, requires the contractor or sub-contractor,
respectively, to procure a policy or policies of insurance from
an insurance company licensed to make such insurance in
this State, which policy or policies of insurance shall guarantee
payment of compensation according to this Act to injured
workmen."
" Part II, § 17. Where compensation is claimed from, or
proceedings taken against a person, firm or corporation under
the foregoing section, the compensation shall be calculated
with reference to the wage the workman was receiving from
the person by whom he was immediately employed at the time
of the injury."
NEVADA
" § 7. (c) No contractor or sub-contractor shall be entitled
to receive compensation under this Act, but shall be deemed
to be an employer."
The Nevada law is an elective State insurance act. The
only way in which employers can adopt the compensation
principal is by paying premiums into the State fund. There
is no provision that a principal shall be liable for premiums
on the payroll of a contractor, but the contractor is liable
to the penalties prescribed in the Act as an employer if he
fails to join the State fund.
NEW HAMPSHIRE
The New Hampshire Act contains no provisions on this
subject.
540 Bradbury's workmen's compensation law
Rhode Island
NEW JERSEY
"1-3. Contract not to bar liability. If an employer enters
into a contract, written or verbal, with an independent con-
tractor to do part of such employer's work, or if such con-
tractor enters into a contract, written or verbal, with a sub-
contractor to«do all or any part of such work comprised in
such contractor's contract with the employer, such contract
or subcontract shall not bar the liability of the employer under
this act for injury caused to an employe of such contractor or
subcontractor by any defect in the condition of the ways,
works, machinery or plant if the defect arose or had not been
discovered and remedied through the negligence of the em-
ployer or some one entrusted by him with the duty of seeing
that they were in proper condition. This paragraph shall
apply only to actions arising under section one."
The foregoing paragraph does not apply to compensation
cases, but only to common-law actions under § 1 of the Act.
It applies to actions for death under the enabling Act of
March 3, 1848. See § 1, 4. There is no provision in the
New Jersey Act that contractors shall be liable for com-
pensation to the employe's of subcontractors.
NEW YORK
There is no provision on this subject in the New York
Statute.
OHIO
There is no provision on this subject in the Ohio Statute.
OREGON
There is no provision on this subject in the Oregon Statute.
RHODE ISLAND
There is no provision on this subject in the Rhode Island
Statute.
LIABILITY TO EMPLOYES OF CONTRACTORS • 541
Wisconsin
TEXAS
"Part II, § 6. If a subscriber enters into a contract, written
or oral, with an independent contractor to do such subscriber's
work, or if a contractor enters into a contract with a sub-
contractor to do all or any part of the work comprised in such
contract with the subscriber, and the association would, if
such work was executed by employes immediately employed
by the subscriber, be liable to pay compensation under this
Act to such employes, the association shall pay to such em-
ployes any compensation which would be payable to them
under this Act if the independent or sub-contractors were
subscribers. The association shall, however, be entitled to
recover indemnity from any other persons who would have
been liable to such employes independently of this section,
and if the Association has paid compensation under the terms
of this section, it may enforce in the name of the employes or
in its own name and for its own benefit the liability of such
other persons. This section shall not apply to independent
or sub-contractors or any contract which is merely auxiliary
and incidental to,, and is no part of or process in, the trade or
business carried on by the subscriber."
WASHINGTON
Where work is done under a public contract the original
contractor pays the entire premium into the State fund on
the payroll of his own and his subcontractors' employes.
The contractor is empowered to collect from the subcontrac-
tor the latter's proportionate share of such premiums.
WEST VIRGINIA
There is no provision on this subject in the West Virginia
Statute.
WISCONSIN
" § 2394-6. An employer subject to the provisions of sections
2394-3 to 2394-31, inclusive, shall be liable for compensation
542 beadbury's workmen's compensation law
Wisconsin
to an employe1 of a contractor or subcontractor under him who
is not subject to sections 2394-3 to 2394-31, inclusive, and
has not complied with the conditions of subsection 2 of section
2394-24 in any case where such employer would have been
liable for compensation if such employ^ had been working
directly for such employer. The contractor or subcontractor
shall also be liable for such compensation, but the employ^
shall not recover compensation for the same injury from more
than one party. The employer who shall become liable for
and pay such compensation may recover the same from such
ssontractor or subcontractor for whom the employe1 was work-
ing at the time of the accident.
"§ 2394-6 shall be in force as to all contracts made sub-
sequent to August 31, 1913."
A workman suffered total disability for eight weeks as a
result of an injury which occurred in the construction of a
bridge. He was employed by Mr. Zachau, who did not have
a contract with the respondent, a municipal corporation,
but who furnished the machinery, took charge of operations,
and hired framers whom he paid by the day. The appli-
cant for compensation was one of these day laborers. It
was held that the applicant was employed by the municipal
corporation and compensation was awarded. Harry Pea-
body v. Town of Superior, Dec. Wis. Indus. Com., June 1,
1912.
CHAPTER VIII
WAITING PERIOD
Page
ARTICLE A — Specific Provisions of Various Statutes 543
Page
Arizona 543 Nevada 546
California 543 New Hampshire 546
Connecticut 544 New Jersey 546
Illinois 544 New York 546
Iowa 544 Ohio 547
Kansas 544 Oregon 547
Maryland 544 Rhode Island 547
Massachusetts 545 Texas 547
Michigan 545 Washington 547
Minnesota 545 West Virginia 548
Nebraska 545 Wisconsin 548
ARTICLE A— SPECIFIC PROVISIONS OF VARIOUS STATUTES
ARIZONA
"The employer shall not be liable under this Chapter in
respect of any injury which does not disable the workman
for a period of at least two weeks after the date of the accident
from earning full wages at the work at which he was employed,
at the time of the injury." § 71.
CALIFORNIA
"§ 15. (b) 1. If the accident causes disability, a disability
indemnity which shall be payable for one week in advance
as wages on the fifteenth day after the injured employ^ leaves
work as a result of the injury, and thereafter on the employer's
regular payday, but not less frequently than twice in each
calendar month, unless otherwise ordered by the commission,
subject, however, to the following limitations:
"(1) If the period of disability does not last longer than
two weeks from the day the employ6 leaves work as the re-
543
544 Bradbury's workmen's compensation law
Maryland
suit of the injury, no disability indemnity whatever shall be
recoverable.
" (2) If the period of disability lasts longer than two weeks
from the day the employe- leaves work as the result of the
injury, no disability indemnity shall be recoverable for the
first two weeks of such disability."
* CONNECTICUT
"Part B, § 8. Waiting Period. No compensation shall be
payable under this act on account of any injury which does
not incapacitate the injured employe1 for a period of more
than two weeks from earning full wages at his customary
employment; but if incapacity extends beyond a period of two
weeks compensation shall begin on the fifteenth day after
the injury."
ILLINOIS
No compensation is allowed during first six working days of
disability. Compensation begins on the eighth day. § 8, (6).
IOWA
" § 10. (g) No compensation shall be paid for an injury
which does not incapacitate the employe1 for a period of
at least two weeks from earning full wages; but if incapacity
extends beyond a period of two weeks, compensation shall
begin on the fifteenth day after the injury."
KANSAS
"The employer shall not be liable under this act in respect
of any injury which does not disable the workman for a
period of at least two weeks from earning full wages at the
work at which he is employed." § 1 (a).
MARYLAND
"§ 5. (Ill) * * * The contract or policy herein referred
to may provide that no benefits shall be paid in case of any
injury which does not incapacitate the employ^ for a period
WAITING PERIOD 545
Nebraska
of at least one week from earning full wages at the work at
which he was employed at the time of the accident."
MASSACHUSETTS
"Part II, § 4. No compensation shall be paid under this
aot for any injury which does not incapacitate the employe1 for
a period of at least two weeks from earning full wages, but
if incapacity extends beyond the period of two weeks, compen-
sation shall begin on the fifteenth day after the injury."
MICHIGAN
"Part II, §3. No compensation shall be paid under this
act for any injury which does not incapacitate the employe1 for
a period of at least two weeks from earning full wages, but if
incapacity extends beyond the period of two weeks, com-
pensation shall begin on the fifteenth day after the injury:
Provided, However, That if such disability continues for
eight weeks or longer, such compensation shall be computed
from the date of the injury."
MINNESOTA
"Part 2, § 17. Waiting period. — No compensation shall
be allowed for the first two weeks after injury received, except
as provided by Section 18."
NEBRASKA
"Part II, § 19. (When compensation begins.) No compen-
sation shall be allowed for the first fourteen days after dis-
ability begins, except as provided in section 20, but if disabil-
ity extends beyond the period of fourteen days, compensation
shall begin on the fifteenth day after the injury; provided,
however, that if such disability continues for eight weeks or
longer, such compensation shall be computed from the date
of the injury."
35
546 Bradbury's workmen's compensation law
New York
NEVADA
"§ 27. No compensation shall be paid under this Act for
an injury which does not incapacitate the employe1 for a
period of at least two weeks from earning full wages, but if
incapacity extends beyond the period of two weeks, com-
pensation shalf begin on the fifteenth day after the injury:
Provided, however, that if such disability continues for eight
weeks or longer, such compensation shall be computed from
the date of the injury."
NEW HAMPSHIRE
"§ 3. * * * the employer shall not be liable in respect of
any injury which does not disable the workman for a period
of at least two weeks from earning full wages at the work
at which he was employed. * * * "
Compensation commences at the end of the second week.
§6 (2).
NEW JERSEY
"§ 11,13. No compensation first two weeks. No compensa-
tion shall be allowed for the first two weeks after injury
received, except as provided by paragraph fourteen." 1
NEW YORK
"Art. 2. § 12. Compensation not allowed for first two
weeks. No compensation shall be allowed for the first four-
teen days of disability, except the benefits provided for in
section thirteen 2 of this chapter."
'Paragraph fourteen provides for medical and hospital services and
medicines for first two weeks not exceeding fifty dollars in value.
2 Section 13 provides for medical attention, etc., for sixty days without
limit as to amount.
WAITING PERIOD 547
Washington
OHIO
"§ 1465-78; § 31 of Act of 1913. No compensation shall
be allowed for the first week after the injury is received,
except the disbursements hereinafter authorized for medical,
nurse and hospital services and medicines, and for funeral
expenses." *
OREGON
There is no waiting period under the Oregon Statute.
RHODE ISLAND
"Art. II, §4. When compensation begins. No compensa-
tion except as provided by section 12 of this Article shall be
paid under this act for any injury which does not incapacitate
the employe" for a period of at least two weeks from earning
full wages, but, if such incapacity extends beyond the period
of two weeks, compensation shall begin on the fifteenth day
after the injury."
TEXAS
"Part I. §6. No compensation shall be paid under this
Act for an injury which does not incapacitate the employe"
for a period of at least one week from earning full wages, but
if incapacity extends beyond one week, compensation shall
begin on the eighth day after injury."
WASHINGTON
There is no waiting period under the Washington stat-
ute.
1 See § 1465-89; § 42 of Act of 1913, allowing $200 for medical atten-
tion, etc., and $150 for funeral expenses.
548 bradbury's workmen's compensation law
Wisconsin
WEST VIRGINIA
"§ 30. No benefit shall be allowed for one week after the
injury is received, except the disbursement provided for in
sections twenty-seven 1 and twenty-nine.2
WISCONSIN
"§2394-9 (2). If the accident causes disability, an in-
demnity which shall be payable as wages on the eighth day
after the injured employe* leaves work as the result of the in-
jury, and weekly thereafter, which weekly indemnity shall be
as follows," etc.
"§2394-9 (2) (d). The weekly indemnity due on the eighth
day after the employe leaves work as the result of the injury
may be withheld until the twenty-ninth day after he so leaves
work; if recovery from the disability shall then have occurred,
such first weekly indemnity shall not be recoverable; if the
disability still continues, it shall be added to the weekly in-
demnity due on said twenty-ninth day and be paid therewith.
" If the period of disability does not last more than one week
from the day the employe leaves work as the result of the in-
jury, no indemnity whatever shall be recoverable."
1 Section 27 provides for medical, etc., services not exceeding in value
50.
2 Section 29 provides for funeral expenses not exceeding $75.
CHAPTER IX
MEDICAL ATTENTION
Page
ARTICLE A — Specific Provisions of Various Statutes. . . . 549
Page
Arizona 549 New Hampshire 554
California 549 New Jersey 554
Connecticut 550 New York 555
Illinois 55i Ohio 555
Iowa 551 Oregon 556
Kansas 551 Rhode Island 556
Massachusetts 552 Texas 556
Michigan 553 Washington 557
. Minnesota. , 553 West Virginia 557
Nebraska. 554 Wisconsin 558
ARTICLE A— SPECIFIC PROVISIONS OF VARIOUS STATUTES
ARIZONA
See § 72 (3), last sentence, in Chapter XI.
CALIFORNIA
"§ 15. Where liability for compensation under this act
exists such compensation shall be furnished or paid by the
employer and be as provided in the following schedule:
(a) Such medical, surgical and hospital treatment, in-
cluding nursing, medicines, medical and surgical supplies,
crutches and apparatus, as may reasonably be required at the
time of the injury and within ninety days thereafter, to cure
and relieve from the effects of the injury, the same to be
provided by the employer, and in case of his neglect or refusal
seasonably to do so, the employer to be liable for the reason-
able expense incurred by or on behalf of the employe1 in pro-
viding the same."
The ninety day period during which the employer was
required, under the Roseberry Act of 1911, to furnish medical
549
550 Bradbury's workmen's compensation Law
Connecticut
and surgical treatment was held to start from the time of
disability, regardless of the time of the injury. Stevens v.
Pacific Telephone and Telegraph Co., California Industrial
Accident Board, Oct. 22, 1912. In the last-mentioned case
there was an opinion by Commissioner Morrison, in which
he contended that the liability for medical attention began
at the time of theMnjury and ceased ninety days thereafter.
See a similar ruling under the Michigan Act under the
title Michigan in this Chapter.
Under the Roseberry Act of 1911 it was held that to
recover medical and surgical expenses incurred, the appli-
cant must show the necessity for such treatment; that the
employer, after notice, had refused or neglected to furnish
the same; or that the treatment offered was not suitable;
and the reasonable value of the treatment procured by the
applicant. Christy v. Standard Oil Co., California Industrial
Accident Board, May 10, 1912.
CONNECTICUT
"Part B. § 7. Medical and Surgical Care. The employer
shall provide a competent physician or surgeon to attend any
injured employe1 during the thirty days immediately follow-
ing the injury, as such injury may require, and in addition
shall furnish such medical and surgical aid or hospital service,
during such thirty days, as such physician or surgeon shall
deem reasonable or necessary. In the event of the failure of
the employer promptly to provide such physician or surgeon
or such medical or surgical or hospital service, during any
portion of such thirty days, the injured employe" may provide
such physician or surgeon or medical or surgical or hospital
service at the expense of the employer. Or, at his option,
the injured employe" may refuse the medical, surgical, and
hospital service provided by his employer and provide the
same at his own expense. If it shall appear to the commis-
sioner that an injured employe" has refused to accept and failed
to provide such reasonable medical, surgical, or hospital care,
all rights of compensation under this act shall be suspended
MEDICAL ATTENTION 551
Kansas
during such refusal and failure. The pecuniary liability of
the employer for the medical, surgical, and hospital service
herein required shall be limited to such charges as prevail in
the same community for similar treatment of injured persons
of a like standard of living when such treatment is paid for
by the injured persons." .
ILLINOIS
"§ 8. The amount of compensation which shall be paid to
the employe for an injury not resulting in death shall be:
(a) The employer shall provide necessary first aid medical,
surgical and hospital services; also medical, surgical and
hospital services for a period not longer than eight weeks,
not to exceed, however, the amount of $200.00. The employe
may elect to secure his own physician, surgeon or hospital
services at his own expense."
IOWA
"§ 10. (6) At any time after an injury and until the
expiration of two weeks of incapacity, the employer, if so
requested by the workman, or any one for him, or if so
ordered by the court or Iowa Industrial Commissioner, shall
furnish reasonable surgical, medical and hospital services
and supplies, not exceeding one hundred ($100.00) dol-
lars."
KANSAS
In case of the death of the workman without leaving any
dependents the employer must pay "the reasonable ex-
pense of his medical attendance and burial, not exceeding
one hundred dollars." § 11 (a) (3). There are no other
provisions for medical attention in the Kansas Stat-
ute.
552 bradbury's workmen's compensation law
Massachusetts
MASSACHUSETTS *
"Part II, § 5. During the first two weeks after the injury,
the association shall furnish reasonable medical and hospital
services, and medicines when they are needed."
If the workman* dies without dependents the association
shall pay the reasonable expense of the last sickness and
1 All fees for services under the Act should be based upon the rate which
would ordinarily be charged the injured workman were he to pay the bill
himself. In other words, charges by hospitals, physicians, and surgeons
should not be any higher under the Workmen's Compensation Act, with
the insurance companies paying the bills, than if the injured employe1 were
paying them. This principle was established in view of the fact that ex-
cessive charges of all kinds add to the burden imposed upon employers
by keeping rates of insurance on a higher level, or tending to increase them.
The justice of this rule is generally recognized and it is only in occasional
instances that it is violated. Bulletin No. 2, Mass. Indus. Ace. Bd.,
Jan., 1913, p. 11.
Under § 5, Part II, which reads "during the first two weeks after the
injury the association shall furnish reasonable medical and hospital serv-
ices," in ordinary cases the insurance company has the right to elect what
doctor and at what hospital the injured employe' shall be treated. It
may happen, as it has in many cases, that because of sufficient reasons
growing out of the nature of the injury, personal dislike of the doctor or
upon other grounds, the Industrial Accident Board will approve a reason-
able bill where services were rendered by a physician selected either by
the employe or employer. Bulletin No. 2, Mass. Indus. Ace. Bd., Jan.,
1913, p. 11.
The Massachusetts Industrial Accident Board has ruled that necessary
carriage hire, crutches, trusses, etc., if furnished during the first two weeks
after the injury, come within the meaning of "reasonable medical and
hospital services, and medicines when they are needed," as specified in
Part II, § 5 of the Act. See Bulletin No. 2, Mass. Indus. Ace. Bd.,
Jan., 1913, p. 10.
"In ordinary cases, where nursing or care is rendered by one member
of a family to another there is probably no legal liability to pay the claim.
Unless there are special circumstances in connection with the case, which
are not now apparent, the Board does not feel like approving the Bill."
Ruling of Mass. Indus. Ace. Bd., Jan. 10, 1913, in answer to an inquiry.
MEDICAL ATTENTION 553
Minnesota
burial, which shall not exceed two hundred dollars. Part II,
§8.
MICHIGAN
"Part II, § 4. During the first three weeks after the injury
the employer shall furnish, or cause to be furnished, reasonable
medical and hospital services and medicines when they are
needed."
Where serious results did not develop until more than
eight weeks after the injury, it was held that the provisions of
the statute requiring medical attention the "first three weeks
after the injury" must be construed to mean the first three
weeks after the beginning of the actual disability resulting
from the injury, as the word "injury" as used in the statute
meant such injury as produced disability. Harry Hart v.
Majestic Servself, Michigan Industrial Board, Feb, 1913.
See similar ruling under the California Act under the title
California" in this Chapter.
MINNESOTA
"Part II, § 18. Medical, surgical and hospital service.
Such medical and surgical treatment, medicine, medical and
surgical supplies, crutches and apparatus as may be reasonably
required at the time of the injury and thereafter during the
disability, but not exceeding ninety (90) days, to cure and
relieve from the effects of the injury, the same to be provided
by the employer and in case of his inability or refusal season-
ably to do so, the employer to be liable for the reasonable
expense incurred by or on behalf of the employe" in providing
the same; provided, however, that the total liability under
this section shall not exceed the sum of one hundred dollars
($100.00) in value; except that the court may, during said
period of ninety (90) days, upon necessity being shown there-
for, require the employer to furnish such additional medical,
surgical and hospital treatment and supplies as may be rea-
sonable, which, together with any such sums or relief there-
u
554 bradbury's workmen's compensation law
New Jersey
tofore furnished shall not exceed in all two hundred dollars
($200,00) in value."
NEBRASKA
"Part II, § 20. Medical aid. During the first twenty-one
days after disability begins the employer shall be liable for
reasonable mfldical and hospital services and medicines as and
when needed, not however to exceed two hundred dollars in
value, unless the employe" refuses to allow them to be furnished
by the employer; provided, however, that where the injured
employe" refuses or neglects to avail himself of such medical
or surgical treatment, the employer shall not be liable for any
aggravation of such injury due to said neglect or refusal."
NEW HAMPSHIRE
In case of death without leaving dependents medical
attendance and funeral expenses not to exceed one hundred
dollars. § 6 (1) (c).
NEW JERSEY
"§ 14. Medical and hospital services first two weeks.
During the first two weeks after the injury the employer shall
furnish reasonable medical and hospital services and medi-
cines, as and when needed, not to exceed fifty dollars1 in value,
unless the employe" refuses to allow them to be furnished by
the employer. As am'd by L. 1913, c. 174, effective April 1,
1913."
Expenses of the last sickness and burial not exceeding one
hundred dollars where the injury causes death and there
are no dependents, must be paid by the employer. § II,
subd. 12 (2).
Where an employe" lost the sight of his eye by reason of
an accident which arose out of and in the course of his em-
ployment and the employer expended more than the statu-
1 Previous to the amendment in 1913, the amount allowed was $100,
MEDICAL ATTENTION 555
Ohio
tory amount for the services of a specialist and for a private
room and a private nurse at a hospital, it was held that the
employer could not be permitted to offset the amount thus
paid as against the amount due for compensation. Dikovich
v. American Steel and Wire Co., 36 N. J. Law J., 304.
NEW YORK
§ 13. Treatment and care of injured employes. The em-
ployer shall promptly provide for an injured employe* such
medical, surgical or other attendance or treatment, nurse and
hospital service, medicines, crutches and apparatus as may
be required or be requested by the employ^, during sixty days
after the injury. If the employer fail to provide the same, the
injured employe may do so at the expense of the employer.
The employ6 shall not be entitled to recover any amount ex-
pended by him for such treatment or services unless he shall
have requested the employer to furnish the same and the em-
ployer shall have refused or neglected to do so. All fees and
other charges for such treatment and services shall be sub-
ject to regulation by the commission as provided in section
twenty-four of this chapter, and shall be limited to such
charges as prevail in the same community for similar treat-
ment of injured persons of a like standard of living.
OHIO
Medical, hospital, etc., services from the State fund not
exceeding in value $200, and in case of death funeral expenses
not exceeding $150. § 1465-89; § 42 of Act of 1913.
Employers who carry their own insurance must pay the
same sums. § 1465-72; § 25 of Act of 1913.
The amount allowed for medical and hospital services
will in no case exceed such as is ordinarily charged and paid
for similar services in the community where rendered. Be
David Burns, Claim No. 3, Ohio State Liability Board of
Awards, May 22, 1912.
No allowance for nursing services will be made where such
556 bradbury's workmen's compensation law
Texas
services are rendered by a member of the family of the ap-
plicant who renders such services in connection with her
duties as housekeeper. Re David Burns, Claim No. 3, Ohio
State Liability Board of Awards, May 22, 1912.
^ OREGON
" § 23. The Commission shall have authority to provide,
under uniform rules and regulations, first aid to workmen
who are entitled to benefits hereunder, together with trans-
portation, medical and surgical attendance and hospital
accommodations for injured workmen at an expense not ex-
ceeding two hundred and fifty dollars ($250) in any one case,
and to contract therefor in its discretion. The Commission
may in its discretion authorize employers to furnish or provide,
at the expense of the Commission and upon terms fixed by
it, such transportation, attendance and accommodations;
provided, however, that all such transportation, attendance
and accommodations shall be at all times subject to the
supervision and control of the Commission."
RHODE ISLAND
"Art. II, §5. Medical aid. During the first two weeks
after the injury the employer shall furnish reasonable medical
and hospital services, and medicines when they are needed,
the amount of the charge for such services to be fixed, in case
of the failure of the employer and employe" to agree, by the
superior court."
TEXAS
"Part I, § 7. During the first week of the injury the asso-
ciation shall furnish reasonable medical aid, hospital services
and medicines when needed, and if it does not furnish these
immediately as and when needed, it shall repay all sums
reasonably paid or incurred for same, provided, reasonable
notice of injury shall be given to the said association, and this
MEDICAL ATTENTION 557
West Virginia
provision requiring notice shall apply to all subsequent sec-
tions of this Act providing for compensation.
WASHINGTON
Section 24, subd. 4, of the Washington Act provides that
the Commission shall "Supervise the medical, surgical and
hospital treatment to the intent that same may be in all
cases suitable and wholesome." There is no direct provision
in the Washington Act, however, that the cost of medical
attention shall be paid by the Commission.
In a note to the copy of the Act issued by the Industrial
Insurance Commission of Washington in 1912, it is stated:
"There is no fund or provision for payment of charges for
ambulance, physician, surgeon, hospital, nurse, medicine
or surgical appliances. The 'first aid' provision was stricken
out from the proposed Act before passage by the Legisla-
ture."
WEST VIRGINIA
"§27. The commission shall disburse and pay from the
fund for such injury to such employes as may be entitled
thereto hereunder such amounts for medical, nurse and hos-
pital services and medicines as it may deem proper, not,
however, in any case to exceed the sum of one hundred and
fifty dollars in addition to such award to such employes,
payment to be made to the employe^ or to the persons who
may have furnished the service and supplies, or to the persons
who may have advanced payment for same, as to the com-
mission shall deem proper; provided, that in case any injured
employe" be entitled, under contract connected with his em-
ployment or otherwise, to hospital or medical service without
further charge to him, no payment shall be made out of the
workmen's compensation fund for hospital or medical serv-
ice."
558 bradbury's workmen's compensation law
Wisconsin
WISCONSIN
"§ 2394-9. Where liability for compensation under Sections
2394-3 to 2394-31, inclusive, exists, the same shall be as
provided in the following schedule:
"(1) Such medical, surgical and hospital treatment, medi-
cines, medical%nd surgical supplies, crutches, and apparatus,
as may be reasonably required at the time of the injury and
thereafter during the disability, but not exceeding ninety days,
to cure and relieve from the effects of the injury, the same to
be provided by the employer; and in case of his neglect or
refusal seasonably to do so, the employer to be liable for the
reasonable expense incurred by or on behalf of the employe"
in providing the same."
A son of the applicant, a messenger in the State Senate,
cut his hand while handling a glass water bottle. He lost
no wages as the result of the accident, but his father incurred
an expense of $22 in furnishing medical treatment. It was
held that the State should pay for the medical treatment.
Frank C. Niebuhr v. State of Wisconsin, Wis. Indus. Com.,
April 24, 1913.
CHAPTER X
FUNERAL EXPENSES
Page
ARTICLE A — Specific Provisions of Various Statutes 559
Page
Arizona 559 Nevada 561
California 559 New Hampshire 561
Connecticut 560 New Jersey 561
Illinois 560 New York 562
Iowa 560 Ohio 562
Kansas 560 Oregon 562
Maryland 560 Rhode Island 562
Massachusetts 560 Texas 562
Michigan 561 Washington 562
Minnesota 561 West Virginia 563
Nebraska 561 Wisconsin 563
ARTICLE A— SPECIFIC PROVISIONS OF VARIOUS STATUTES
ARIZONA
"The personal representative may pay out of said fund
the reasonable and necessary expenses of medical attendance
and burial of the decedent. If the workman leaves no widow,
children, or other dependents, then the employer shall pay
the reasonable expenses of medical attendance upon the
decedent and also provide and secure his burial in a proper
cemetery, which may be chosen by the friends of the de-
cedent." § 72, subd. 3 of Act of 1913; § 8, subd. 3 of Act
of 1912.
CALIFORNIA'
"If the deceased employ^ leaves no person dependent
upon him for support, the death benefit shall consist of the
reasonable expenses of his burial not exceeding one hundred
559
560 bhadbury's workmen's compensation law
Massachusetts
dollars and such further death benefit as may be provided
bylaw." §15,(6), (3).
CONNECTICUT
"For burial expenses one hundred dollars." § 9, (a).
ILLINOIS
If no amount is payable under the act to dependents,
"a sum not to exceed one hundred and fifty dollars for burial
expenses." §7, (d).
IOWA
"The employer shall in addition to any other compensa-
tion pay the reasonable expense of the employe's last sick-
ness and burial not to exceed one hundred dollars ($100.00).
If the employe1 leaves no dependents this shall be the only
compensation." § 10, (c).
KANSAS
If the deceased workman leaves no dependents the em-
ployer must pay "the reasonable expenses of his medical
attendance and burial, not exceeding one hundred dollars."
§ 11, (o), (3).
MARYLAND
"If the employe1 leaves no dependents, then the reason-
able expenses of his medical attendance shall be paid, and
in addition burial expenses not less than seventy-five dollars
nor more than one hundred dollars." § 5, subd. I, (c).,
MASSACHUSETTS
"If the employe1 leaves no dependents, the association shall
pay the reasonable expense of his last sickness and burial,
which shall not exceed two hundred dollars." Part II, § 8.
FUNERAL EXPENSES 561
New Jersey
MICHIGAN
"If the employe leaves no dependents the employer shall
pay, or cause to be paid as hereinafter provided, the rea-
sonable expense of his last sickness and burying, which shall
not exceed two hundred dollars." Part II, § 8.
MINNESOTA
If there are no dependents the employer must pay the
"expense of last sickness and burial not exceeding one
hundred dollars ($100.00), in addition to the medical and
hospital services and expenses provided by section 18." § 14,
(16).
NEBRASKA
In all cases whether or not there be dependents, "the
reasonable expenses of the last sickness and burial, not
exceeding one hundred dollars, without deduction of any
amount theretofore paid for compensation or for medical
expenses, shall be paid to his dependents, or if there be no
dependent, then to the personal representatives of the de-
ceased." § 22, (3).
NEVADA
Burial expenses not to exceed $125 are allowed in all cases.
§25, (a), (6).
NEW HAMPSHIRE
In case of death without leaving dependents medical
attention and funeral expenses not exceeding one hundred
dollars. § 6, (1), (c).
NEW JERSEY
Where there are no dependents, the expenses of the last
sickness and burial, not exceeding one hundred dollars 1
must be paid by the employer. § 2, subd. 12, (2).
1 The amount was reduced from $200 to $100 in the revision of 1913.
36
562 Bradbury's workmen's compensation law
Washington
NEW YORK
"Reasonable funeral expenses not exceeding one hundred
dollars." Art. 2, § 16, subd. 1.
OHIO
"If there are no dependents, the disbursements from the
state insurance fund shall be limited to the expenses pro-
vided for in section forty-two hereof." § 1465-82; § 35 of
Act of 1913.
"In case death ensues from the injury, reasonable funeral
expenses shall be disbursed and paid from the fund in an
amount not to exceed the sum of one hundred and fifty
dollars." § 1465-89; §42 of Act of 1913.
OREGON
"Where death results from the injury and expenses of
burial shall be paid in all cases not to exceed one hundred
dollars in any case." § 21, (a).
RHODE ISLAND
"If the employe" dies as a result of the injury leaving no
dependents at the time of the injury, the employer shall pay,
in addition to any compensation provided for in this act
the reasonable expense of his last sickness and burial, which
shall not exceed two hundred dollars." Art. II, § 9.
.,.- TEXAS
"If the deceased employe leaves no legal beneficiaries, or
creditors, the association shall pay all expenses incident to
his last sickness, and in addition a funeral benefit not to
exceed one hundred dollars." Part I, § 9.
WASHINGTON
Expenses of burial, not to exceed $75, shall be paid in all
cases of death. § 5 (a).
FUNERAL EXPENSES 563
Wisconsin
WEST VIRGINIA
"In case death ensues from the injury, reasonable funeral
expenses, not to exceed seventy-five dollars, shall be paid
from the fund to the personal representative of the employ!,
or to such other person as shall have advanced the same,
in addition to such award to the employe's dependents."
§29.
WISCONSIN
"If the deceased employe leaves no person dependent
upon him for support, and the accident proximately causes
death, the death benefit shall consist of the reasonable ex-
pense of his burial, not exceeding $100." § 2394-9, (4), (d).
CHAPTER XI
DEATH BENEFITS
Article A — Introduction 565
Page
1. In general 565
2. Presumption of death ,
from absence 566
3. When death occurs af-
ter COMPENSATION HAS
BEEN PAID FOR A TIME . . 567
4. Estoppel by payment of
compensation before
death of right to de-
ny liability therefor
after death 567
Who are Dependents 567
Article B
Page
L Introduction . , 567 10.
2. Definition of word "de-
pendent" 571
3. Necessity of administer- 11.
ing on estate of work- 12.
man 574 13.
4. Dependent of more than
one workman 575 14.
5. Partial and total de-
pendents OF SAME 15.
workman 575
6. Parents 575
7. Total dependency of 16.
mother on one son 17.
when other sons are 18.
LIVING 576
8. Mother, whose husband 19.
is living, as dependent
of son 576
9. Widow and children de- 20.
pendents of father
when other children
contribute to support
of family 577 21.
564
Wife separated from
husband before his
DEATH 577
Posthumous child 580
Illegitimate children . . 581
Posthumous illegiti-
mate child 581
Parents of illegitimate
children 581
Mother of illegitimate
child as dependent of
father of child 581
Inmate of workhouse.. 582
Aliens 582
Question of dependency
is one of fact 583
Amount due partial de-
pendent is a question
of fact 583
Dependents receiving
other income because
of death of work-
man 583
Right of dependents in-
DEATH BENEFITS
565
In general
Page
dependent of that op
deceased 584
22. Claim bt dependents
when compensation to
workman terminated
before death 584
23. Claim for compensation
Page
BY PERSONAL REPRESEN-
TATIVE OF DECEASED DE-
PENDENT 585
24. Orphan whose mother
died prior to death of
workman, compensa-
tion under quebec act 586
Article C — Specific Provisions of Various Statutes, with
Notes of Adjudicated Cases 587
Page
Arizona 587
California 588
Connecticut 594
Illinois 596
Iowa 597
Kansas 599
Maryland 601
Massachusetts 602
Michigan 606
Minnesota 609
Nebraska 612
Nevada 616
New Hampshire 617
New Jersey 618
New York 621
Ohio 623
Oregon 625
Rhode Island 627
Texas 630
Washington 631
West Virginia 634
Wisconsin 636
ARTICLE A— INTRODUCTION
1. In general.
There is a great variety of provisions in the various stat-
utes on the questions of the amounts and the persons to
whom paid in death cases. The statutes generally, although
not universally, fix the death benefit payable to dependents
by the wages earned by the workman prior to his death.
In Washington and Oregon the compensation is a fixed
amount, irrespective of the wages which the employe1 earned.
The manner of arriving at the amount of wages upon
which the compensation is based, in both death and dis-
ability cases, is explained in Chapter XIII. The question
of who are dependents is discussed in Article B of this
Chapter.
566 bradbury's workmen's compensation law
Presumption of death from absence
A number of questions of general interest are discussed
in this Article, including a consideration of the decisions
which have been made under the British Act. Under the
title of each State will be found noted such decisions as have
thus far been made by the American courts, or the ad-
ministrative boards or commissions of the various States,
particularly applicable to the compensation acts of those
States.
2. Presumption of death from absence.1
The lapse of twelve months during which a ship has not
been heard from, after which, under § 174 of the British
Merchant Shipping Act of 1894, she is deemed to have been
lost with all hands, is not a condition precedent to a claim
for compensation under the Workmen's Compensation Act,
where by the ordinary rules of evidence a seaman would be
deemed to have been lost at sea with his ship. An applica-
tion for compensation therefore, may be made, notwith-
standing twelve months have not elapsed from the time when
the ship was last heard from. Maginn v. Carlingford Lough
Steamship Co. (1909), 43 Irish L. T. 123; 2 B. W. C. C.
224.
1 Most of the States have laws providing for temporary administration
on the estates of those who have been absent for a certain length of time
without having been heard from. Under the rule laid down, in the case
in the text it is not necessary to await the statutory period in all cases
even though there is no direct evidence of death. There must, however,
be common-law evidence which raises a presumption of death from the
circumstances disclosed. This is really nothing more than saying that
there must be sufficient common-law evidence from which the court can
find as a fact that the workman is dead. It is doubtful whether the com-
pensation acts of the various States apply to the crews of ships engaged
in foreign commerce. This is a subject over which" Congress might take
complete control, although it has not done so up to the present time, so
far as compensation laws proper are concerned. See discussion of extra
territorial effect of compensation laws, ante, page 34, especially at
page 45.
DEATH BENEFITS 567
Who are dependents — Introduction
3. When death occurs after compensation has been paid
for a time.
An employe in receipt of compensation returned to work
and earned more than he did before the accident. Later he
died as a result of the injury. It was held that his depend-
ents were entitled to compensation allowed for death, less
the sums paid to the workman in his lifetime. Williams v.
Vauxhall Colliery Co. (1907), 23 T. L. R. 591; 9 W. C. C.
120. Dependents are entitled to compensation, although
the deceased may have been in the receipt of weekly pay-
ments under the Act. O'Keefe v. Lovatt (1901), 4 W. C. C.
109. This subject is governed by specific statutory provi-
sions in most of the States. A number of decisions will be
found in the notes to the statutes in this chapter. Where
the statute does not cover the subject in a particular State
it would seem that the right of the dependents is separate
and distinct from that of the workman himself. See Howell
v. Bradford & Co. (1911), 104 L. T. 433; 4 B. W. C. C. 203.
Whether or not in such a case the limitation in regard to the
maximum payment applies, depends upon the wording of
the statute.
4. Estoppel by payment of compensation before death
of right to deny liability therefor after death.
Where an employer has paid compensation up to the time
of the death of a workman under a registered agreement,
he is not estopped, after the death .of the workman, from
contending that the death was due to disease and not to the
accident. (House of Lords) Cleverley & Others v. Gas Light
& Coke Co. (1907), 1 B. W. C. C. 82.
ARTICLE B— WHO ARE DEPENDENTS *
1. Introduction.
Some of the acts specifically provide the persons who shall
be conclusively presumed to be dependent upon a deceased
1 An instructive article, on the question discussed jn this article, under
568 bradbury's workmen's compensation law
Who are dependents — Introduction
workman. Others provide that certain relatives come
within the operation of this conclusive presumption while
the dependency of others is a question of fact which must
the British Workmen's Compensation Act, by Wilfrid Cotton, LL. B.,
was recently published in The Review (London) and reprinted in The
Market World and Chronicle (N. Y.). The entire article is reproduced
below:
"The word 'dependent,' for the purposes of the Workmen's Compen-
sation Act [of Great Britain] of 1906, is very carefully defined by Section 13
of that Act, but nevertheless a great number of questions have arisen and
a great many cases have had to be decided under it.
"The person who may claim compensation on the death of a workman
as a dependent must, in the first place, be actually dependent in fact,
wholly or in part, upon the earnings of the workman at the time of his
death, or but for the incapacity due to the accident would have been so
dependent. But besides being so dependent in fact, the claimant must
also bear one of several specified relationships to the deceased workman ;
the law requires him to satisfy the court upon both these points. Those
relationships are as follows: Wife, husband, parent, grand-parent, child,
grand-child, step-parent, step-child, illegitimate parent or grand-parent;
' illegitimate child or grand-child, brother, sister, half-brother, half-sister.
If the claimant is actually dependent on the deceased workman, but does
not bear one of these relationships to him, he cannot recover; nor on the
other hand can he recover if he does bear one of the relationships, unless
he is also dependent in fact, or would have been but for the incapacity
due to the accident.
"We will first deal with the relationship part of the subject, and the
remarks upon this may be very brief. It has been held that a child who is
born after the death of the workman is a ' child' of that workman within
the meaning of the Act, and may consequently be a dependent. On the
analogy of this rule, which was laid down in 1907 in the case of Williams v.
The Ocean Coal Company, Limited, it has been held that if a workman has
admitted that he is the father of an illegitimate child who is not yet born
at the time of the death, the child when it is born will be a dependent
and may claim compensation accordingly. This proposition was decided
in 1909 by Schofield v. The Orrell Colliery Company, Limited, and indeed
it followed logically from the words of the Act with regard to illegitimate
children, coupled with the decision of Williams v. The Ocean Coal Com-
pany, Limited, with regard to children born after the death of their father
(called by the lawyers 'posthumous children'). The step-father of an
illegitimate child does not, however, come within the rule, which has not
DEATH BENEFITS 569
Who are dependents — Introduction
be proved. Still others require proof of dependency in all
cases. The statute' must be consulted in each instance.
Questions not infrequently arise, however, which are not
specifically covered by the statute. Such as are of general
been extended beyond the relationships of parent and child and grand-
parent and grand-child. If, therefore, a workman was a bachelor and an
illegitimate child, the only dependents he can possibly have are a parent
or grand-parent and his own illegitimate child, if any.
" Now let us turn to the subject of actual dependency, which is a much
more difficult and complicated matter.
"The general rule is that Dependency is to be decided on the facts of
each particular case, but the High Court has on several occasions limited
this rule by deciding that, under certain circumstances, a presumption of
law arises which substitutes rules of law for the balancing of facts. Speak-
ing generally, however, the question is one purely of fact. Thus in the
case of Orrell Colliery Company v. Schofield, in the House of Lords, the
Lord Chancellor said: 'The real practical matter is whether assistance
has been given or could reasonably have been expected from the victim
of the accident.' In another case a father was claiming compensation
for the death of his son. The father was in the workhouse at the time of
the accident, and the son, who was unmarried and in receipt of good wages,
had never contributed anything to his upkeep, either voluntarily or com-
pulsorily. It was decided that the father could recover nothing, on the
ground that, in the words of the Master of the Rolls, 'a person is not in
a state of actual dependence on his relatives where he is being maintained
by the Guardians and not in any sense by them. It makes no difference
to him from a pecuniary point of view whether they live or die.' It will
be noticed that this case is particularly strong, because the Guardians
could have obtained an order against the son for contributions towards
his father's maintenance.
"The principle that dependence is a question of facts finds no opposi-
tion, except as regards the relationship of husband and wife, but from
some of the cases decided on that relationship certain difficulties have been
alternately raised and disposed of.
"Covlthard v. Consett Iron Company, Limited, was decided in 1905,
and the facts were that the husband had quarrelled with his wife and left
her four months before the accident, and had never afterwards contri-
buted anything towards her maintenance. She had lived for one week
during that time in the workhouse, and for the remainder had subsisted
on casual earnings and on charity. The Court of Appeal held that she
was wholly dependent on her husband's earnings. The duration of the
570 bradbxjky's workmen's compensation law
Who are dependents — Introduction
interest have been prefixed, in this Article, to the discussion
of the particular acts of the various States.
Under § XIII of the British Act dependency must be
proved in all cases. The Act provides merely that certain
desertion was short, and the wife swore that she was daily expecting him
to return to her, but these facts are of much less importance in view of
Lord Justice MatheVs judgment, in which he says, 'The case has been
argued by the employers on the basis that the evidence showed that the
husband left his wife without any intention of ever returning to her. I
am inclined to think that even if that were made out the position of the
wife would not have been affected, and that she would not cease to be
dependent on his earnings.' This remark cannot be considered sound
in view of later decisions, however, but it was not necessary for the de-
cision of the case; the case is consistent with the view that the wife is not
dependent if there was a 'final repudiation by the husband of the obliga-
tion to maintain his wife.' This view is supported by the words of Lord
Justice Romer in the same case, when he said: 'She was not able fully
to support herself by her own exertions, and she had no income of her own.
She was therefore clearly dependent for her maintenance on somebody.
She had a husband living who was then earning wages, and whose duty
it was to support her. In these circumstances I think it ought to be in-
ferred that she was dependent on his earnings, unless there are any facts
which show that she had ceased to look to his earnings for mainte-
nance. * * * Did she treat him as having passed away from her
life?'
"Another case which chiefly differs from the last in the fact that there
was a period of nearly two years, during which the husband had contri-
buted nothing towards his wife's maintenance, is Williams v. The Ocean
Coal Company. In that case the present Master of the Rolls said that the
presumption of a wife's dependency 'is not rebutted by the mere fact
of desertion, or by the fact that the husband was not contributing towards
his wife's maintenance at the time of his death. It is not sufficient to
rebut the presumption that the wife was supported by her relatives out
of kindness, or that she was earning small sums by domestic service or
otherwise, or that she was in a workhouse at the time of his death. It
can only be rebutted by evidence. * * * that this presumption * * *
is in fact rebutted.' What facts would be sufficient to rebut the presump-
tion he does not state, but it would seem that the evidence necessary
consists of one or both of the following facts:
"1. That the wife was able to support herself, and was supporting
herself,
DEATH BENEFITS 571
.Definition of word "dependent"
members of the workman's family are entitled to compensa-
tion upon proving such dependency.
2. Definition of word " dependent."
The expression "dependent" means dependent for the
ordinary necessaries of life for a person of that class and
"2. A final repudiation by the husband of the obligation to maintain
his wife, the repudiation being acquiesced in. by the wife.
"In Turner's Limited v. Whitefield, the facts were somewhat similar
except that the husban'd and wife had separated by mutual consent.
Here it was decided that there was no dependency. It almost seems that
the court took into consideration the fact the separation was not wholly
caused by the delinquency of the husband, but as the burden of compen-
sation falls upon the employer and not on the workman we can hardly
believe that the moral responsibility of the husband could have had any
weight. In any case it seemed that there was not intention on the part of
either of the spouses that they should ever again live together, or that
the wife should ever again be supported by the husband; consequently
one of the factors enumerated above, as sufficient to rebut the presump-
tion, existed. The other factor, namely, ability on the wife's part to sup-
port herself without assistance from her relatives, did not exist, how-
ever, so that probably either of the two factors alone is sufficient to
rebut it.
"In Lindsay v. McGlashen & Son, Limited, one is inclined to have a
stronger suspicion that the moral responsibility of the husband had its
weight with the court. The essential difference between that case and
the one where the wife recovered compensation was that the wife had
voluntarily left her husband. She had to rely partly on the charitable
doles of relatives for her maintenance and was unable to support herself
entirely by her own exertions. So long a time had elapsed, however, be-
tween the separation and the accident, that it might be inferred that
there was no intention of resuming actual dependency on the husband,
and the case is therefore not inconsistent with the rule we have evolved.
The latest important case on the point, Keeling v. The New Monckton
Colleries, Limited, is mentioned later on, when its consideration will serve
a double purpose.
"The result of these cases is therefore as follows: There is a presump-
tion of law that a wife is wholly dependent upon her husband at the time
of his death unless the circumstances come under one of the two headings
already given. Apart from this, dependency is a question of fact in each
particular case. So far a consistent rule that may still be considered sub-
572 bradbtjry's workmen's compensation law
Definition of word "dependent"
position in life, taking into account the financial and social
position of the recipient. Whether a person is or is not
dependent on a workman's earnings is a question of fact.
Simmons v. White Bros. (1899), 80 L. T. 344; 1 W. C. C. 89.
stantially correct may be evolved, but strange developments were to fol-
low which have since been disposed of.
"The case of Senior v. Fountains & Burnley, Limited, decided in 1907,
involved a somewhat different question, namely, whether the presumed
dependency upon the husband's earnings was total or only partial. Par-
tial dependency was admitted, but the family funds- consisted of the earn-
ings of the husband and three sons. It was held that there was a pre-
sumption of total dependency on the husband's earnings, and the wife
was awarded compensation on his death accordingly. The decision was
followed in the subsequent case of McLean v. The Moss Bay Iron Com-
pany, decided in 1909, where the wife was maintained by the husband and
a son, jointly, as before, but it was the son who was killed. The court
held that as the wife was wholly dependent upon her husband by a pre-
sumption of law, she could not at the same time be partially dependent
upon her son.
"This last case, however, was overruled by the House of Lords in 1910
by the celebrated case of Hodgson v. The West Stanley Colliery Company,
which laid down that if a woman is in fact maintained by her husband,
and one or more sons jointly, and one of the contributing sons is killed,
she can claim compensation as having been partly dependent upon that
son's earnings. The act prescribes a limit to compensation of £300, but
the House of Lords decided that she may recover that amount in a proper
case in respect of the death of the husband, and also something in re-
spect of the death of a son on whom she was partly dependent. That
£300, however, was not payable on the footing of total dependency, for
there was held to be no presumption of total dependency. In the case
under consideration the husband and two sons who contributed to the
family income were all killed in one terrible accident, and the amount of
compensation payable in respect of each was in issue. The Lord Chan-
cellor (Lord Lorebum) said in his judgment: 'The act does not say that
a -dependent cannot receive more than the maximum, but only that the
employer shall not be required to pay more than the maximum in respect
of one workman's death. * * * It was argued that the mother was in
the eye of the law wholly dependent upon the deceased husband, and
being so could not possibly in any degree be dependent upon her two de-
ceased sons; for that would involve a logical contradiction. * * * In
this argument I am told that I am by law required to affirm something
DEATH BENEFITS 573
Definition of word "dependent"
The test of dependency is not whether the family could
support life without the contributions of the deceased, but
whether they depended upon them as part of their income
or means of living. Howells v. Vivian and Sons (1901),
as the truth which every one knows to be entirely false. * * * The
mother was not in law wholly dependent upon her deceased husband.'
He goes on to say, however, that 'her loss by his death may be £300,
although she was only partially dependent upon him.'
"We may consider that this case makes the law hang consistently to-
gether, for it not only decides that compensation may be recovered for
the death of a maintaining son, although the father is also supporting the
wife, but it establishes the converse rule that if it is the husband who is
killed it is not necessarily presumed that the wife was wholly dependent
upon his earnings — thus overruling the case of Senior v. Fountains as
well as McLean v. The Moss Bay Iron Company.
"We have postponed the consideration of the most important case of
all, Keeling v. The New Monckton Collieries, Limited, until the end, be-
cause it is the case that finally settles the law of the whole subject of a
wife dependency, and brings into line the two branches of it dealing re-
spectively with wives living apart from and not maintained by their hus-
bands, and women who are supported by husband and sons jointly.
"This great case was decided by the House of Lords, in 1911, and
although it in some formal ways overrules the earlier cases quoted above,
yet it conforms to the rule I have evolved from them in essence if not in
form. It decides that dependency is in every case a question of fact, and
depends on no presumption or rule of law; but we cannot gather from it
that the old rules of presumption are now of no practical utility. It over-
rules the old contention that there is a presumption which may with
difficulty be rebutted, but the facts necessary to establish or refute a con-
tention of dependency remain as we have stated, thus:
"A wife who was not being supported by her husband at the time of
the accident will not be considered to have been wholly or partly de-
pendent upon his earnings if she was maintaining herself out of her own
earnings, or if the separation amounted to a final repudiation by the hus-
band, acquiesced in by the wife, of his legal obligation to maintain her.
Thus in weighing the evidence we have to consider such facts as the dura-
tion of the separation, the ability of the wife to maintain herself, the
probability of the husband's ever again contributing to her support volun-
tarily or compulsorily, and any effort she is making to enforce her rights
against him.
"A few quotations from the judgments in this important case should
574 bradbury's workmen's compensation law
Necessity of administering on estate of workman
85 L. T. 529; 4 W. C. C. 106. A person may be a dependent
of a deceased workman even though such workman has
only sent money at irregular intervals and in irregular
amounts. Follis v. Schaake Machine Works (1908), 13 B. C.
471; IB. W. C. C. 442.
3. Necessity of administering on estate of workman.
It is not necessary for a dependent to take out letters of
administration to the estate of deceased. Clatworthy v.
R. & H. Green (1902), 86 L. T. 702; 4 W. C. C. 152. This
is a matter which is regulated by statute. Administra-
tion is dispensed with in some of the States, but not
in all.
be made to show the correctness of this statement of the law. Thus the
Lord Chancellor said that 'When, as here, the wife had not been sup-
ported for twenty years, and in no sense relied upon the workman for any
help, I think that there was no evidence of dependency.' And Lord
Atkinson made the following remarks to explain his decision: ''She never
made any claim upon him. * * * It may be that her husband was in
law bound to maintain her, but it is by the discharge of this obligation,
not by its mere existence in law, that a husband supports and maintains
his wife. * * * It is only necessary to read the provisions of the statute
of 1906, and its schedule, to see that the sums to be awarded under it are
intended to be compensation for the pecuniary loss sustained by reason
of the loss or cessation of the workman's power of earning. * * * The
existence of the legal obligations [to support a wife], the probability that
it will be discharged, either voluntarily or under compulsion, the proba-
bility that the wife will ever enforce her right if the obligation be not
discharged voluntarily, are all matters proper to be considered.' Lord
Robson said as follows: 'The wife does not cease to be dependent upon
her husband because he refuses to recognize or perform his obligations,
and succeeds in throwing the burden of her maintenance, for the time
being, upon her parents or friends, or on the State. * * * The circum-
stances, however, are wholly different where the wife herself has for years
clearly asserted and definitely maintained her complete independence of
her husband.'
"We may consider, therefore, that in the case of husband and wife
as in all other cases, dependence is a question of fact to be decided on the
principles set out above;"
DEATH BENEFITS 575
Parents
4. Dependent of more than one workman.
One person can be the dependent of more than one work-
man and in case of death of two or more workmen such de-
pendent can recover more than the maximum amount al-
lowed for the death of one workman. (House of Lords),
Hodgson v. Owners of West Stanley Colliery (1910), 102 L. T.
194; A. C. (H. L.) 229; 3 B. W. C. C. 260. In the last-
mentioned case two sons and their father, out of a family
of ten, were killed in a mine disaster. The wages of all
three had gone into a common fund to support the family
consisting of a mother and six children besides those who
were killed. None of the other children were wage earners.
It was held that the widow was entitled to a death benefit
by way of compensation not only for the death of her hus-
band but also for the death of each of the two sons.
5. Partial and total dependents of same workman.
Partial dependents may be entitled to compensation al-
though there are others who were wholly dependent on the
deceased workman. Robinson v. Anon (1904), 6 W. C. C.
117.
6. Parents.
A workman who was drowned at sea had been accustomed
in previous employments to give money regularly to his
parents, who, with their family, claimed compensation as
dependents of the deceased. The judge found that the
family were partly dependent on the workman's earnings,
and awarded compensation. On appeal it was held that
dependency is a question of fact, and that there was evidence
to support the decision. Turner and Others v. Miller and
Richards (1910), 3 B. W. C. C. 305. A father claimed com-
pensation as a dependent of his son who had paid consider-
able sums to the family fund, while employed as a fisher-
man, in the years 1906, 1907, and 1908. The last payment
was made early in 1909. In the summer of that year he
576 bradbury's workmen's compensation law
Mother, whose husband is living, as dependent of son
made two voyages of a month each. He did not send any
part of his wages for these two voyages, to his father, and on
the last of these voyages he was drowned. It was held that
there was evidence to justify the County Court judge in
finding that the father was a partial dependent. Robertson
v. Hall Brothers Steamship Co. (1910), 3 B. W. C. C. 368.
The deceased was a boy of sixteen earning 8s. a week, which
he gave to his parents, they providing him with food, clothes,
etc. His father was a collier earning 25s. a week, and there
were five other children, two of whom contributed their
earnings, the one 12s. and the other 7s. 6d. a week, to swell
the common fund. It was held that the parents were de-
pendent upon the earnings of the deceased. The Main Col-
liery Co. v. Davies (1900), 80 L. T. 674; 2 W. C. C.
108.
7. Total dependency of mother on one son when other
sons are living.
A widow, who had five grown up sons and who were all
working miners, lived with one of them, the only unmarried
one, and was in fact entirely supported by his earnings at
the time of his death. It was held that she was totally de-
pendent upon the earnings of her son, notwithstanding the
other sons were able and liable to contribute to her sup-
port. Rintoul v. Dalmeny Oil Co. (1908), 45 Scotch L. R.
809; 1 B. W. C. C. 340.
8. Mother, whose husband is living, as dependent of
son.
A boy was killed. His mother was supported by her hus-
band but claimed compensation as a partial dependent
because the boy V earnings were paid into the family fund.
It was held by the House of Lords that compensation should
be awarded. McLean v. Moss Bay Haematite Iron and Steel
Co. (1910), 3 B. W. C. C. 402; following Hodgson v. Ovmers
of West Stanley Colliery, 3 B. W. C. C. 260.
DEATH BENEFITS 577
Wife separated from husband before his death
9. Widow and children dependents of father when other
children contribute to support of family.
The earnings of a father and a portion of the earnings
of three of the elder children were used to support the family-
consisting of those mentioned, a wife, and several younger
children, who did not Work. Upon the death of the father
it was held that the widow and the younger children were
wholly dependent upon the father for support, within the
meaning of the Compensation Act. Senior v. Fountains &
Burnley (1907), 23 T. L. R. 634; 9 W. C. C. 116.
10. Wife separated from husband before his death.
Where husband and wife were voluntarily living apart
and the wife was earning her own living at the time of his
death and did not receive any support from him whatsoever
prior to his death, it was held by the House of Lords, revers-
ing the Court of Appeal and County Court, that the widow
was not entitled to compensation. The rule was laid down
that the mere fact that a man in ordinary circumstances is
liable to support his wife in law, is not of itself sufficient
evidence to support a claim for compensation by his widow;
that the obligation or liability to support is not the same
as actual support. Lord Robson declared: "Money coming
to a widow under the Act is not a present in consideration
of her status; it is a payment by a third person to compen-
sate 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 married
to the deceased, the applicant was not in fact dependent
upon him." New Monckton Collieries v. Keeling (1911), 4
B. W. C. C. 332, reversing Keeling v. New Monckton Col-
lieries (1910), 4 B. W. C. C. 49. Where a woman left her
husband because of cruel treatment and had lived apart
from him and supported herself and a child for about twelve
years prior to the husband's death, it was held that she was
not a dependent and was not entitled to compensation upon
37
578 bradbtjry's workmen's compensation law
Wife separated from husband before his death
the death of the husband through accident. Lindsay v.
M'Glashen & Son (1908), 45 Scotch L. R. 559; 1 B. W. C. C.
85. A wife who had been turned out of her home by her
husband and had not been living with or supported by him
for eleven years before his death, but who had made en-
deavors to obtain support, was held to be in part dependent
upon her husband's earnings at the time of his death and
therefore entitled to compensation. Medkr v. Medler
(1908), 1 B. W. C. C. 332.
Several years before a workman's death his wife volun-
tarily left him and persistently declined to return. Her
daughter, aged 16 at the time of the death, went with the
mother. The mother was supported from property of her
own, and the daughter was supported for a time to some
extent from her own earnings, and otherwise by her mother.
The workman did not contribute. It was held that neither
the wife nor the daughter was dependent on the workman at
the time of his death. Polled v. Great Northern Railway Co.
(No. 2) (1912), 5 B. W. C. C. 620. See same case on previous
appeal (1911), 5 B. W. C. C. 115.
A workman deserted his wife and small children in 1907.
During the next two years he gave occasional small sums to
or for the children. In 1909 he went away and a decree was
obtained against him under which one small sum was taken
out of his wages. He then disappeared and successfully
evaded search until he died by accident in April, 1911. A
sum due to him for wages at the time of the accident was
paid to the widow after his death. It was held that the
children were neither totally nor partially dependent under
the Act and compensation was refused. Niddrie & Benhar
Coal Co. v. Young (1912), 49 Sc. L. R. 518; 5 B. W. C. C.
552. In the last mentioned case the court expressed doubt
of the correctness of the view stated in the case of Lee v.
Steamship "Bessie," 5 B. W. C. C. 55 that "if on the evi-
dence there is any fair probability that the legal rights
would at any future time have been actually and effec-
DEATH BENEFITS 579
Wife separated from husband before his death
tually asserted by the wife, then there is evidence of de-
pendency."
Where a husband deserted his wife seven years before he
was killed and made no provision for her support so that she
was compelled to go to the workhouse and he had made
her only two payments during the whole time amounting to
a trifling sum, it was held that the widow was not a de-
pendent and compensation was refused. Devlin v. Pelaw
Main Collieries (1912), 5 B. W. C. C. 349.
Where the deceased came to America three and a half
years before the accident, leaving his wife in Europe, and
did not return to her, but kept up a desultory correspond-
ence with her through friends, as he could not write, and
occasionally sent money to her, it was held that the hus-
band and wife were living together so that the widow was
entitled to compensation for the death of her husband.
Jelena Nevadjic v. Northwestern Iron Co., June 14, 1912;
aff'd by Supreme Court of Wis. Northwestern Iron Co. v.
Industrial Com. of Wis., 00 Wis. 000; 142 N. W. Rep.
271.
A widow living apart from but receiving support from
her husband at the time of the injury is entitled to com-
pensation. Archambault v. London Guarantee & Accident
Co., Mass. Indus. Ace. Bd.
A widow separated from her husband and not receiving
any support from him was held not to be a dependent and
not entitled to compensation. A child, however, of the
same parents, who received an average of two dollars a week
from the father was held to be partially dependent to the
extent of this contribution by the father. Bentley v. Massa-
chusetts Employes Insurance Association, Mass. Indus. Ace.
Bd. (Appeal pending to Supreme Judicial Court).
An employe' was killed on July 1, 1912. It appeared that
he had not lived with his wife since July, 1911. The evidence
indicated that there had been a quarrel and that she left
him; that he returned to her and coaxed her to come back;
580 bkadbtjby's workmen's compensation law
Posthumous child
that he had given her money and she had gone to Nova
Scotia and he told her that he would support her and the
child. There had never been any talk of legal separation
or divorce. It was held that the widow was entitled to
compensation. Forsell v. Massachusetts Employes Insurance
Association, Mass. Indus. Ace. Bd. (Appeal pending to
Supreme Judicial Court).
Where a widow and minor child had not been living with
the deceased workman for some time prior to his death, a
claim for compensation by the widow was contested by the
employer but the Board awarded compensation to the
widow. Kelly v. Peoples Outfitting Co., Mich. Indus. Ace.
Bd., Oct. 15th, 1913; The Indicator, Oct. 20, 1913, at page
417.
An employ^ was killed in the course of his employment
leaving surviving him a widow and minor child, aged twenty
months, a widowed mother, and two sisters, aged twenty-
three and eight years respectively. Some months prior to
his death he deserted his wife and child without any fault
on the part of his wife, since which time he had contributed
nothing to their support. He had never contributed any-
thing toward the support of his mother or father or of his
sisters. It was held that his minor child was wholly de-
pendent upon him for support; that his widow was wholly
dependent upon him for support; that neither his mother
nor either of his sisters was wholly or partially dependent
upon him for support. Re Laura M. Shaffer, Claim No. 41,
Ohio St. Lia. Bd. Awd., June 14, 1912.
11. Posthumous child.
A posthumous child may be a dependent of a deceased
workman and entitled to compensation. (House of Lords),
Villar v. Gilhey (1907), A. C. 139; Williams v. Ocean Coal
Co. (1907), 97 L. T. 150; 9 W. C. C. 44. An unborn child
is dependent upon the earnings of the father. Day v. Marh-
Aafn(i0O4),6W;C.C.115.
DEATH BENEFITS 581
Mother of illegimate child as dependent of father of child
12. Illegitimate children.
An illegitimate child who was taken in charge by a friend
of the mother, was held not to be a dependent of the mother
who was killed by an accident. Briggs v. Mitchell (1911),
48 Scotch L. R. 606; 4 B. W. C. C. 400. But see Schofield v.
Orrell Colliery Co. (1908), 100 L. T. 104; 2 B. W. C. C. 301,
cited in paragraph 13, below.
Where compensation is awarded to an illegitimate child,
it should not be in a sum greater than the deceased could
have been compelled by law to pay for the child's support.
Gourlay v. Murray (1908), 45 Scotch L. R. 577; 1 B. W. C. C.
335.
13. Posthumous illegitimate child.
A posthumous illegitimate child may be a dependent and
entitled to compensation for the death of the father of the
child. Schofield v. Orrell Colliery Co. (1908), 100 L. T. 104;
2 B. W. C. C. 301.
14. Parents of illegitimate children.
Neither the mother nor the putative father of an illegiti-
mate child are entitled to compensation upon the death of
the child, especially where the mother is living with and
being supported by her husband. McLean v. Moss Bay
Hematite Iron and Steel Co. (1909), 100 L. T. 871; 2 B. W.
C. C. 282.
15. Mother of illegimate child as dependent of father of
child.
The mother of an illegitimate child who has obtained an
order of filiation against the father of the child is entitled
to compensation on behalf of the child, upon the death of
the father through an accident, even though the father had
evaded payment of the amount awarded in the filiation pro-
ceeding, by changing his name and concealing his identity.
Bowhill Coal Co. v. Neish and Others (1908), 46 Scotch L. R.
582 bradbdry's workmen's compensation law
Aliens
250; 2 B. W. C. C. 253. Where a man and woman hold
themselves out to the world to be married and the man is
killed by accident, it seems that the woman and her child
may recover compensation upon sufficient evidence being
given of a common-law marriage. Fife Coal Co. v. Wallace
(1909), 46 Scotch L. R. 727; 2 B. W. C. C. 264.
If a woman is ftot legally married to a workman she is not
entitled to compensation for his death. Aldinger v. Ransome
Concrete Co., Cal. Indus. Ace. Bd., Sept. 12, 1913.
16. Inmate of workhouse.
A person in a workhouse is not necessarily dependent on
the earnings of another because that other is legally liable to
contribute to the cost of his maintenance. Rees v. Penrikyber
Navigation Colliery Co. (1902), 87 L. T, 661; 5 W. C. C.
117.
17. Aliens.
Where there is no special provision in the Act relative to
the residence of dependents, it is no objection to a claim for
compensation by dependents that they are alien residents of
a foreign country. Varesick v. British Columbia Copper Co.
(1906), 12 B. C. 286; 1 B. W. C. C. 446. A foreign workman,
while employed in a mine within the province of British
Columbia, was killed by an accident arising out of and within
the course of his employment. The dependents were alien
and resident abroad. It was held that the personal represen-
tatives of the deceased resident in the province could re-
cover compensation on behalf of the dependents. Krzus v.
Crow's Nest Pass Coal Co. (1912), 5 B. W. C. C. 727. In
the last-mentioned case the Judicial Committee of the Privy
Council reversed the Court of Appeal of British Columbia,
(1911), 4. B. W. C. C. 469.
The treaty of the United States with Italy, of 1871, does
not require that the alien non-resident dependents of a work-
man killed in the United States shall have the same right to
DEATH BENEFITS 583
Dependents receiving other income because of death of workman
recover against the workman's employer that resident citizen
dependents possess. Maiorano v. Baltimore & 0. R. Co.,
213 U. S. 268.
An appeal involving the same question in relation to the
treaty between the United States and Austria-Hungary,
in the case of Miknolas v. Empire Rubber Co., arising under
the New Jersey Act, was on the calendar of the Supreme
Court of that State in 1913, but the appeal was abandoned.
The lower court in New Jersey held that the Act did not
violate the treaty. The New Jersey Act excludes non-
resident alien dependents. Very few of the acts contain such
drastic provisions on this subject as are found in the New
Jersey Statute. Nearly all the Compensation Acts cover the
point in some form.
18. Question of dependency is one of fact.
"The question of dependency is not a question of law at
all. It is purely a question of fact." Main Colliery Co. v.
Davies (1900), A. C. 358; 1 W. C. C. 92; 2 W. C. C. 108;
Hodgson v. Owners of West Stanley Colliery (1910), A. C.
(H. L.) 229; 102 L. T. 194; 3 B. W. C. C. 260. Both of the
above cases were decided in the House of Lords.
19. Amount due partial dependent is a question of fact.
The amount due to a partial dependent is a question of
fact in each case. Littleford v. Connell (1909), 3 B. W.
C. C. 1.
20. Dependents receiving other income because of death
of workman.
Moneys coming to dependents on the death of a work-
man do not affect the question of whether or not they were
dependent upon his earnings at the time of his death. Pryce
v. Penrikyber Navigation Colliery Co. (1901), 85 L. T. 477;
4 W. C. C. 115.
584 bradbury's workmen's compensation law
Dependent's claim; death of workman after payments ceased
21. Right of dependents independent of that of deceased.
A workman was injured by accident. He gave notice of
injury, asking his employers to treat it as a notice under the
Employers' Liability and Workmen's Compensation Acts.
His employers settled with him for a lump sum, obtaining a
receipt releasing them from all liability under the Em-
ployer's Liability' Act and at common law. The workman
died and his dependents claimed under the Workmen's
Compensation Act, subject to the deduction of the sum
paid under the settlement. The County Court judge found
as a fact that there was no bona fide settlement and made
an award in favor of the dependents. It was held that the
right of the dependents was independent of, and not derived
from, that of the deceased, and that they were therefore
entitled to recover. Howell v. Bradford & Co. (1911), 104
L. T. 433; 4 B. W. C. C. 203.
The right of a widow to compensation is entirely separate
from that of her husband and the signing of a release at
common law by him prior to his death does not operate to
deprive her of her claim for compensation under the Massa-
chusetts Act. Cripps v. Aetna Life Ins. Co., Mass. Indus.
Ace. Bd. (Appeal pending to Supreme Judicial Court).
An insurer does not have the right to deduct from the
compensation due to the widow the additional compensa-
tion paid to an employe" before his death on account of the
loss by severance of a finger. Nichols v. London Guarantee &
Accident Co., Mass. Indus. Ace. Bd. (Appeal pending to
Supreme Judicial Court).
22. Claim by dependents when compensation to work-
man terminated before death.
A workman was injured, and received compensation.
A memorandum of agreement to pay him compensation was
filed, and on an application to review the payments there-
under were terminated. Subsequently the man died and
his dependents applied for compensation. It was held that
DEATH BENEFITS 585
Claim by personal representative of deceased workman
the award terminating the rights of the workman was not
a bar to the claim by the dependents. Jobson v. W. Cory
& Sons (1911), 4 B. W. C. C. 284.
23. Claim for compensation by personal representative
of deceased dependent.
The right to compensation growing out of the death of a
workman passes to the personal representatives of the de-
ceased dependent. Darlington v. Roscoe & Sons (1906),
8 W. C. C. 4. Some of the statutes provide that upon the
death of a dependent compensation as to him or her ceases.
Where the death benefit is a fixed sum or is capable of com-
putation as for a specific number of weeks and there is no
provision terminating the payments at the death of the
dependent it would appear that the benefits would pass to the
dependent's next of kin upon the death of the dependent.
Where a dependent dies without having made claim for
compensation under the Act, the legal representatives of
such dependent may claim compensation as the right to
make claim became vested in the dependent at the time of
the death of the workman and survived to the legal repre-
sentatives of the dependent. (House of Lords), United Col-
lieries v. Hendry (1909), 101 L. T. 129; A. C. (H. L.) 383;
2 B. W. C. C. 308. Where a widow, of a workman whose
death has been caused by accident in his master's service,
makes application for compensation and subsequently dies
the personal representative of such widow can recover the
same compensation that the widow could have recovered
even though such representative is not a dependent of the
deceased workman. Darlington v. Roscoe & Sons (1910),
96 L. T. 179; 9 W. C. C. 1. The court discusses but does
not decide the question of whether or not the representative
of the widow could have recovered if the widow had not
applied for compensation before her death. The court dis-
cussed the Irish case of O'Donovan v. Cameron, Swan & Co.
(1901), 2 Irish R. 633; wherein it was held that the personal
586 bradbury's workmen's compensation law
Orphan's claim under Quebec Act
representative of a deceased dependent who had not made
application for compensation before her death could not
recover, and distinguished the two cases on the ground that
in one the dependent had made claim for compensation
before her death and in the other she had not made such
claim.
The right of a mother to claim compensation because of
the death of her son, upon whom she was dependent, vests
in her at the time of her son's death and the personal repre-
sentatives of the mother can maintain a proceeding for such
compensation, even though the mother failed to take pro-
ceedings during her lifetime. Hendry v. United Collieries
(1908), 45 Scotch L. R. 944; 1 B. W. C. C. 289.
The Massachusetts Industrial Accident Board has ruled
that in cases of fatal injuries the right of a dependent to
compensation is a vested interest, which passes to the de-
pendent's representatives on his death. Bulletin No. 2,
January, 1912. Many of the acts contain specific provisions
on this subject. Doubtless the rule adopted by the Massa-
chusetts Board would apply in those cases when the statute
provided for compensation for a specific number of weeks
in a death case and there were no specific provisions in the
statute as to the termination of such payments upon the
death of the dependent.
24. Orphan whose mother died prior to death of work-
man, compensation under Quebec Act.
Under the Compensation Act of the Province of Quebec
compensation is payable in the case of death "to legitimate
children, or illegitimate children acknowledged before the
accident, to assist them to provide for themselves until they
reach the full age of sixteen years." The same statute pro-
vides that "when the accident causes death, the compensa-
tion shall consist of a sum equal to four times the average
yearly wages of the deceased at the time of the accident,
and shall in no case, except in the cases mentioned in Ar-
DEATH BENEFITS 587
Arizona
tide 5, be less than $1,000 or more than $2,000." Article 5
provides that "no compensation shall be granted if the ac-
cident was brought about intentionally by the person in-
jured. The court may reduce the compensation if the acci-
dent was due to the inexcusable fault of the workman, or
increase if it is due to the inexcusable fault of the employer."
It was held by the Montreal Supreme Court under this
statute that an orphan whose mother had died prior to the
accident to his father, "was entitled to receive the full sum
with a minimum of $1,000 and a maximum of $2,000 under
Sec. 3, notwithstanding the limitation to the effect that
children were to receive assistance until they reached the
age of sixteen years. The defendant contended that its
only obligation was to the extent of such a sum as would
provide for the maintenance and education of the boy until
he reached his sixteenth year. Palmarei v. Grand Trunk Ry.
Co., Market World & Chronicle (N. Y.), October 26, 1912,
p. 534.
ARTICLE C— SPECIFIC PROVISIONS OF VARIOUS STATUTES
WITH NOTES OF ADJUDICATED CASES
ARIZONA
"§72, (3). When the death of the workman results from
the accident within six months thereafter, and the workman,
at the time of his death, leaves a widow, and a
minor child, or children dependent on such work- Art. Wi 58.
man's earnings for support and education, then
the employer shall pay to the personal representative of the
deceased workman for the exclusive benefit of such widow and
child, or children, a sum equal to twenty-four hundred times
one-half the daily wages or earnings of the decedent, deter-
mined as aforesaid, but in no event more than the sum of
four thousand dollars ($4,000.00). Such sum shall be paid
in lump and held in trust by such representative for such
widow and children and applied by him to the support of the
widow while she remains unmarried, and to the support and
588 bradbtjry's workmen's compensation law
California
education of the children so long as necessary, and until
eighteen (18) years of age, in such way and manner as to him
shall seem best and just, under and in accordance with the
directions of the court having jurisdiction of the estate of
the decedent; any balance remaining unapplied at the closing
of the estate of the decedent shall be distributed to the de-
cedent's widow (if still his widow), and the children or next
of kin, as provided by the law of descents. The personal repre-
sentative may pay out of said fund the reasonable and neces-
sary expenses of medical attendance and burial of the de-
cedent. If the workman leaves no widow or child, or children,
but a father or mother or sister dependent on him for support,
then said sum shall be for their benefit to be applied as above
provided. If the deceased workman leaves no widow, chil-
dren, or other dependents, then the employer shall pay the
reasonable expenses of medical attendance upon the decedent
and also provide and secure his burial in a proper cemetery,
which may be chosen by the friends of the decedent."
CALIFORNIA *
"§ 15. * * * (c) If the accident causes death, either with
or without disability, a death benefit which shall be payable
1 Except as otherwise provided by the Roseberry Act of 1911, it was
held that dependency was a question of fact to be determined by the
Board. Where, therefore, the deceased made contributions to his sister
for her support, and the money so contributed was actually used and
was necessary therefor, it was held that the sister was a dependent of the
deceased, even though she was living with her husband and by law the
husband was charged with the duty to support her. Ralins v. Great West-
ern Power Co., Cal. Indus. Ace. Bd., Dec. 5, 1912.
Under subdivision 3 of § 9 of the Roseberry Act it was held that where
an employe left a wife and minor child, that the wife was conclusively pre-
sumed to be solely and wholly dependent upon the decedent and the
minor was not entitled to any portion of the award. Therefore, it was
further held that the minor was not a necessary or proper party to the
application to recover compensation. McAvin v. City Electric Co., Cal.
Indus. Ace. Bd., March 8, 1912; aff'd by Superior Court.
A person partially dependent upon deceased is entitled to such percent-
age of three times the average annual earnings of deceased as the amount
DEATH BENEFITS 589
California
in installments equal to sixty-five per cent of the average
weekly earnings of the deceased employee, upon the employer's
regular pay-day, but not less frequently than twice in each
calendar month, unless otherwise ordered by the commission,
which death benefit shall be as follows:
given by the deceased to the support of such person bears to such average
earnings. Ralins v. Great Western Power Co., Cal. Indus. Ace. Bd., Dec. 5,
1912.
Applicants claimed the benefit on account of the death of Hilden
Nelson, who was a son of Annie N. Nelson, one of the applicants, and a
brother of Elmer Nelson, a minor, also an applicant. Deceased was elec-
trocuted while in the employ of the defendant. The issue was the status
of the dependents and the amount payable as death benefit. Held that
applicants were dependents within the meaning of the law and entitled
to the death benefit of $4,050, to be divided equally between them. Nel-
son, v. Great Western Power Co., Cal. Indus. Ace. Bd., Sept. 16, 1913.
Applicant was the mother of Clarence P. Dodge, who was killed while
in the employ of the defendant. The company admitted liability for
compensation but claimed there were no dependents. Held that the de-
fendant's contention was valid, because she had married again, lived in
an unencumbered home owned by applicant, that she did not have any
children or other persons dependent upon her, and that she had been
supported since 1894 through the earnings of her present husband, Orris
S. Wentworth. Wentworth v. Pacific-Wakefield Co., Cal. Indus. Ace.
Bd., Feb. 24, 1913.
William and Emma Crase filed an application on account of the death
of their son, Ernest S. Crase, who met his death while descending a shaft
in the mine owned by the defendant. Held that the death resulted from
industrial accident, which was the main point of controversy, and that
the parents were entitled to a pro rata of the earnings of the deceased,
which were estimated at 34.2 per cent of his annual earnings of $766.00,
the total amount being $785.92, to be paid in weekly installments of
$14.73. This case was appealed to the Superior Court of the County of
Nevada, California, and the decision of the Industrial Accident Board
sustained. Crase v. North Star Mines Co., Cal. Indus. Ace. Bd., March 14,
1913.
This application was filed on account of the death of applicant's son,
James Russell. Applicant died on December 9, 1912, during the pend-
ency of the controversy, and therefore the Board issued an order dismiss-
ing the application. Russell v. Lachman & Jacobi, Cal. Indus, Ace. Bd.,
June 18, 1913.
590 bradbury's workmen's compensation law
California
" (1) In case the deceased employee leaves a person or per-
sons wholly dependent upon him for support, the death ben-
efit shall be a sum sufficient, when added to the disability
indemnity which, at the time of death has accrued and be-
come payable, under the provisions of subsection (6) hereof, to
make the total disability indemnity and death benefit equal to
Applicants were desirous of ascertaining their liability on account of
the death of Alphonse F. Malaret. The latter's mother was the defendant.
She resided in France. The issue was one of dependency which was as-
certained so far as was possible from the records of the post office money
order department. Held that applicants were liable to the defendant in
the sum of $230.85, as the defendant showed that deceased contributed
an average of 11.4% of his wages. Poetsch & Peterson and Southwestern
Surety Insurance Co. v. Malaret, Cal. Indus. Ace. Bd., Dec. 8, 1913.
Application filed by Lillian M. Farrington, guardian of children of
James Russell, deceased. The case hinged on the neglect of deceased to
adequately support his three minor children for some time prior to death.
Held that applicant was entitled to the three years' death benefit, amount-
ing to S3,600, for the reason that his failure to provide for his minor chil-
dren did not relieve his estate of the legal obligation. Farrington v. Lach-
man & Jacobi, Cal. Indus. Ace. Bd., July 12, 1913.
Applicant was the wife of G. H. Moses, who was killed while working
for the defendant. The facts were clear, and the defendant had the papers
filed for the purpose of obtaining a ruling as to whether the dependents
were entitled to the death benefit of $4,500. Beside the widow there were
five children, two of whom were minors. Held that applicant was solely
and wholly dependent for support upon the deceased and was entitled
to the death benefit. Moses v. Standard Oil Co., Cal. Indus. Ace. Bd.,
Feb. 24, 1913.
In this case the employer filed an application in order to ascertain to
whom the death benefit should be paid for the death of William O. Self-
ridge. One defendant, Ida May Selfridge, the surviving wife of deceased,
claimed the whole amount of compensation, while the other defendant,
Esther Merle Selfridge, a minor daughter of the deceased by a former
marriage, claimed a portion of the compensation. Attorneys for the
minor daughter claimed that it was impossible for the Industrial Acci-
dent Board to acquire jurisdiction over the person of such minor or to
appoint a guardian. These attorneys filed a suit for damages in the courts
in behalf of the minor child, and introduced the question of the constitu-
tionality of the Act. No decision has been rendered at this date (Janu-
ary 7, 1914), and therefore the case is still pending before the Board.
DEATH BENEFITS 591
California
three times his average annual earnings, such annual earnings
to be taken at not less than three hundred and thirty-three
dollars and thirty-three cents nor more than one thousand six
hundred and sixty-six dollars and sixty-six cents.
" (2) In case the deceased employee leaves no person wholly
dependent upon him for support, but one or more persons par-
Natomas Consolidated of California v. Selfridge, Cal. Indus. Ace. Bd.
(filed Nov. 19, 1912.)
This was an application for compensation for death. Held applicant
was not entitled to compensation for the reason that it was found that
she was not a dependent within the meaning of the Act, inasmuch as she
was not the legal wife of the deceased. Aldinger v. Ransome Concrete Co.,
Cal. Indus. Ace. Bd., Sept. 12, 1913.
Applicant was the employer desirous of ascertaining his legal liability
on account of the death of Gus Nelson, a stevedore. The widow, the de-
fendant, felt that she was entitled to more than three years' annual earn-
ings, amounting to $3,557.55. Held that the claim was contrary to the
Compensation Law and that the applicant was correct in its reading of the
statute. Legal proceedings were threatened at one time in the hope of
securing a larger amount for the loss of the bread winner. The Industrial
Accident Board sympathized with the view of the widow that she and her
family were inadequately compensated for their loss, and it was stated
that "compensation" was a word used that improperly conveyed its
meaning in a case such as this. Spreckels Bros. Commercial Co. v. Nelson,
Cal. Indus. Ace. Bd., June 24, 1913.
C. L. Belknap was killed on November 27, 1912. Death claim of $5,000
in weekly payments of $32.05 disputed by defendant on ground of de-
ceased's wilful misconduct in violation of orders. Held that widow was
entitled to the full benefit as specified. The claim of wilful misconduct
was disallowed on the ground that deceased was foreman, had charge of
the work of unloading piles from a railroad car, and used his discretion
in unloading without the use of ropes ordered by employer. Evidence
showed that this condition had prevailed for between one and two weeks
prior to death, and while the superintendent was in the vicinity of the
work. Decided that orders issued must be enforced and that the fatality
was not caused by wilful misconduct. Belknap v. Mervy-Elwell Co., Cal.
Indus. Ace. Bd., May 27, 1913.
This case was dismissed after medical testimony showed that the condi-
tion of the husband of applicant resulted from a physical status that ante-
dated the time of the alleged accident. Waite v. Oakland California Towel
Co., Cal. Indus. Ace. Bd., Oct. 10, 1913.
592 bradbury's workmen's compensation law
California
tially dependent therefor, the death benefit shall be such per-
centage of three times such average annual earnings of the
employee as the annual amount devoted by the deceased to
the support of the person or persons so partially dependent
bears to such average annual earnings; provided, that the
death benefit shall not be greater than a sum sufficient, when
added to the disability indemnity which, at the time of the
death, has accrued and become payable under the provisions
of subsection (6) hereof to make the total disability indemnity
and death benefit equal to three times his average annual
earnings, such average annual earnings to be taken at not less
than three hundred and thirty-three dollars and thirty-three
cents nor more than one thousand six hundred and sixty-six
dollars and sixty-six cents.
" (3) If the deceased employee leaves no person dependent
upon him for support, the death benefit shall consist of the
reasonable expenses of his burial not exceeding one hundred
dollars and such further death benefit as may be provided by
law.
"(d) Payment of compensation in accordance with the
order and direction of the commission shall discharge the em-
ployer from all claims therefor.
"§ 19. (a) The following shall be conclusively presumed
to be wholly dependent for support upon a deceased employee:
" (1) A wife upon a husband with whom she was living at
the time of his death.
" (2) A husband upon a wife upon whose earnings he is par-
tially or wholly dependent at the time of her death.
" (3) A child or children under the age of eighteen years (or
Applicant was administrator of the estate of James Russell, deceased,
and filed an application to adjust a controversy arising out of an injury
sustained by James Russell. By consent the application was withdrawn,
without prejudice, on October 7, 1912, prior to any hearing thereon.
Blackburn v. Lachman &Jacobi, Cal. Indus. Ace. Bd., Oct. 7, 1913.
This application was dismissed on the ground that the City of Los
Angeles had not accepted the compensation provisions of the Law of 1911,
the State Supreme Court having decided that the State and municipal-
ities were not under compensation unless they had so elected. Estep v.
City of Los Angeles, Cal. Indus. Ace. Bd., July 24, 1913.
DEATH BENEFITS 593
California
over said age, but physically or mentally incapacitated from
earning) upon the parent with whom he or they are living
at the time of the death of such parent or for whose main-
tenance such parent was legally liable at the time of his death,
there being no surviving dependent parent.
"(b) In all other cases, questions of entire or partial de-
pendency and questions as to who constitute dependents and
the extent of their dependency shall be determined in accord-
ance with the fact, as the fact may be at the time of the death
of the employee.
" (c) No person snail be considered a dependent of any de-
ceased employee unless a member of the family of such em-
ployee or unless such person bears to such employee the rela-
tion of husband or wife, child, adopted child or stepchild,
father or mother, father-in-law or mother-in-law, grandfather
or grandmother, brother or sister, nephew or niece.
" (d) 1. If there is one or more persons wholly dependent
for support upon a deceased employee, such person or persons
shall receive the entire death benefit, and any person or per-
sons partially dependent shall receive no part thereof, unless
otherwise ordered by the commission.
"2. If there is more than one such person wholly dependent
for support upon a deceased employee, the death benefit shall
be divided equally among them, unless otherwise ordered by
the commission.
"3. If there is more than one person partially dependent
for support upon a deceased employee, and no person wholly
dependent for support, the amount allowed as the death bene-
fit shall be divided among the persons so partially dependent
in proportion to the relative extent of their dependency, un-
less otherwise ordered by the commission.
" (e) The death benefits shall be paid to such one or more
of the dependents of the deceased, or to a trustee appointed
by the commission, or a commissioner, for the benefit of the
person or persons entitled, as may be determined by the com-
mission, and the commission may, anything in this act con-
tained to the contrary notwithstanding, apportion such bene-
fits among the dependents in proportion to their respective
needs and as may be just and equitable, and may order pay-
38
594 bradbury's workmen's compensation law
Connecticut
ment to a dependent subsequent in right, or not otherwise
entitled, upon good cause being shown therefor. The person
to whom the death benefit is paid for the use of the several
beneficiaries shall apply the same in compliance with the
findings and directions of the commission.
CONNECTICUT
" Part B., § 9. Compensation for Fatal Injuries. Com-
pensation shall be paid on account of death resulting from
injuries within two years from date of injury as follows: (a)
For burial expenses one hundred dollars; (6) to those totally
dependent upon the deceased employee at the time of his
injury a weekly compensation equal to half of the average
weekly earnings of the deceased at the time of his injury;
(c) in case there is no one totally dependent upon the deceased
employee then to those partially dependent upon the deceased
employee at the time of his injury a weekly compensation not
exceeding that payable to total dependents and of such propor-
tionate sum as may be determined according to the measure
of dependence; (d) in case there are no dependents of the de-
ceased employee the sum of seven hundred and fifty dollars,
to be paid to the state treasurer and by him set apart as a
fund to be used for the payment of lawful expenses of the
commissioners; but the compensation payable on account of
death resulting from injuries shall in no case be more than ten
dollars or less than five dollars weekly, and such compensa-
tion shall not continue longer than three hundred and twelve
weeks after death. The compensation on account of death
payable under this act to a widow or widower of a deceased
employee shall not cease with the death of such widow or
widower, but upon her or his death within the period during
which such compensation is payable it shall continue to be
paid for the remainder of such period to her or his dependents
as defined in section forty-three.
"§ 10. Meaning of Dependence. The following persons
shall be conclusively presumed to be totally dependent for
support upon a deceased employee: (o) A wife upon a husband
DEATH BENEFITS 595
Connecticut
with whom she lives at the time of his injury or from whom
she receives support regularly; (b) a husband upon a wife
with whom he lives at the time of her injury or from whom he
receives support regularly; (c) a child or children under the
age of eighteen years, or over said age but physically or men-
tally incapacitated from earning, upon the parent with whom
he is or they are living or from whom he is or they are receiving
support regularly at the time of the injury of such parent,
there being no surviving dependent parent. In case there is
more than one child thus dependent the death benefit shall
be divided equally among them. In all other cases questions
of dependency, total or partial, shall be determined in ac-
cordance with the fact, as the fact may be at the time of the
injury. In such other cases, if there is more than one person
totally dependent, the death benefit shall be divided equally
among them, and persons partially dependent, if any, shall
receive no part thereof. If there is no person totally de-
pendent and more than one person partially dependent, the
death benefit shall be divided among them according to the
relative degrees of their dependence. For the purposes of
this act the dependence of a widow or widower of a deceased
employee shall be construed to terminate with remarriage
and the dependence of a child, except a child physically or
mentally incapacitated from earning, with the attainment of
eighteen years. Compensation under this section shall be
paid to alien dependents in half the amounts indicated in this
section unless such alien dependents are residents of the United
States, or its dependencies, or Canada."
"Part B., § 14. Allowance for Advance Payments. In fix-
ing the amount of any compensation under this act due al-
lowance shall be made for any sum which the employer may
have paid to any injured employee or to his dependents on
account of the injury, except such sums as the employer may
have expended or directed to be expended for medical, sur-
gical, or hospital service."
596 bradbuky's workmen's compensation law
Illinois
ILLINOIS
"§ 7. The amount of compensation which shall be paid for
an injury to the employee resulting in death shall be:
"(a) If the employee leaves any widow, child or children
whom he was under legal obligation to support at the time of
his injury, a sum equal to four times the average annual earn-
ings of the employee, but not less in any event than one
thousand five hundred dollars and not more in any event than
three thousand five hundred dollars. Any compensation
payments other than necessary medical, surgical or hospital
fees or services shall be deducted in ascertaining the amount
payable on death.
" (b) 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 con-
tributed within four years previous to the time of his injury,
a sum equal to four times the average annual earnings of the
employee, but not less in any event than one thousand five
hundred dollars and not more in any event than three thou-
sand five hundred dollars. Any compensation payments
other than necessary medical, surgical or hospital fees or
services shall be deducted in ascertaining the amount payable
on death.
" (c) If no amount is payable under paragraph (a) or (b)
of this section and the employee leaves collateral heirs de-
pendent at the time of the injury to the employee upon his
earnings, such a percentage of the sum provided in paragraph
(a) of this section as the average annual contributions which
the deceased made to the support of such collateral dependent
heirs during the two years preceding the injury bears to his
earnings during such two years.
" (d) If no amount is payable under paragraph (a) or (6)
or (c) of this section, a sum not to exceed one hundred and
fifty dollars for burial expenses.
" (e) All compensation except for burial expenses, provided
for in this section to be paid in case injury results in death,
shall be paid in installments equal to one-half the average
DEATH BENEFITS 597
Iowa
earnings, at the same intervals at which the wages or earnings
of the employee were paid; or if this shall not be feasible, then
the installments shall be paid weekly: Provided, such com-
pensation may be paid in a lump sum upon petition as pro-
vided in section 9 of this Act.
" (/) The compensation to be paid for injury which results
in death, as provided in this section, shall be paid at the op-
tion of the employer either to the personal representative of
the deceased employee or to his beneficiaries, and shall be
distributed to the heirs who formed the basis for determining
the amount of compensation to be paid by the employer, the
distributees' shares to be in the proportion of their respective
dependency at the time of the injury on the earnings of the
deceased, provided that, in the judgment of the court ap-
pointing the personal representative, a child's distributive
share may be paid to the parent for the support of the child.
The payment of compensation by the employer to the personal
representative of the deceased employee shall relieve him of
all obligation as to the distribution of such compensation so
paid. The distribution by the personal representative of the
compensation paid to him by the employer shall be made
pursuant to the order of the court appointing him.
When death results from injury after payment of dis-
ability benefits see § 8 (g) m Chapter XII.
IOWA
"§ 10 (c). Where the injury causes death the compensa-
tion under this act shall be as follows:
"(d) If death results from the injury, the employer shall
pay the dependents of the employe" wholly dependent upon
his earnings for support at the time of the injury, a weekly
payment equal to fifty (50%) per cent of his average weekly
wages, but not more than ten ($10.00) dollars nor less than
1 The omitted part provides for funeral expenses. See Chapter X.
598 bradbury's workmen's compensation law
Iowa
five ($5.00) dollars per week for a period of three hundred
(300) weeks.
"(e) If the employ^ leaves dependents only partially de-
pendent upon his earnings for support at the time of the in-
jury, the weekly compensation to be paid as aforesaid shall
be equal to the same proportion of the weekly payments for
the benefit of persons wholly dependent as the amount con-
tributed by the employe to such partial dependents bear to
the annual earnings of the deceased at the time of the injury.
When weekly payments have been made to an injured em-
ploye before his death, the compensation to dependents shall
begin from the date of the last of such payments, but shall not
continue more than three hundred (300) weeks from the date
of the injury.
"(f) Where injury causes death to an employe^ a minor,
whose earnings were received by the parent, the compensation
to be paid the parent shall be two-thirds (2/3) of the amount
provided for payment in subdivision "d", section 10."
"§ 17. * * * (c) The following shall be conclusively pre-
sumed to be wholly dependent upon a deceased employe:
" (1) The surviving spouse, unless it be shown that the sur-
vivor wilfully deserted deceased without fault upon the part
of the deceased and if it be shown that the survivor deserted
deceased without fault upon the part of deceased, the survivor
shall not be regarded as a dependent, in any degree. No sur-
viving spouse shall be entitled to the benefits of this act un-
less she shall have been married to the deceased at the time
of the injury.
"(2) A child or children under sixteen years of age (and
over said age if physically or mentally incapacitated from
earning) whether actually dependent for support or not upon
the parent at the time of his or her death.
" (3) A parent of a minor entitled to the earnings of the
employe1 at the time when the injury occurred, subject to
provisions of subdivision "F" section ten hereof.
"(4) If the deceased employ^ leaves dependent surviving
spouse the full compensation shall be paid to such spouse;
but if the dependent surviving spouse dies before payment is
made in full, the balance remaining shall be paid to the person
DEATH BENEFITS 599
Kansas
or persons wholly dependent, if any, share and share alike.
If there be no person or person wholly dependent, then pay-
ment shall be made to partial dependents.
"(5) In all other cases questions 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; and in such other
cases if there is more than one person wholly dependent, the
death benefit shall be equally divided among them, and per-
sons partially dependent, if any, shall receive no part thereof.
If there is no one wholly dependent and more than one per-
son partially dependent, the death benefit shall be divided
among them according to the relative extent of their de-
pendency. Provided, however, that when a lump sum is
paid as contemplated by this act, the court or Commissioner
in making distribution thereof, shall take into consideration
the contingent rights of partial beneficiaries or the rights of
those who may become such after a wholly dependent child
or children become sixteen years of age.
" (6) Step-parents shall be regarded in this Act as parents.
"(7) Adopted child or children or step-child or children
shall be regarded in this Act the same as if issue of the body.
The amount of compensation cannot be waived. Part I,
18.
KANSAS
"§ 11. Amount of compensation. The amount of compen-
sation under this act shall be: (a) Where death results from
injury: (1) If the workman leaves any dependents wholly
dependent upon his earnings, an amount equal to three times
his earnings for the preceding year but not exceeding thirty
six hundred dollars and not less than twelve hundred dollars,
provided, such earnings shall be computed upon the basis
of the scale which he received or would have been entitled to
receive had he been at work, during the thirty days next
preceding the accident; and, if the period of the workman's
employment by the said employer had been less than one year,
then the amount of his earnings during the said year shall be
600 bradbury's workmen's compensation law
Kansas
deemed to be fifty-two times his average weekly earnings
during the period of his actual employment under said em-
ployer; provided, that the amount of any payments made
under this act and any lump sum paid hereunder for such in-
jury from which death may thereafter result shall be deducted
from such sum; and provided, however, that if the workman
does not leave any dependents, citizens of and residing at the
time of the accident in the United States or the Dominion of
Canada, the amount of compensation shall not exceed in any
case seven hundred and fifty dollars. (2) If the workman
does not leave any such dependents, but leaves any dependents
in part dependent upon his earnings, such proportion of the
amount payable under the foregoing provisions of this sec-
tion, as may be agreed upon or determined to be proportion-
ate to the injury to the said dependents; and (3) If he leaves
no dependents, the reasonable expense of his medical at-
tendance and burial, not exceeding one hundred dollars.
(4) Marriage of any dependent shall terminate all compensa-
tion of such dependent, but shall not affect compensation
allowed other dependents; when any minor dependent, not
physically or mentally incapable of wage earning shall be-
come eighteen years of age, such compensation shall cease.
* * * ." (The remainder of § 11 relates to compensation for
disability. See next succeeding chapter) (as am'd by L. 1918,
c. 216, approved March 10, 1913, in effect March 12, 1913.)
"§ 9 0')- 'Dependents' means such members of the work-
man'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 purposes of this act means only widow or hus-
band, as the case may be, and children; or if no widow, hus-
band or children, then parents and grandparents, or if no
parents or grandparents, then grandchildren; or if no grand-
children, then brothers and sisters. In the meaning of this
section parents include step-parents, children include step-
children, and grandchildren include step-grandchildren, and
brothers and sisters include step-brothers and step-sisters,
and children and parent include that relation by legal adop-
tion."
DEATH BENEFITS 601
-Maryland
MARYLAND
"§ 4. The insurance in case of death shall be for the benefit
of such persons being the widow, widower, father, mother,
son or daughter, as are dependent wholly or in part for their
support upon the earnings of such employee (all of which
persons are hereinafter designated as dependents of such em-
ployee) or of such of them as may be named in the contract
or policy to which it refers and the person for whose benefit
such insurance is made should be bound by the agreement
authorized by the first section of this act.
" § 5. In order to satisfy the requirements of this act, the
benefits payable under such insurance shall be at least as
follows:
"(1) In case of death:
w (a) If the employee insures for the benefit of any depend-
ent wholly dependent upon his wages at the time of his death,
a sum equal to his wages in the employment of said employer
during a period of three years next preceding the accident,
but not less in any case than the sum of one thousand dollars;
provided, that the amount of any weekly payments made
under such insurance or any lump sum paid in redemption
thereof, may be deducted from such sum; and if the period of
the employee's employment by said employer has been less
than said three years, then the amount of his earnings during
said three years shall be deemed to be one hundred and fifty-
six times his average weekly earnings during the period of his
actual employment by said employer.
" (b) If the employee insures for the benefit only of persons
partly dependent upon his wages at the time of his death,
then a sum equal to the payments provided for the benefit of
persons wholly dependent, less six times the average annual
earnings; or if employed for less than a year, then less three
hundred times the average weekly earnings of said dependent
person or persons partly dependent on his wages.
" (c) If the employee leaves no dependents, then the rea-
sonable expenses of his medical attendance shall be paid, and
in addition burial expenses not less than seventy-five dollars
nor more than one hundred dollars.
602 bradbuky's workmen's compensation law
Massachusetts
"And the contract or policy therein referred to may pro-
vide for the payment, instead of a lump sum, of a weekly
sum which, in the case of persons wholly dependent, shall not
be less than the weekly payment in case of total disability
hereinafter provided for, and which, in the case of persons
partly dependent, shall not be less than the weekly payment
in case of total disability, less the amounts earned by the
persons partly dependent, and which sum may be divided
between the dependents in such a manner as such contract or
policy may provide or as may otherwise be agreed upon; or
such contract or policy may provide for a combination of
lump sums, weekly payments, or for the substitution of one
for the other."
MASSACHUSETTS1
" Part II, § 6. If death results from the injury, the associa-
tion shall pay the dependents of the employ^, wholly depend-
ent upon his earnings for support at the time of the injury, a
weekly payment equal to one-half his average weekly wages,
but not more than ten dollars nor less than four dollars a
week, for a period of three hundred weeks from the date of
the injury. If the employe leaves dependents only partly
dependent upon his earnings for support at the time of his
injury, the association shall pay such dependents a weekly
compensation equal to the same proportion of the weekly
payments for the benefit of persons wholly dependent as the
amount contributed by the employe* to such partial depend-
ents bears to the annual earnings of the deceased at the time
of his injury. When weekly payments have been made to an
injured employe* before his death, the compensation to de-
pendents shall begin from the date of the last of such payments,
but shall not continue more than three hundred weeks from
the date of the injury."
"Part II, § 12. No savings or insurance of the injured em-
ploy^, independent of this act, shall be taken into considera-
1 See cases cited in Article B, of this chapter, arising under the Massa-
chusetts Act.
DEATH BENEFITS 603
Massachusetts
tion in determining the compensation to be paid hereunder,
nor shall benefits derived from any other source than the
association be considered in fixing the compensation under
this act.
"§ 13. The compensation payable under this act in case
of the death of the injured employe- shall be paid to his legal
representative; or, if he has no legal representative, to his
dependents; or, if he leaves no dependents, to the persons to
whom payment of the expenses for the last sickness and burial
are due. If the payment is made to the legal representative
of the deceased employ^, it shall be paid by him to the de-
pendents or other persons entitled thereto under this act."
"Part II, § 7. The following persons shall be conclusively
presumed to be wholly dependent for support upon a deceased
employed
"(a) A wife upon a husband with whom she lives at the
time of his death.
"(b) A husband upon a wife with whom he lives at the
time of her death.
"(c) A child or children under the age of eighteen years
(or over said age, but physically or mentally incapacitated
from earning) upon the parent with whom he is or they are
living at the time of the death of such parent, there being no
surviving dependent parent. In case there is more than one
child thus dependent, the death benefit shall be divided
equally among them.
"In all other cases 1 questions of dependency, in whole or
1 A dependent mother who received an average weekly contribution
of five dollars from a son's average weekly wage of $13.65 was held to be
entitled to a weekly compensation of $6.83, when it appeared that she
was in fact wholly dependent upon her son for support. Smith v. Massa-
chusetts Employes Insurance Association, Mass. Indus. Ace. Bd.
Where a father received all the wages of a son it was held that he was
entitled to the entire minimum compensation provided by the statute of
four dollars a week for a period of three hundred weeks and that nothing
should be deducted from the amount by reason of the money contributed
by the father for the son's maintenance. Murphy v. American Mutual
Liability Insurance Co., Mass. Indus. Ace. Bd. (Appeal pending to Su-
preme Judicial Court).
604 bradbury's workmen's compensation law
Massachusetts
in part, shall be determined in accordance with the fact, as
the fact may be at the time of the injury; and in such other
cases, if there is more than one person wholly dependent, the
death benefit shall be divided equally among them, and per-
sons partly dependent, if any, shall receive no part thereof;
if there is no one wholly dependent and more than one person
partly dependent, the death benefit shall be divided among
them according to the relative extent of their dependency." 1
1 In the case of Coakley v. Coakley, 215 Mass. 000; 103 N. E. Rep. 930,
the Supreme Judicial Court construed this section in an opinion which is
given in full below:
Rugg, C. J. This is a proceeding under the Workmen's Compensation
Act. The question at issue is the division of the payments due to the de-
pendents of John C. Coakley, who received personal injuries arising out
of and in the course of his employment and who died as a result. He left
a widow, Nora, with whom as wife he was living at the time of his decease,
two minor children who were children of Nora, a child of this marriage
born since his death, and another child named Marion, by an earlier
marriage. All the children are of tender years. The child Marion has
no property of her own and was living in her father's family, entirely sup-
ported by him. The widow was appointed administratrix of the estate
of John C. Coakley and she has come to an agreement with the insurer,
which has been approved by the Industrial Accident Board, for the pay-
ment to be made by it on account of his death. A guardian has been ap-
pointed of the child Marion, who by law is charged with the custody and
tuition of the ward, she having no father or mother living. R. L. c. 145,
Section 4, St. 1904, c. 163. The widow and administratrix claims that as
matter of law under the Act the guardian is entitled to nothing and she
refuses to pay anything to her for the support of the ward.
The material provisions of the Act are found in St. 1911, c. 751, Part II,
Section 7, in these words: — (quoting above section).
It is plain from this provision that the widow is conclusively presumed
to be wholly dependent. It is equally plain that the child of the former
marriage also is conclusively presumed to be wholly dependent, because
in her case there is no surviving dependent parent. This language as
construed in the McNicol case, ante, means that the children of the de-
ceased who are the children of the widow, are not conclusively presumed
to be dependent, because as to them there is a surviving parent. Analyz-
ing the Act with technical nicety, probably the last paragraph of Section 7,
above quoted, does not apply to the case at bar because it relates to "all
other cases," and "such other cases," which must mean cases other than
DEATH BENEFITS 605
Massachusetts
"Part V, §2. * * * 'Dependents' shall mean members
of the employees family or next of kin who were wholly or
those specifically provided for in paragraphs (a), (b) and (c) of the sec-
tion. It is true that no express provision is made for a case like the present
where there is more than one person beside orphaned children conclusively
presumed to be wholly dependent. But the Act should be interpreted
broadly in harmony with its main aim of providing support for those
dependent upon a deceased employee. Reading the section as a whole
the purpose appears to be, though disclosed not in the clearest language,
to divide the payments equally among those conclusively presumed to be
wholly dependent. This is manifest by express words when there are two
or more orphaned children. Equal provision is provided also when, in case
there is no one conclusively presumed to be wholly dependent and de-
pendency is determined as a fact, more than one is found to be wholly
dependent. This interpretation may be supported as consonant with
what reasonably may be supposed to have been the intent of the legisla-
ture. When there are left a parent and children, who are the issue of the
surviving dependent parent and the deceased, the natural instincts as
well as the legal obligation combine to assure support to the children in
case they need it. But in case of step-children there is neither the parental
affection nor legal duty. The legislature well might leave the support of
children to their parent by blood and hesitate to leave it to any one else
when there is no parent by blood.
It is argued that the widow is entitled to the whole sum on the ground
that she stands in loco parentis. These words are not found in the Act.
The voluntary assumption of the obligations of parenthood toward chil-
dren of a spouse by another marriage is one favored by the law. They
may be included under the descriptive word family. Midhern v. McDavitt,
16 Gray, 404. But there is nothing in the record at bar to show that the
widow has assumed any legal obligation to support the step-daughter.
On the other hand it is agreed that she declines to contribute anything to
the guardian on whom by law is cast the duty of her care. It would be
a hard thing to say that the words "surviving dependent parent" could
have been intended by the legislature to include one standing in loco
parentis, to a child, when the effect of such construction would be to debar
such child, an orphan in fact, from the benefit of a conclusive presump-
tion which otherwise the Act establishes in its favor. Parent commonly
means the lawful father or mother by blood. It does not lend itself readily
to a significance so broad as to include step-father or step-mother, or any
one standing in loco parentis. The use of such other word in common
speech of itself has some tendency to indicate a different meaning. The
606 bradbury's workmen's compensation law
Michigan
partly dependent upon the earnings of the employe for sup-
port at the time of the injury."
MICHIGAN1
"Part II, § 5. If death results from the injury, the em-
ployer shall pay,2 or cause to be paid, subject, however, to the
provisions of section twelve hereof, in one of the methods
hereinafter provided, to the dependents of the employ6, wholly
dependent upon his earnings for support at the time of the
injury, a weekly payment equal to one-half his average weekly
wages, but not more than ten dollars nor less than four dollars
a week for a period of three hundred weeks from the date of
the injury. If the employe" leaves dependents only partly
dependent upon his earnings for support at the time of his
injury, the weekly compensation to be paid as aforesaid shall
arrangement of the words parent and child in the present Act points to
the consanguineous relation and not to that by affinity. That it does not
include one standing in the place of a parent seems to follow from the cir-
cumstance that there is no continuing obligation on one who has assumed
such a relation. It may be abandoned at any time. The result is that
there should be an equal division between the widow and the daughter of
the earlier marriage who has no surviving parent.
Decree reversed. New decree to be entered in accordance with this decision.
1 See also Michigan cases cited in Article B of this chapter.
Where an employe of a State Institution is injured in the course of his
duties his claim for damages must be paid out of the funds of the Insti-
tution by which he is employed, and such disbursement should be included
as part of the current expenses of the maintenance of such Institution.
Opinion of Attorney General of Michigan, on the application of the Board
of State Auditors, in re Michigan School for the Blind. January 22nd, 1913.
- The place of payment of compensation is at the place where the person
entitled to receive payments resides. The payee must endorse the voucher
and sign the receipts attached before the same can be cashed, and the gen-
uineness of such signatures is in most cases guaranteed by local banks
and business men through whose hands the vouchers pass. Ruling of
Mich. Indus. Ace. Bd., January, 1913.
Compensation payments must be made weekly and may not be made
bi-weekly instead of in weekly instalments. Ruling of Mich. Indus. Ace.
Bd., October, 1912.
DEATH BENEFITS 607
Michigan
be equal to the same proportion of the weekly payments for
the benefit of persons wholly dependent as the amount con-
tributed by the employ^ to such partial dependents bears to
the annual earnings of the deceased at the time of his injury.
When weekly payments have been made to an injured em-
ploy^ before his death the compensation to dependents shall
begin from the date of the last of such payments, but shall
not continue more than three hundred weeks from the date
of the injury."
"Part II, § 6. The following persons shall be conclusively
presumed to be wholly dependent for support upon a deceased
employed
"(a) A wife upon a husband with whom she lives at the
time of his death;
"{b) A husband upon a wife with whom he lives at the
time of her death;
" (c) A child or children under the age of sixteen years (or
over said age, if physically or mentally incapacitated from
earning) upon the parent with whom he is or they are living
at the time of the death of such parent, there being no sur-
viving parent. In case there is more than one child thus de-
pendent, the death benefit shall be divided equally among
them. In all other cases questions 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; and in such other
cases, if there is more than one person wholly dependent, the
death benefit shall be divided equally among them, and per-
sons partly dependent, if any, shall receive no part thereof;
if there is no one Wholly dependent and more than one person
partly dependent, the death benefit shall be divided among
them according to the relative extent of their dependency.
No person shall be considered a dependent, unless a member
of the family of the deceased employe1, or bears to him the
relation of husband or widow, or lineal descendant, or ances-
tor, or brother, or sister.
"§ 7. Questions as to who constitute dependents and the
extent of their dependency shall be determined as of the date
of the accident to the employe^ and their right to any death
benefit shall become fixed as of such time, irrespective of any
608 bradbury's workmen's compensation law
Michigan
subsequent change in conditions; and the death benefit shall
be directly recoverable by and payable to the dependent or
dependents entitled thereto, or their legal guardians or trus-
tees. In case of the death of one such dependent his propor-
tion of such compensation shall be payable to the surviving
dependents pro rata. Upon the death of all such dependents
compensation shall cease. No person shall be excluded as a
dependent who is a non-resident alien. No dependent of an
injured employe shall be deemed, during the life of such em-
ploye, a party in interest to any proceeding by him for the
enforcement of collection of any claim for compensation, nor
as respects the compromise thereof by such employed"
" § 12. The death of the injured employe" prior to the expira-
tion of the period within which he would receive such weekly
payments shall be deemed to end such disability, and all
liability for the remainder of such payments which he would
have received in case he had lived shall be terminated, but the
employer shall thereupon be liable for the following death
benefits in lieu of any further disability indemnity:
"If the injury so received by such employe" was the proxi-
mate cause of his death, and such deceased employe" leaves
dependents, as hereinbefore specified, wholly or partially
dependent on him for support, the death benefit shall be a
sum sufficient, when added to the indemnity which shall at
the time of death have been paid or become payable under
the provisions of this act to such deceased employ^, to make
the total compensation for the injury and death exclusive of
medical and hospital services and medicines furnished as
provided in section four hereof, equal to the full amount
which such dependents would have been entitled to receive
under the provisions of section five hereof in case the accident
had resulted in immediate death, and such benefits shall be
payable in weekly installments in the same manner and sub-
ject to the same terms and conditions in all respects as pay-
ments made under the provisions of said section five.
"§ 13. No savings or insurance of the injured employ^,
nor any contribution made by him to any benefit fund or
protective association independent of this act, shall be taken
into consideration in determining the compensation to be paid
DEATH BENEFITS 609
Minnesota
hereunder, nor shall benefits derived from any other source
than those paid or caused to be paid by the employer as herein
provided, be considered in fixing the compensation under
this act."
MINNESOTA
"Part II, § 13, (/) In case death occurs to a workman
during the period of disability, caused by an injury due to
accident, and arising out of and in the course of his employ-
ment, all payments previously made as compensation for
such injury, shall be deducted from the compensation, if
any, due on account of death.
"§ 14. Who are dependents and allowances to each. — (1)
Wife and children presumed wholly dependent. For the pur-
poses of this act, the following described persons, viz. : Wife,
minor children under the age of eighteen years, or those over
that age who are physically or mentally incapacitated from
earning, shall be presumed to be wholly dependent.
"(2) Actual dependents. — Any dependents named m sub-
division 1; also husband, mother, father, grandmother, grand-
father, sisters and brothers who were wholly supported by the
deceased workman at the time of his death and for a reason-
able period of time immediately prior thereto shall be con-
sidered his actual dependents, and payment of compensation
shall be made to them in the order named.
" (3) Partial dependents. — Any dependents named in sub-
division 2, who regularly derived part of their support from
the wages of the deceased workman at the time of his death
and for a reasonable period of time immediately prior thereto
shall be considered his partial dependents, and payment of
compensation shall be made to them in the order named.
" (4) In death cases, compensation payable to dependents
shall be distributed according to the laws of Minnesota,
providing for distribution of the personal property of an in-
testate decedent, except as herein otherwise provided, and
shall be computed and paid on the following basis:
"(5) If the deceased employ 6 leave a widow and no de-
39
610 bradbury's workmen's compensation law
Minnesota
pendent child, there shall be paid to the widow, thirty-five
per centum of the monthly wages of deceased.
" (6) If the deceased employe1 leave a widow and one de-
pendent child, there shall be paid to the widow for the benefit
of herself and such child, forty per centum of the monthly
wages of deceased.
" (7) If the deceased employe" leave a widow and either two
or three dependent children, there shall be paid to the widow
for the benefit of herself and such children, fifty per centum of
the monthly wages of deceased.
"(8) If the deceased employe" leave a widow and four or
more dependent children, there shall be paid to the widow for
the benefit of herself and such children, sixty per centum of
the monthly wages of the deceased.
"(9) In case of re-marriage of a widow without children,
she shall receive a lump sum settlement equal to one-half of
the amount of the compensation remaining unpaid. In case
of re-marriage of a widow who has dependent children, the
unpaid balance of compensation which would otherwise be-
come due to her, shall be paid to such children.
" (10) If the deceased employe- leave a dependent orphan,
there shall be paid forty per centum of the monthly wages of
deceased, with ten per centum additional for each orphan in
excess of two, with a maximum of sixty per centum of such
wages.
"(11) If the deceased employe" leave a dependent husband
and no dependent child, there shall be paid to the husband
twenty-five per centum of the monthly wages of deceased.
" (12) If the deceased employe" leave no widow or children
or .husband entitled to any payment hereunder, but should
leave a parent or parents, either or both of whom are wholly
dependent on the deceased, there shall be paid, if only one
parent, twenty-five per centum of the monthly wages of the
deceased, and if both parents, thirty-five per centum of the
monthly wages of the deceased to such parent or parents.
"(13) If the deceased leave no widow or dependent child
or husband or parent entitled to any payment hereunder, but
leaves a brother, sister or grandparent wholly dependent on
him for support, there shall be paid to such dependent rela-
DEATH BENEFITS 611
Minnesota
tive, if but one, twenty-five per centum of the monthly wages
of the deceased, or if more than one, thirty per centum of the
monthly wages of the deceased, divided between or among
them share and share alike.
"(14) If compensation is being paid under Part 2 of this
act to any dependent, such compensation shall cease upon
the death or marriage of such dependent, unless otherwise
provided herein.
"(15) Partial dependents. — Partial dependents shall be
entitled to receive only that proportion of the benefits pro-
vided for actual dependents which the average amount of the
wages regularly contributed by the deceased to such partial
dependent at, and for a reasonable time immediately prior to
the injury, bore to the total wage of the deceased, during the
same time.
" (16) No dependents. — Expense of last sickness and burial
not exceeding one hundred dollars ($100.00), in addition to
the medical and hospital services and expenses provided by
Section 18.
" (17) Death compensation. — The compensation in case of
death shall be subject to a maximum compensation of ten
dollars ($10.00) per week and a minimum of six dollars ($6.00)
per week; provided, that if at the time of injury the employe
receives wages of less than six dollars ($6.00) per week, then
the compensation shall be the full amount of such wages per
week. This compensation shall be paid during dependency
not exceeding three hundred (300) weeks. Payments to be
made at the intervals when the wage was payable, as nearly
as may be.
" (18) In computing and paying compensation to orphans
or other children, in all cases, only those under eighteen years
of age, or those over eighteen years of age who are physically
or mentally incapacitated from earning, shall be included; the
former to receive compensation only during the time they are
under eighteen, the latter only for the time they are so incapac-
itated, within the period of three hundred (300) weeks."
"§34 (6) 'Child' or 'children' shall include posthumous
children and all other children entitled by law to inherit as
children of the deceased.
612 bradbury's workmen's compensation law
Nebraska
"(c) A dependent child or orphan shall be considered to
mean an unmarried child under the age of eighteen years or
one over that age, who is physically or mentally incapacitated
from earning."
NEBRASKA
" Part II, § 22. (Injuries resulting in death) (1) If death
results from the injuries and the deceased employe leaves one
or more dependents wholly dependent upon his earnings for
support at the time of the accident causing the injury, the
compensation, subject to the provisions of section 23, shall be
fifty per centum of the wages received at the time of injury,
but the compensation shall not be more than ten dollars per
week nor less than five dollars per week; Provided, that, if
at the time of injury the employe receives wages of less than
five dollars per week, then the compensation shall be the full
amount of such wages per week. This compensation shall be
paid during dependency, not exceeding three hundred and
fifty weeks from the date of the accident causing the injury.
" (2) If the deceased employ6 leaves no dependents wholly
dependent upon his earnings for support at the time of the
accident causing the injury, but leaves one or more depend-
ents only partly dependent upon his earnings for support at
said time, the compensation shall be the same proportion
of the benefits provided in subdivision 1 of this section for
persons wholly dependent as the average amount of the wage
regularly contributed by the deceased to such partial depend-
ents at, and for a reasonable time immediately prior to the
injury bears to the total wage of the deceased, during the
same time.
"(3) Upon the death of an employ^, resulting through
personal injuries as herein defined, whether or not there be
dependents entitled to compensation, the reasonable expenses
of the last sickness and burial, not exceeding one hundred
dollars, without deduction of any amount theretofore paid
for compensation or for medical expenses, shall be paid to his
dependents, or if there be no dependent, then to the personal
representatives of the deceased.
DEATH BENEFITS 613
Nebraska
"(4) Compensation under this Act to alien dependents,
widows, children and parents not residents of the United
States, shall be the same in amount as is provided in each case
for residents, except that at any time within one year after
the death of the injured employ^, the employer may, at his
option, commute all future installments of compensation to
be paid to such alien dependents by paying to them two-
thirds of the total amount of such future installments of
compensation. Alien widowers, brothers and sisters not resi-
dents of the United States shall not be entitled to any com-
pensation.
"(5) The consul-general, consul, vice-consul-general, or
vice-consul, of the nation of which the employe^ whose injury
results in death, is a citizen, or the representative of such
consul-general, consul, vice-consul-general, or vice-consul,
residing within the state of Nebraska, shall be regarded as the
sole legal representative of any alien dependents of the em-
ploye^ residing outside of the United States, and representing
the nationality of the employ^. Such consular officer or his
representative, residing in the state of Nebraska, shall have
in behalf of such non-resident dependents, the exclusive right
to adjust and settle all claims for compensation provided by
this Act and to receive for distribution to such non-resident
alien dependents all compensation arising hereunder.
" § 23* (Death of employe" receiving disability compensa-
tion.) The death of an injured employe prior to the expiration
of the period within which he would receive such disability
payment, shall be deemed to end such disability, and all lia-
bility for the remainder of such payment which he would have
received in case he had lived shall be terminated, but the em-
ployer shall thereupon be liable for the following death benefit
in lieu of any further disability indemnity:
"If the injury so received by such employe" was the cause
of his death, and such deceased employe" leaves dependents
as hereinbefore specified, wholly or partially dependent on
him for support, the death benefit shall be a sum sufficient,
when added to the indemnity which shall at the time of death
have been paid or become payable under the provisions of this
Act to such deceased employ6, to make the total compensation
614 BRADBURY'S WORKMEN'S COMPENSATION LAW
Nebraska
for the injury and death equal to the full amount which such
dependents would have been entitled to receive under the
provisions of section 22 hereof in case the accident had re-
sulted in immediate death, and such benefit shall be payable
in the same manner and subject to the same terms and condi-
tions in all respects, as payments made under the provisions
of said section 22. No deduction shall be made for the amount
which may have been paid for medical and hospital services
and medicines or for the expenses of the last sickness or burial.
If the employe die from some cause other than the injury,
there shall be no liability for compensation to accrue after
his death.
" § 24. (Dependents) The following persons shall be con-
clusively presumed to be wholly dependent for support upon
a deceased employe1:
" (a) A wife upon a husband with whom she is living at the
time of his death;
" (b) A husband upon a wife with whom he is living at the
time of her death;
"(c) A child or children under the age of sixteen years (or
over said age, if physically or mentally incapacitated from
earning) upon the parent with whom he is or they are living
at the time of death of such parent, there being no surviving
parent. In case there is more than one child thus dependent,
the death benefit shall be divided equally among them;
" (d) Compensation shall be payable under sections 22 and
23 to or on account of any child, brother or sister, only if and
while such child, brother or sister, is under the age of sixteen.
No compensation shall be payable under said sections to a
widow, unless she was living with her deceased husband at
the time of his death; provided that a wife or a husband living
in a state of abandonment for more than two years at the time
of the injury, or subsequently, shall not be a beneficiary under
this Act. The terms "child" and "children" shall include
step-children and adopted children if members of the de-
cedent's household at the time of his death, and shall include
posthumous children. If the compensation payable under
said sections to any person shall for any cause cease, the com-
pensation to the remaining persons entitled thereunder shall
DEATH BENEFITS 615
Nebraska
thereafter be the same as would have been payable to them
had they been the only persons entitled to compensation at
the time of the death of the deceased. If a widow or widower
of a deceased employe" shall remarry, then the compensation
benefits shall become payable to the child or children of such
widow or widower, if there be any such child or children; but
if there be no such child or children of such dependent widow
or widower, the rights of such widow or widower shall not be
affected by such remarriage.
" (e) In all other cases, questions 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; and in such other
cases, if there is more than one person wholly dependent, the
death benefit shall be divided equally among them, and per-
sons partly dependent, if any, shall receive no part thereof;
if there is no one wholly dependent and more than one person
partly dependent, the death benefit shall be divided among
them according to the relative extent of their dependency;
"(f) No person shall be considered a dependent, unless
he or she be a member of the family of the deceased employ6,
or bears to him the relation of widow or widower, or lineal
descendent, or ancestor, or brother, or sister;
"(g) Questions as to who constitute dependents and the
extent of their dependency shall be determined as of the date
of the accident to the employe^ and the death benefit shall be
directly recoverable by and payable to the dependent or de-
pendents entitled thereto, or their legal guardians or trustees.
No dependent of an injured employe" shall be deemed, during
the life of such employ^, a party in interest to any proceeding
by him for the enforcement of collection of any claim for
compensation, nor as respects the compromise thereof by such
employe?'
See Part II, § 30, as to savings or insurance as affecting
amount to be paid as compensation.
616 bkadbury's workmen's compensation law
Nevada
NEVADA
" § 25. Every workman coming within the provisions of
this Act who shall be injured in the course of employment,
or his dependents, as hereinafter denned, shall be entitled to
receive the following compensation:
"(a) In the event of death of any employe" or workman
coming within the provisions of this Act, his dependents, or
beneficiaries, shall be entitled to receive an amount equivalent
to fifty per cent of his average monthly earnings; but not less
than $20, nor more than $60 per month for a period of one
hundred months, but in no case to exceed the sum of $5,000,
and the burial expenses of such deceased workman shall be
paid not to exceed the sum of $125.
" (6) If an employe leaves no dependents of any kind, ex-
penses of his last sickness and burial shall be paid, not to ex-
ceed the sum of $125.
"§ 26. The following shall be conclusively presumed to be
wholly dependent upon a deceased employ6:
" (1) The surviving spouse, unless it be shown- that the
survivor wilfully deserted deceased without fault upon the
part of deceased, and if it be shown that the survivor deserted
deceased without fault upon the part of deceased, the sur-
vivor shall not be regarded as a dependent in any degree.
"(2) A child or children under sixteen years of age (and
over said age if physically or mentally incapacitated from
earning) whether actually dependent for support upon the
parent at the time of his or her death.
" (3) A parent of a minor entitled to tne earnings of the em-
ploye" shall be presumed to be dependent for a period not to
exceed four years.
" (4) If the deceased employe leaves dependent surviving
spouse, the full compensation shall be paid to such spouse;
but if the dependent surviving spouse dies before payment
is made in full, the balance remaining shall be paid to
the person or persons wholly dependent, if any, share and
share alike. If there be no person or persons wholly depend-
ent, then payment shall be made to partial dependents.
DEATH BENEFITS 617
New Hampshire
"(5) In all other cases questions 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; and in such other cases
if there is more than one person wholly dependent, the death-
benefit shall be equally divided among them, and persons
partially dependent, if any, shall receive no part thereof.
If there is no one wholly dependent and more than one person
partially dependent, the death benefit shall be divided among
them according to the relative extent of their dependency;
provided, however, that when a lump sum is paid as contem-
plated by this Act, the court or Commission in making distri-
bution thereof, shall take into consideration the contingent
rights of partial beneficiaries or the rights of those who may
become such after a wholly dependent child or children be-
come sixteen years of age.
"(6) Step-parents shall be regarded in this Act as parents.
"(7) Adopted child or children or step-child or children shall
be regarded in this Act the same as if issue of the body."
" § 30. Upon the marriage of a widow, she shall receive
once and for all, a lump sum equal to twelve times her monthly
allowance, not to exceed, however, the sum of $300; provided,
however, that allowance shall be made by the Commission for
the support of minor children under the age of sixteen years;
the total amount thereof to be not less than $10, nor more
than $35 per month, to be fixed by the Commission."
NEW HAMPSHIRE
"§6 (1) The amount of compensation shall be, in case
death results from injury:
"(a) If the workman leaves any widow, children or par-
ents, resident of this State, at the time of his death, then
wholly dependent on his earnings, a sum to compensate them
for loss, equal to one hundred and fifty times the average
weekly earnings of such workman when at work on full time
during the preceding year during which he shall have been in
the employ of the same employer, or if he shall have been
in the employment of the same employer for less than a year
618 Bradbury's workmen's compensation law
New Jersey
then one hundred and fifty times his average weekly earnings
on full time for such less period. But in no event shall such
sum exceed $3,000. Any weekly payments made under this
Act shall be deducted from the sum so fixed.
" (6) If such widow, children or parents at the time of his
death are in part only dependent upon his-earnings, such pro-
portion of the benefits provided for those wholly dependent
as the amount of the wage contributed by the deceased to
such partial dependents at the time of injury bore to the total
wage of the deceased.
"(c) If he leaves no such dependents, the reasonable ex-
penses of his medical attendance and burial, not exceeding
one hundred dollars.
"Whatever sum may be determined to be payable under
this Act in case of death of the injured workman shall be
paid to his legal representative for the benefit of such de-
pendents, or if he leaves no such dependents, for the benefit
of the persons to whom the expenses of medical attendance
and burial are due."
"Widow, children, or parents resident of this State." § 6.
NEW JERSEY
" § II, subd. 12. In case of death compensation shall be
computed, but not distributed, on the following basis:
" (1) Actual dependents.1
1 Under the New Jersey Act prior to the amendment in 1913, it was
held that where a workman was killed and left no widow, although leaving
father and mother dependent upon him, that such father and mother
were not entitled to compensation as the act did not specifically provide
for parents in cases where the workman did not leave a widow. Torregrosso
v. Universal Caster & Foundry Co., Essex Common Pleas, Sept. 20, 1912;
35 N. J. Law J. 331. This defect in the act which was pointed out by the
court was supplied by amendment to § 12 of Part II, by the amendment
contained in Chap. 174 of the Laws of 1913.
Under the New Jersey's Workmen's Compensation Act an award may
be made to a mother who is an actual dependent upon a deceased son, al-
DEATH BENEFITS 619
New Jersey
" For one dependent, thirty-five per centum of wages.
" For two dependents, forty per centum of wages.
"For three dependents, forty-five per centum of wages.
"For four dependents, fifty per centum of wages.
"For five dependents, fifty-five per centum of wages.
"For six or more dependents sixty per centum of wages.
"'Dependent' defined. Proviso. The term 'dependents'
shall apply to and include any or all of the following who are
though the son leaves no widow. Blanz v. Erie R. R. Co., N. J. Law, 000;
85 Atl. Rep. 1030.
Where a decedent leaves no widow, but leaves a father and mother ac-
tually dependent upon him, compensation under Section 12 of the Act
should be computed upon a basis of 25% of the decedent's wages for the
time fixed by the Statute. Tischman v. Central R. R. Co., 00 N. J. Law,
000; 87 Atl. Rep. 144.
The compensation to a mother actually dependent upon a deceased
son may be computed at 25% of the wages, although the son left a widow.
McFarland v. Central R. R. Co., 00 N. J. Law, 000; 87 Atl. Rep. 44.
Where the decedent left no widow, but left a mother actually dependent
upon him, it was held that compensation should be computed on the basis
of 25% of his wages for the number of weeks fixed by the New Jersey Act.
Quintan v. Barber Asphalt Paving Co., 00 N. J. Law, 000; 87 Atl. Rep. 127.
Under Section 12 of the New Jersey Workmen's Compensation Act,
making the compensation greater where a widow and father or mother
are left than where a widow alone is left, the words "actual dependents"
mean those who are actually dependent in fact on the workman. Miller
v. Public Service Ry. Co., 00 N. J. Law 000; 85 Atl. Rep. 1030.
Where a workman receives an injury from which he dies and he leaves
a widow, and a dependent father or mother, but no children, the amount
of compensation is fifty per cent of the wages, even though, under the
statute of distribution, the compensation goes to the widow and does not
go to the father or mother. Beach v. Public Service Ry. Co. (Essex Com-
mon Pleas), April, 1912; 35 N. J. Law J. 115; Miller v. Public Service Ry.
Co. (Essex Common Pleas), April, 1912; 00 N. J. Law J. 000. •
A child who has been lawfully adopted is a dependent and entitled to
compensation the same as any other child of a deceased workman. Yoke
v. Erie R. Co. (Hudson Common Pleas, March 31, 1913), 36 N. J. Law J.
154. In the last mentioned case the proceedings for the adopting of the
child had been carried through up to the point of actually filing the order
which had already been signed by the Surrogate at the time of the death
of the employe. An order was subsequently made on behalf of the infant
620 Bradbury's workmen's compensation law
New Jersey
dependent upon the deceased at the time of accident or death,
namely: husband, wife, parents, stepparents, grandparents,
children, stepchildren, grandchildren, posthumous children,
illegitimate children, brothers, sisters, half-brothers, half-
sisters. Legally adopted children shall, in every particular, be
considered as natural children; provided, however , that de-
pendency shall l>e presumed as to a widow who was living with
her husband at the time of his decease, and children under the
age of eighteen years; stepchildren and illegitimate children
shall be presumed to be dependent when they were a part of
decedent's household at the time of his death. Every pro-
vision of this act applying to one class shall be equally ap-
plicable to the other. Should any dependent of a deceased
employe1 die during the period covered by such weekly pay-
ments, or should the widow of a deceased employe" remarry
during such period, the right of such dependent or of such
widow to compensation under this section shall cease.
"Order of distribution. Compensation shall be computed
upon the foregoing basis. Distribution shall be made among
dependents, if more than one, according to the order of the
judge of the court of common pleas, who shall, when applied
to for that purpose, determine, upon the facts being presented
to him, the proportion to be paid to or on behalf of each de-
pendent according to the relative dependency. Payment
on behalf of infants shall be made to the surviving parent,
if any.
" (2) No dependents.
by which an order was made filing the decree of adoption nunc pro tunc
as of a date when the same was signed by the surrogate. It was held that
under such circumstances the child was entitled to compensation.
Stepchildren who are brought into the workman's household and are
supported toy him are dependents under the New Jersey Workmen's
Compensation Act. Klotz v. Newark Paving Co., 36 N. J. Law, 271.
Where an injury is due to the act of a third person the settlement by
the employe, or his dependents in case he is killed, with the person who
caused such injury does not merge the right to claim compensation from
the employer. Klotz v. Newark Paving Co., 36 N. J. Law J. 271 ; Perlsburg
v. Muller, 35 N. J. Law J. 202; Houghton v. Root Construction Co., 35
N. J. Law J. 332.
DEATH BENEFITS 621
Xew York
"Sickness and burial. Expenses of last sickness and burial,
the cost of burial, however, not to exceed one hundred dol-
lars.
"Orphans and minors. Proviso. In computing compensa-
tion to orphans or other children, only those under eighteen
years of age shall be included, and only during the period in
which they are under that age, at which time payment on
account of such child shall cease; provided, however, that pay-
ments to such physically or mentally deficient children as are
for such reason dependent shall continue during the full term
of compensation payment.
"Weekly compensation. Proviso. Duration. The com-
pensation in case of death shall be subject to a maximum
compensation of ten dollars per week and a minimum of five
dollars per week; provided, that if at the time of injury the
employe received wages of less than five dollars per week,
then the compensation shall be the full amount of such wages
per week. This compensation shall be paid during three
hundred weeks.
"Aliens excepted. Compensation under this schedule shall
not apply to alien dependents not residents of the United
States."
When compensation payments are consecutive and not
concurrent, including compensation for death, see § II,
14 (c), added by L. 1913, c. 174, in effect April 1, 1913.
NEW YORK
"§16. Death benefits. If the injury causes death, the
compensation shall be known as a death benefit and shall be
payable in the amount and to or for the benefit of the persons
following:
"1. Reasonable funeral expenses, not exceeding one hun-
dred dollars;
"2. If there be a surviving wife (or dependent husband)
and no child of the deceased under the age of eighteen years,
to such wife (or dependent husband) thirty per centum of the
622 bradbuey's workmen's compensation Iaw
New York
average wages of the deceased during widowhood (or depend-
ent widowerhood) with two years' compensation in one sum,
upon remarriage; and if there be surviving child or children of
the deceased under the age of eighteen years, the additional
amount of ten per centum of such wages for each such child
until of the age of eighteen years; in case of the subsequent
death of such surviving wife (or dependent husband) any sur-
viving child of the deceased employ6, at the time under eight-
een years of age, shall have his compensation increased to
fifteen per centum of such wages, and the same shall be pay-
able until he shall reach the age of eighteen years; provided
that the total amount payable shall in no case exceed sixty-six
and two-thirds per centum of such wages."
"3. (Provides 15% of wages for each child, not exceeding
66% to all, where no wife or dependent husband.)
"4. If the amount payable to surviving wife (or dependent
husband) and to children under the age of eighteen years
shall be less in the aggregate than sixty-six and two-thirds
per centum of the average wages of the deceased, then for
the support of grandchildren or brothers and sisters under the
age of eighteen years, if dependent upon the deceased at the
time of the accident, fifteen per centum of such wages for the
support of each such person until of the age of eighteen years;
and for the support of each parent, or grandparent, of the
deceased if dependent upon him at the time of the accident,
fifteen per centum of such wages during such dependency.
But in no case shall the aggregate amount payable under this
subdivision exceed the difference between sixty-six and two-
thirds per centum of such wages, and the amount payable as
hereinbefore provided to surviving wife (or dependent hus-
band) or for the support of surviving child or children.
"Any excess of wages over one hundred dollars a month
shall not be taken into account in computing compensation
under this section. All questions of dependency shall be
determined as of the time of the accident.
"§ 17. Aliens. Compensation under this chapter to aliens
not residents (or about to become nonresidents) of the United
States or Canada, shall be the same in amount as provided
for residents, except that the commission may, at its option,
DEATH BENEFITS 623
Ohio
or, upon the application of the insurance carrier, shall, com-
mute all future installments of compensation to be paid to
such aliens, by paying or causing to be paid to them one-half
of the commuted amount of such future installments of com-
pensation as determined by the commission."
Under the New York statute there is a presumption of
dependency in favor of widows and of children under the
age of eighteen. All others must prove dependency. It is
to be noted that it does not matter whether or not a woman
was living with her husband at the time of the accident
causing his death, so far as her right to compensation is con-
cerned. She must merely establish the relation of husband
and wife. Having done this she is entitled to compensation
for life, or until her remarriage. The payment to dependent
parents and grandparents is also for life, if the dependency
continues that long.
OHIO
"§ 1465-82. § 35, Act of 1913. In case the injury causes
death within the period of two years, the benefits shall be
in the amounts and to the persons following: 1
'The widow and minor children of a deceased workman with whom
he lived and whom he supported at the time of his death, and who had
at the time no property and income of their own, are wholly dependent
upon such deceased workman for support at the time of his death and are
entitled to compensation as such dependents. Re Elida A. Baird, Claim
No. 504, Ohio St. Lia. Bd. Awd., Nov. 11, 1912.
In a case of the death of a workman leaving a widow and minor child,
it was held not necessary for the application for compensation to be filed
by the administrator or executor of the deceased; that the minor child
being under disability of infancy and in the custody of her mother that
part of the compensation apportioned to such child will be made payable
to the mother for the use of the child. Re Laura M. Shaffer, Claim No. 4 1 ,
Ohio St. Lia. Bd. Awd., June 14, 1912.
An employ^ was killed in the course of his employment leaving surviving
a widow and a son 35 years of age, the latter being mentally and physically
deficient, but who, for a number of years prior to and at the time of the
624 bradbury's workmen's compensation law
Ohio
"1. If there be no dependents, the disbursements from the
state insurance fund shall be limited to the expenses provided
for in section forty-two hereof.
"2. If there are wholly dependent persons at the time of the
death, the payment shall be sixty-six and two-thirds per cent,
of the average weekly wages, and to continue for the remainder
of the period between the date of the death, and six years
after the date^rf the injury, and not to amount to more than
a maximum of thirty-seven hundred and fifty dollars, nor
less than a minimum of one thousand five hundred dollars.
"3. If there are partly dependent persons at the time of the
death, the payment shall be sixty-six and two-thirds per cent.
of the average weekly wages, and to continue for all or such
portion of the period of six years after the date of the injury,
as the board in each case may determine, and not to amount
to more than a maximum of thirty-seven hundred and fifty
dollars.
"4. The following persons shall be presumed to be wholly
dependent for support upon a deceased employed
"(a) A wife upon a husband with whom she lives at the
time of his death.
" (o) A child or children under the age of sixteen years (or
over said age if physically or mentally incapacitated from
death of his father was employed at a weekly wage of $7.50. The employe
who was killed had not been employed for a considerable time prior to
taking the employment in the position in which he was killed, which em-
ployment he entered upon the day preceding the day he received the
injury resulting in his death. It was held that the widow was wholly
dependent upon him for support and that the son was neither wholly, nor
partially, dependent upon him for support. Re Francis R. Williams,
Claim No. 296, Ohio St. Lia. Bd. Awd., November 15, 1912.
Where a father, mother and grown son constitute a family, and both
father and son are wage earners and both contributed to the family fund,
the son being considered as one of the family, and not as a boarder, the
mother may be partially dependent upon her son for support. Re Emma
Hoffman, Claim No. 2293, Ohio St. Lia. Bd. Awd., March, 1913.
Whether a woman whose husband is living is dependent in any degree
for support upon her grown son is a question of fact and there is no pre-
sumption in favor of such dependency. Re Emma Hoffman, Claim
No. 2293, Ohio St. Lia. Bd. Awd., March, 1913.
DEATH BENEFITS 625
Oregon
earning) upon the parent with whom he is living at the time
of the death of such parent.
" In all other cases, question of dependency, in whole or in
part, shall be determined in accordance with the facts in each
particular case existing at the time of the injury resulting in
the death of such employ^, but no person shall be considered
as dependent unless a member of the family of the deceased
employe, or bears to him the relation of husband or widow,
lineal descendant, ancestor or brother or sister. The word
"child" as used in this act, shall include a posthumous child,
and a child legally adopted prior to the injury.
§ 1465-83. § 36, Act of 1913. The benefits in case of death,
shall be paid to such one or more of the dependents of the
decedent, for the benefit of all the dependents as may be de-r
termined by the board, which may apportion the benefits
among the dependents in such manner as it may deem just
and equitable. Payment to a dependent subsequent in right
may be made, if the board deems it proper, and shall operate
to discharge all other claims therefor. The dependent or
person to whom benefits are paid shall apply the same to the
use of the several beneficiaries thereof according to their
respective claims upon the decedent for support, in com-
pliance with the finding and direction of the board.
"In all cases of death where the dependents are a widow
and one or more minor children, it shall be sufficient for the
widow to make application to the board on behalf of herself
and minor children;, and in cases where all of the dependents
are minors, the application shall be made by the guardian or
next friend of such minor dependents."
OREGON
" § 21. If any workman while he is subject to this Act and
in the service of an employer who is thus bound to contribute
to the Industrial Accident Fund shall sustain a personal
injury by accident arising out of and ;n the course of his em-
ployment caused by violent or external means he, or his
beneficiaries or dependents, if the injury result in death,
40
626 Bradbury's workmen's compensation law
Oregon
shall receive compensation according to the following sched-
ule:
" (a) Where death results from the injury and expenses of
burial shall be paid in all cases not to exceed one hundred
dollars ($100) in any case, and
"1. If the workman leaves a widow or invalid widower, a
monthly payment of thirty dollars ($30) shall be paid through-
out the life of the surviving spouse, to cease at the end of the
month in which remarriage shall occur; and the surviving
spouse shall also receive six dollars ($6) per month for each
child of the deceased under the age of sixteen years at the
time of the occurrence of the injury until such minor shall
reach the age of sixteen years, but the total monthly payment
under this paragraph (1) shall not exceed fifty dollars ($50).
Upon remarriage of a widow she shall receive once for all a
lump sum equal to ten times her monthly allowance, viz. : the
sum of three hundred dollars ($300), but the monthly pay-
ments for the child or children shall continue as before.
" (2) If the workman leaves no wife or husband but a child
or children under the age of sixteen years, a monthly pay-
ment of fifteen dollars ($15.00) shall be made to each child
until such child shall reach the age of sixteen years; 'provided,
however, that if any child is under the age of sixteen years
and over the age of fifteen years, he shall be entitled to re-
cover such payments for a period of one year, but the total
monthly payment shall not exceed fifty dollars ($50), and any
deficit shall be deducted proportionately among the bene-
ficiaries.
"(3) If the workman leaves no widow, widower, or child
under the age of sixteen years, but leaves a dependent or de-
pendents, a monthly payment shall be made to each depend-
ent equal to 50 per cent of the average monthly support ac-
tually received by such dependent from the workman during
the twelve months next preceding the occurrence of the in-
jury, but the total payment to all dependents in any case,
shall not exceed thirty dollars ($30) per month. If any de-
pendent is under the age of 16 years at the time of the occur-
rence of the injury, the payment to such dependent shall
cease when such dependent shall reach the age of 16 years,
DEATH BENEFITS 627
Rhode Island
excepting a daughter, the payment to whom shall cease when
she shall have reached the age of eighteen years. Provided,
however, that if any child is under the age of sixteen years
and over the age of fifteen years, he shall be entitled to re-
cover such payments for a period of one year. The payment
to any dependent shall cease if, and when, under the same
circumstances, the necessity creating the dependency would
have ceased if the injury had not happened.
" If the workman is under the age of 21 years and unmarried
at the time of his death, the parents or parent of the work-
man shall receive twenty-five dollars ($25) per month for
each month after his death until the time at which he would
have arrived at the age of 21 years, provided, however, that
such parents shall be entitled thereafter to compensation as
dependents under the provisions of the first clause of this
paragraph three.
"(4) In the event a surviving spouse receiving monthly
payments shall die leaving a child or children under the age
of 16 years, the sum he or she shall be receiving on account
of such child or children shall thereafter, until such child shall
arrive at the age of 16 years, be paid to the child increased to
fifteen dollars per month; provided, however, that if any such
child is under the age of sixteen years and over the age of
fifteen years he shall be entitled to recover such payments
for a period of one year, but the total to all children shall not
exceed the sum of fifty dollars ($50) per month.
"§ 21. * * * (J) A husband or wife of an injured work-
man, who has deserted said injured workman for more than
one year prior to the time of the injury or subsequently shall
not be a beneficiary under this act."
RHODE ISLAND
"Art. II, § 6. If death results from the injury, the em-
ployer shall pay the dependents of the employe wholly de-
pendent upon his earnings for support at the time of his in-
jury a weekly payment equal to one-half his average weekly
wages, earnings or salary, but not more than ten dollars nor
less than four dollars a week, for a period of three hundred
628 bradbuky's wobkmen's compensation law
Rhode Island
weeks from the date of the injury: Provided, however, that, if
the dependent of the employ^ to whom the compensation
shall be payable upon his death is the widow of such employe^
upon her death the compensation thereafter payable under
this act shall be paid to the child or children of the deceased
employe^ including adopted and stepchildren, under the age
of eighteen years, or over said age, but physically or men-
tally incapacitated, from earning, dependent upon the widow
at the time of her death. In case there is more than one child
thus dependent, the compensation shall be divided equally
among them. If the employe leaves dependents only partly
dependent upon his earnings for support at the time of his
injury, the employer shall pay such dependents for a period
of three hundred weeks from the date of the injury a weekly
compensation equal to the same proportion of the weekly pay-
ments herein provided for the benefit of persons wholly de-
pendent as the amount contributed annually by the employe
to such partial dependents bears to the annual earnings of
the deceased at the time of injury. When weekly payments
have been made to an injured employe1 before his death, the
compensation to dependents shall begin from the date of the
last of such payments, but shall not continue more than three
hundred weeks from the date of the injury: Provided, however,
that, if the deceased leaves no dependents at the time of the
injury, the employer shall not be liable to pay compensation
under this act except as specifically provided in section 9 of
this Article."
"Art. II, § 7. Dependents. The following persons shall be
conclusively presumed to be wholly dependent for support
upon a deceased employed —
" (a) A wife upon a husband with whom she lives or upon
whom she is dependent at the time of his death.
" (6) A husband upon a wife with whom he lives or upon
whom he is dependent at the time of her death.
" (c) A child or children, including adopted and step-
children, under the age of eighteen years, or over said age,
but physically or mentally incapacitated from earning, upon
the parent with whom he is or they are living or upon whom
he or they are dependent at the time of the death of such
DEATH BENEFITS 629
Rhode Island
parent, there being no surviving dependent parent. In case
there is more than one child thus dependent, the compensa-
tion hereunder shall be divided equally among them.
"In all other cases questions of entire or partial dependency
shall be determined in accordance with the fact as the fact
may have been at the time of the injury. In such other cases,
if there is more than one person wholly dependent, the com-
pensation shall be divided equally among them, and persons
partly dependent, if any, shall receive no part thereof during
the period in which compensation is paid to persons wholly
dependent. If there is no one wholly dependent and more than
one person partly dependent, the compensation shall be di-
vided among them according to the relative extent of their
dependency.
"§ 8. Dependents — how determined. No person shall be con-
sidered a dependent unless he is a member of the employees
family or next of kin, wholly or partly dependent upon the
wages, earnings or salary of the employe" for support at the
time of the injury."
"Art. II, § 14. Deductions from compensation. No savings
or insurance of the injured employ^, independent of this act,
shall be taken into consideration in determining the com-
pensation to be paid hereunder, nor shall benefits derived from
any other source than the employer be considered in fixing
the compensation under this act * * * }
"Art. II, § 15. Compensation — to whom paid. The com-
pensation payable under this act in case of the death of the
injured employe" shall be paid to his legal representatives; or,
if he has no legal representative, to his dependents entitled
thereto, or, if he leaves no such dependents, to the person to
whom the expenses for the burial and last sickness are due.
If the payment is made to the legal representative of the de-
ceased employ^, it shall be paid by him to the dependents or
other persons entitled thereto under this act. All payments
of compensation under this act shall cease upon the death of
1 The remainder of the section contains provisions inflicting a penalty
for deducting any such insurance benefit from the compensation due under
this act, as am'd by L. 1913, c. 936 and 937.
630 bradbury's workmen's compensation law
Texas
the employe from a cause other than or not induced by the
injury for which he is receiving compensation."
"Art. II, § 16. Minors and mentally incompetent. In case
an injured employe" is mentally incompetent, or, where death
results from the injury, in case any of his dependents entitled
to compensation hereunder are mentally incompetent or
minors at the tkne when any right, privilege or election accrues
to him or them under this act, his conservator, guardian, or
next friend may, in his behalf, claim and exercise such right,
privilege, or election, and no limitation of time in this act
provided shall run so long as such incompetent or minor has
no conservator or guardian."
TEXAS
"Part I, § 8. If death should result from the injury, the
association hereinafter created, shall pay to the legal bene-
ficiary of the deceased employ6 a weekly payment equal to
60 per cent of his average weekly wages, but not more than
fifteen dollars nor less than five dollars a week, for a period of
three hundred and sixty weeks from the date of injury; pro-
vided, that the compensation herein provided for shall be
distributed according to the law providing for the distribu-
tion of other property of deceased.
"§ 9. If the deceased employe' leaves no legal beneficiaries,
or creditors, the association shall pay all expenses incident
to his last sickness, and in addition a funeral benefit not to
exceed one hundred dollars; provided, where the deceased
leaves no beneficiaries as provided herein, but leaves creditors,
the association shall be liable to such creditors, for an amount
not exceeding the amount that would otherwise have been
due beneficiaries, which amount paid shall not exceed amount
due such creditor or creditors."
"§ 16. In all cases of injury resulting in death, where such
injury was received in the course of employment, cause of
action shall survive."
DEATH BENEFITS 631
Washington
WASHINGTON
"§ 5. Each workman who shall be injured whether upon the
premises or at the plant or, he being in the course of his em-
ployment, away from the plant of his employer, or his family
or dependents in case of death of the workman, shall receive
out of the accident fund compensation in accordance with the
following schedule, and, except as in this act otherwise pro-
vided, such payment shall be in lieu of any and all rights of
action whatsoever against any person whomsoever.
" (a) Where death results from the injury the expenses of
burial shall be paid in all cases, not to exceed seventy-five
dollars ($75) in any case, and
" (1) If the workman leaves a widow or invalid widower, a
monthly payment of twenty dollars ($20) shall be made
throughout the life of the surviving spouse, to cease at the
end of the month in which remarriage shall occur; and the
surviving spouse shall also receive five dollars ($5) per month
for each child of the deceased under the age of sixteen years
at time of the occurrence of the injury until such minor child
shall reach the age of sixteen years, but the total monthly
payment under this paragraph (1) of subdivision (a) shall
not exceed thirty-five dollars ($35). Upon remarriage of a
widow she shall receive, once and for all, a lump sum equal to
twelve times her monthly allowance, viz. : the sum of two hun-
dred forty dollars ($240) but the monthly payment for the
child or children shall continue as before.
"(2) If the workman leaves no wife or husband, but a
child or children under the age of sixteen years, a monthly
payment of ten dollars ($10) shall be made to each such child
until such child shall reach the age of sixteen years, but the
total monthly payment shall not exceed thirty-five dollars
($35), and any deficit shall be deducted proportionately
among the beneficiaries.
"(3) If the workman leaves no widow, widower, or child
under the age of sixteen years, but leaves a dependent or de-
pendents, a monthly payment shall be made to each depend-
ent equal to fifty per cent of the average monthly support
632 bradbury's workmen's compensation law1
Washington
actually received by such dependent from the workman dur-
ing the twelve months next preceding the occurrence of the
injury, but the total payment to all dependents in any case
shall not exceed twenty dollars ($20) per month. If any de-
pendent is under the age of sixteen years at the time of the
occurrence of the injury, the payment to such dependent shall
cease when s^ch dependent shall reach the age of sixteen
years. The payment to any dependent shall cease, if and
when, under the same circumstances, the necessity creating
the dependency would have ceased if the injury had not
happened.1
" If the workman is under the age of twenty-one years and
unmarried at the time of his death, the parents or parent of
the workman shall receive twenty dollars ($20) per month,
for each month after his death, until the time at which he
would have arrived at the age of twenty-one years.
"(4) In the event a surviving spouse receiving monthly
payments shall die, leaving a child or children under the
age of sixteen years, the sum he or she shall be receiving on
account of such child or children shall be thereafter, until
such child shall arrive at the age of sixteen years, paid to the
child increased 100 per cent., but the total to all children shall
not exceed the sum of thirty-five dollars ($35) per month.
(Subdivisions (b), (c), (d), (/), (g) and (h) relate to disability
benefits. See Chapter XII. Subdivision (/) relates to reserves.
See Chapter XXVIII.)
" (£) A husband or wife of an injured workman, living in a
state of abandonment for more than one year at the time of
the injury or subsequently, shall not be a beneficiary under
this act.
1 Under Section 5, Subd. 3 of the Washington Workmen's Compensa-
tion Act, awarding to a dependent a monthly payment not exceeding $20
a month, and providing that if the workman is under age and unmarried
his parent shall receive that sum each month until he would have reached
the age of twenty-one years, it was held that a dependent mother of an
employee nineteen years of age when killed, was entitled to $20 a month
so long as her dependent condition continued. Boyd v. Pratt, 72 Wash.
306; 130 Pac. Rep. 371.
DEATH BENEFITS 633
Washington
" (j) If a beneficiary shall reside or remove out of the state
the department may, in its discretion, convert any monthly
payments provided for such case into a lump sum payment
(not in any case to exceed four thousand dollars ($4,000) upon
the theory, according to the expectancy of life as fixed by the
American Mortality Table, that a monthly payment of twenty
dollars ($20) to a person thirty years of age is worth four
thousand dollars ($4,000), or, with the consent of the bene-
ficiary, for a smaller sum. ,
" (k) Any court review under this section shall be initiated
in the county where the workman resides or resided at the
time of the injury, or in which the injury occurred." (As
am'd by L. 1918, c. 148, approved and in effect March 21, 1918.)
" § 3- * * * Dependent means any of the following named
relatives of a workman whose death results from any injury
and who leaves surviving no widow, widower, or child under
the age of sixteen years, viz.: invalid child over the age of six-
teen years, daughter, between sixteen and eighteen years of
age, father, mother, grandfather, grandmother, step-father,
step-mother, grandson, granddaughter, step-son, step-daugh-
ter, brother, sister, half-sister, half-brother, niece, nephew,
who, at the time of the accident, are dependent, in whole or
in part, for their support upon the earnings of the workman.
Except where otherwise provided by treaty, aliens, other than
father or mother, not residing within the United States at the
time of the accident, are not included.
"Beneficiary means a husband, wife, child or dependent of
a workman; in whom shall vest a right to receive payment
under this act.
"Invalid means one who is physically or mentally incapaci-
tated from earning."
"The word 'child,' as used in this act, includes a post-
humous child, a child legally adopted prior to the injury, and
an illegitimate child legitimated prior to the injury."
634 bbadbury's workmen's compensation law
West Virginia
WEST VIRGINIA
" § 33. In case the injury causes death within the period of
ninety days, the benefits shall be in the amounts and to the
persons following:
" (1) If there be no parent or dependents, the disbursement
from the workmen's compensation fund shall be limited to
the expense provided for in sections twenty-seven and twenty-
nine.
" (2) If the deceased employe" be under the age of twenty-
one and unmarried and leave a dependent father or mother,
the father, or if there be no father, the mother shall be en-
titled to a payment of fifty per cent of the average weekly
wage, not exceeding six dollars per week, to continue until
the employe" would have been twenty-one years of age.
" (3) Dependent, as used in this act, means a widow, in-
valid widower, child under the age at which he or she may be
lawfully employed in any industry, invalid child over such
age, father, mother, grandfather or grandmother, who at the
time of the injury causing death is dependent in whole or in
part for his or her support upon the earnings of the employe.
"(4) If the deceased employe" leave a widow or invalid
widower the payment shall be twenty dollars per month
until the death or remarriage of such widow or widower; and
in addition five dollars per month for each child under the
age at which he or she may be lawfully employed in any in-
dustry, to be paid until such child reaches such age; pro-
vided, that the total payment shall not exceed thirty-five
dollars per month.
" (5) If the deceased employe" be an adult and there be no
widow, widower or child under the age at which he or she
may be lawfully employed in any industry, but there are
wholly dependent persons at the time of death, the payment
shall (except in the case named in clause two of this section)
be fifty per cent of the average monthly support actually re-
ceived from the employe during the preceding twelve months,
and to continue for the remainder of the period between the
date of death and six years after the date of injury, and not
DEATH BENEFITS 635
West Virginia
to amount to more than a maximum of twenty dollars per
month.
" (6) If there be no widow, widower, or child under the age
at which he or she may be lawfully employed in any industry,
or dependent persons, but there are partly dependent persons
at the time of death, the payment shall be fifty per cent of
the average monthly support actually received from the em-
ploye during the preceding twelve months, and to continue
for such portion of the period of six years after the date of
injury as the commission in case may determine, and not to
amount to more than a maximum of twenty dollars per month.
"§34. The benefits, in case of death, shall be paid to such
one or more dependents of the decedent, or to such other per-
son, for the benefit of all of the dependents, as may be deter-
mined by the commission which may apportion the benefits
among the dependents in such manner as it may deem just
and equitable. Payment to a dependent subsequent in right
may be made if the commission deem proper, and shall oper-
ate to discharge all other claims therefor.
" §-35. The dependent or person to whom benefits are paid
shall apply the same to the use of the several beneficiaries
thereof according to their respective claims upon the de-
cedent for support, in compliance with the finding and direc-
tion of the commission.
"§ 36. Notwithstanding anything herein contained, no
sum shall be paid to a widow or widower who shall have been
living separate and apart from, or have been abandoned by
the employ^ for twelve months next preceding the injury,
and who shall not have been supported by him or her during
such time. But in the event a chancery suit or other action
be pending concerning the relations of said widow, or widower
to said employ^, then payment shall be made subject to the
final adjudication of said suit or action."
" § 39. * * * No person shall be excluded as a dependent
by reason of being a non-resident alien, and non-resident
aliens may be officially represented by the consular officers of
the country of which such aliens may be citizens or subjects."
636 bbadbury's workmen's compensation law
Wisconsin
WISCONSIN1
"§2394-9. (3) Where death proximately results from the
injury and the deceased leaves a person or persons wholly
1 See Wisconsin cases cited in Article B of this Chapter.
The husband of the applicant was employed as a night fireman in a
saw mill, his duty being to fire a set of four boilers. In an adjoining room
there were three boilers tended by one Beckman. Sometime after one
o'clock on a rainy morning Beckman missed the deceased and started a
search for him. Twenty feet from the boiler room door he found the de-
ceased lying on the wet ground at the foot of the platform on which was
an electric transformer. An iron poker nine feet long, used for stoking
fires, was twisted in the electric wires fourteen feet above the body. The
deceased lay at the end of the poker and it was admitted, that he met
death by electrocution. There was nothing in the evidence to show any
duty required the presence of the deceased at the spot where he met death.
It was contended by the employer that death was not proximately caused
by accident and that at the time of the death of the deceased he was not
performing the duties incidental to his employment. The commission
refused compensation on the ground that "compensation is rightly charged
against the employer — the industry where the employee is injured by
reason of some hazard incidental to his employment. True, the purpose
of the law is to relieve not only the injured employee but the family — those
dependent upon the employee — and also to prevent a burden falling upon
the public. But the law now here indicates that this burden should be
placed upon the employer, representing the industry, except where the in-
dustry is in some degree responsible for the injury." Anna Schroeder v.
Barker & Stewart Lumber Co., Wis. Indus. Com., Nov. 20, 1912.
The husband of the applicant was an engineer at the almshouse. He
was found dead in a manhole where he had been sent by the chief en-
gineer, with instructions to turn off a valve in a steam pipe. His body was
found with the chin and both hands resting upon a conduit and electric
wires heavily charged with electricity, indicating that he was electrocuted.
The employer alleged that the workman had been guilty of wilful mis-
conduct. The Commission decided, from the testimony, that the acci-
dent proximately caused death, and that there was no wilful misconduct.
As the deceased was earning more than $750 a year at the time of his
death, compensation was awarded in the sum of $3,000 to be paid in
weekly instalments. Mary Hunt v. Milwaukee County, Wis. Indus. Com.,
Oct. 21, 1912.
DEATH BENEFITS 637
Wisconsin
dependent upon him for support, the death benefit shall be
as follows:
" (a) In case the injured employee was permanently totally
disabled, a sum equal to four times his average annual earn-
ings, but which, when added to the disability indemnity paid
and due at the time of death, shall not exceed six times his
average annual earnings.
"(b) In case the injured employee was not permanently
totally disabled, such sum which, when added to the dis-
ability indemnity paid and due at the time of his death, shall
equal four times his average annual earnings.
" (4) If death occurs to an injured employee other than as a
proximate result of the accident, before disability indemnity
ceases, death benefit shall be as follows:
"(a) Where the accident proximately causes permanent
total disability, it shall be the same as if the accident had
caused death.
"(b) Where the accident proximately causes permanent
partial disability, liability shall exist for such benefit as shall
fairly represent the proportionate extent of the impairment
of earning capacity in the employment in which the deceased
was working at the time of the accident or other suitable em-
ployment, caused by such disability.
" (c) In case the deceased employee leaves no one wholly
dependent upon him for support, but one or more persons
partially dependent therefor, the death benefit shall not exceed
four times the amount devoted by deceased, during the year
immediately preceding his death, to the support of such de-
pendents and shall be apportioned according to the percentage
that the amount devoted by the deceased to the support of
such person or persons, for the year immediately prior to the
accident, bears to the average annual earnings of the de-
ceased.
" (d) If the deceased employee leaves no person dependent
upon him for support, and the accident proximately causes
death, the death benefit shall consist of the reasonable ex-
pense of his burial, not exceeding one hundred dollars.
"(e) Death benefit shall be paid in weekly instalments
corresponding in amount to sixty-five per cent of the weekly
638 bbadbtjry's workmen's compensation law
Wisconsin
earnings of the employee, until otherwise ordered by the com-
mission.
"§2394-10, subd. 3. The following shall be conclusively
presumed to be solely and wholly dependent for support
upon a deceased employee:
" (a) A wife upon a husband with whom she is living at the
time of his death.1
1 A workman was killed by a car which was accidentally dumped upon
him by fellow employees. The widow and son lived in Hungary. The
employer contended that the applicant was not living with her husband
within the meaning of the compensation act. It appeared that the de-
ceased came to this country about 33^ years before his death. He did
not return to his wife but kept up a desultory correspondence through
friends, neither being able to write. He also sent her money. It appeared
that he sent her $21 shortly before his death. It was held that the hus-
band and wife were to be considered as living together even though they
might be separated by a great distance; that they were living together and
not living apart when there was neither legal nor actual separation in the
bonds of matrimony. The Commission, therefore, awarded the widow
four times the annual earnings of the deceased to be paid in monthly in-
stalments. Jelena Nevadjic v. Northwestern Iron Co., Dec. Wis. Indus.
Com., June 14, 1912; aff'd by the Supreme Court of Wisconsin; North-
western Iron Co. v. Industrial Commission of Wis., 000 Wis. 000; 142
N. W. Rep. 271.
The respondent's husband was killed. The widow resided in Hun-
gary. Under a stipulation it was directed that the employer pay $2100
in monthly instalments corresponding to the monthly wages of the de-
ceased. Marthias Mueller v. Milwaukee Electric Ry. Co., Wis. Indus. Com.,
Feb. 15, 1913.
The husband of the applicant was employed as an electrician's helper.
He fell through a hole in a floor and was killed. He left a widow and two
children. His average annual wage exceeded $750. Under a stipulation
the employer was directed to pay $3,000 in instalments of $31.25 every
two weeks. Christine Race v. Mitchell Lewis Motor Co., Wis. Indus. Com.,
Nov. 25, 1912.
The applicant's husband was killed while employed as a miner under a
stipulation. The employer was directed to pay $2566. in monthly instal-
ments corresponding to the monthly wages of the deceased. Sofia Cokrala
v. Montreal Mining Co., Wis. Indus. Com., Jan 30, 1913.
The husband of an applicant fell from a purifying box and died from
his injuries. Without dispute the employer consented to an order to pay
DEATH BENEFITS 639
Wisconsin
" (b) A husband upon a wife with whom he is living at the
time of her death.
" (c) A child or children under the age of eighteen years (or
over said age, but physically or mentally incapacitated from
earning), upon the parent with whom he or they are living at
the time of the death of such parent, there being no surviving
dependent parent. In case there is more than one child thus
dependent, the death benefit shall be divided between such
dependents in such proportion as may be determined by the
commission after considering the ages of such dependents and
other facts bearing on such dependency.
"In all other cases questions of entire or partial dependency
shall be determined in accordance with the fact,1 as the fact
$3,000 in semi-monthly payments of $31.25. Jane Tanner v. Milwaukee
Gas Light Co., Wis. Indus. Com., Feb. 19, 1912.
The applicant's husband while building a barn fell from the roof and
was killed. The only question involved related to the annual wage, which
the evidence showed as amounting to $525. The employer was therefore
directed to pay to the widow the sum of $2115, in quarterly payments.
Millie Nelson v. LaCrosse County, Wis. Indus. Com., Feb. 13, 1912.
In the case of another employee killed in the same accident it was found
that his annual earnings were $650, and an award of $2600 in quarterly
payments was made. Katherine G. Machey v. LaCrosse County, Wis.
Indus. Com., Feb. 13, 1912.
1 The applicant's son, a forest ranger, was killed by a falling tree. It
was shown that the applicant owned considerable property, conducted a
little curio store and received a Government pension of $12. a month. It
was customary for her son to turn over to her his monthly salary of $75.
Her annual income from all other sources was $259. a year. The Com-
mission determined that it cost the applicant $500 a year to live and that
the son's contribution to this cost was the difference between $500 and
$259 or in other words, the sum of $241. The award was that the em-
ployer pay $960 in monthly instalments. Alvina Dougherty v. State of
Wisconsin, Wis. Indus. Com., June 14, 1912.
The applicant's son, who was twenty years of age at the time of his
death, was killed by a falling tree. He had been employed as a sawyer at
$30 a month and board. It appeared that the father, who was an ap-
plicant for compensation, owned a farm and that of the sum of $550 a
year earned by the deceased, he had contributed $100 a year to the ap-
plicant's support. The Commission made an award that the employer
should pay four times $100 in weekly instalments of $10.58 and an addi-
640 bkadbuby's workmen's compensation law
Wisconsin
may be at the time of the accident to the employee; and in
such other cases, if there is more than one person wholly de-
pendent, the death benefit shall be divided equally among
them, and persons partially dependent, if any, shall receive
no part thereof; and if there is more than one person partially
dependent, the death benefit shall be divided among them
according to the relative extent of their dependency.
"4. No person shall be considered a dependent unless a
member of the family of the deceased employee, or one who
bears to him the relation of husband or widow, or lineal de-
scendant, or ancestor, or brother, or sister.
"5. Questions as to who constitute dependents and the
extent of their dependency shall be determined as of the date
of the accident to the employee, and their right to any death
benefit shall become fixed as of such time, irrespective of any
subsequent change in conditions; and the death benefit shall
be directly recoverable by and payable to the dependent or
dependents entitled thereto or their legal guardians or trustees;
provided that in case of the death of a dependent whose right
to a death benefit has thus become fixed, so much of the same
as is then unpaid shall be recoverable by and payable to his
tional sum of $5 for medical expenses. Fetts Pliska v. Hatton Lumber Co.,
Wis. Indus. Com., June 14, 1912. In the last mentioned case the term
"support" was defined to mean necessary food, shelter, clothes, etc. to
meet daily necessities of the dependent, the extent of the support to be
determined by the amount devoted to those purposes during the year
preceding the death of the employee; ■
A son of the applicantwas-empHsyed on a steam shovel crew and suf-
fered injuries which caused" death! -His average annual wages amounted
to $525. It was found that the Applicant was partially dependent upon
the deceased to the extent of $282;84 a year. The employer was directed
to pay four times the sum of the annual wages, in weekly instalments of
$10.10. Dojak v. St. Paul Minneapolis, & Savlt. Ste. Marie Ry^ Wis.
Indus. Com., Jan 24, 1913.
The applicants son fell from a bridge upon which he was working and
was killed. It was held that the applicant who was the father of the de^
ceased workman was not dependent upon his son's earnings and the em-
ployer was ordered to pay funeral expenses of $100. and a doctor's bill of
$2.00. Frank A. Wind/elder v. City of Milwaukee, Wis. Indus. Com.,
December 21, 1911.
death benefits 641
Wisconsin
personal representatives in gross. No person shall be excluded
as a dependent who is a non-resident alien.
"6. No dependent of an injured employee shall be deemed,
during the life of such employee, a party in interest to any
proceeding by him for the enforcement or collection of any
claim for compensation, nor as respects the compromise
thereof by such employee.
41
CHAPTER XII
DISABILITY BENEFITS
Page
ARTICLE A— Introduction 644
Page
1. Classification of dis-
ability 644
2. Pain and suffering not
compensated 645
3. Computing waiting pe-
riod; CONSECUTIVE OR
non-consecutive days 646
4. Deducting hospital fees
from compensation. . . 646
5. Infant, " probable earn-
ings" 646
6. Sundays, holidays and
shutdowns occurring
in period for which
compensation is due . . 647
7. Compensation for one
day 647
8. Increased period of dis-
ability by failure to
follow physicians' in-
structions 647
9. Voluntary idleness of
workman as tending
to prolong disability . 647
10. Reduced earnings owing
to general fall in
WAGES 648
11. Workmen not entitled
to com pensation
while in prison 648
12. Dismissal for miscon-
duct OF WORKMAN SUF-
fering from partial
permanent disability 648
13. Vocational diseases;
contracted partly in
the employment of
two employers; APPOR-
tioning compensation 649
14. Weekly payments re-
quired 649
15. Place of payment of
compensation 650
16. State institution; com-
pensation PAYMENTS
PART OF CURRENT EX-
PENSES 650
17. Payment of less than
statutory amount as
basis of release 650
18. Divorced man paying al-
imony is "single" for
compensation p u r-
POSES 651
ARTICLE B— Permanent Total Disability 651
Page
1. Total incapacity; re- 2. Incapacity to do regular
fusal of former em- work 651
ployers to supply work 3. injuries amounting to
to injured employe . . . 651 permanent total disa-
BILITY 652
642
DISABILITY BENEFITS 643
Contents of chapter
Page
ARTICLE C — Permanent Partial Disability 653
Page
1. Minimum amount pay- 6. Loss of use of fingers
able in all cases of without amputation . . 656
specific indemnity 653 7. injuries to and losses of
2. Under schedule for spe- fingers not other-
cific indemnities two wise classified . 656
weeks waiting period 8. loss of toes 658
should not be de- 9. loss of one eye 659
ducted 653 10. One eye so injured that
3. Consecutive and not both cannot be used . 664
concurrent payment 11. complete blindness
for temporary disa- caused to eye of
bility and specific in- which sight partially
demnity 654 destroyed 664
4. loss of several fingers; 12. removal of eye already
consecutive payments blind 665
for each, or concur- 13. loss of hand when
rent payments for all 655 other hand already
5. Amputation of finger injured 665
when wound healing . 655 14. Injuries to legs 666-
ARTICLE D— Temporary Total Disability 667
Page
1. Unsuccessful efforts to 4. Workmen earning same
obtain employment. . . 667 wages as before the
2. Waiting for opportune- injury 668
ty to have operation 5. Miscellaneous specific
performed at hospital 667 cases in which compen-
3. Heart trouble develop- sation was awarded . . 668
ing after injury 668
ARTICLE E— Temporary Partial Disability 670
Page
1. Ability to do light work after accident need
after accident; ex- not equal wages be-
aggeration of injury 670 fore injury 672
2. Inability to obtain em- 4. Workmen receiving
ployment in district same wages after as
where workman lives 671 (or higher than) be-
3. Wages and compensation fore injury 672
644 bradbury's workmen's compensation law
Classification of disability
Page Page
5. Wages and compensa- 8. Disability made mobe
tion in excess of wa- sehious bt illness or
ges before accident . . 673 other contributing
6. Clumsiness due to in- cause 674
JURY AS GROUND OF IN- 9. Re-CURRENT ATTACKS OF
capacity 674 industrial disease . . . 675
7. Disability by ^disease 10. Miscellaneous injuries
accelerated by acci- for which compensa-
dent; basis of com- tion awarded 675
pensation 674
ARTICLE F — Miscellaneous Cases 676
Page
1. Double compensation . . 676 benefits to which em-
2. Deducting insurance ployes contribute . . . 677
ARTICLE G — Specific provisions of Various Statutes 678
Page
Arizona 678
California. . ; 679
Connecticut 685
Illinois 687
Iowa 691
Kansas 694
Maryland 694
Massachusetts 695
Michigan . . 697
Minnesota 699
Nebraska 701
Nevada 704
New Hampshire 705
New Jersey 706
New York 709
Ohio 712
Oregon , 714
Rhode Island 718
Texas...: , 720
Washington 721
West Virginia 723
Wisconsin 724
ARTICLE A— INTRODUCTION
1. Classification of disability.
Disability, or incapacity, may be permanent total, per-
manent partial, temporary total, or temporary partial.
Very few of the acts attempt to define all the degrees of
incapacity or disability. In some of the statutes permanent
total disability is defined to mean the loss of both legs or
both arms, or both eyes, or any two thereof, such as one
DISABILITY BENEFITS 645
Fain and suffering not compensated
leg and one arm, etc., or paralysis or other condition per-
manently incapacitating the workman from performing
any work at any gainful occupation. Some of the statutes
provide for payments of specific sums for the loss of a mem-
ber. Others leave the question of compensation to depend
entirely upon the degree of disability or incapacity in any
particular case.
Speaking generally in cases of partial disability the com-
pensation is based on loss of earning power.
Most of the statutes contain some limitation in respect
to payments for disability. They usually limit the total
amount to be paid in any event as well as the number of
weeks, months or years for which the master is liable for
compensation in any case of disability. This is not the
universal rule, however. The most frequent exceptions are
found in cases of total permanent disability. A number of
the statutes allow compensation for life when a workman
is totally and permanently disabled.
2. Pain and suffering not compensated.
The Act does not give compensation in respect of pain and
suffering. Where a workman is in receipt of the same amount
of wages as he earned before the accident, he cannot recover
any compensation until such time as he may become in-
capable of earning that amount. Irons v. Davis & Timmins
(1899), 80 L. T. 673; 1 W. C. C. 26.
An employe1 employed at a yearly salary, who sustains an
injury resulting in temporary disability only, is not entitled
to compensation where, in accordance with the terms of his
contract, no reduction of salary is made on account of his
loss of time. Re A. Costello, Claim No. 4268, Ohio St. Lia.
Bd. Awd., May 19, 1913. In the last-mentioned case the
Board said: "As the injury to the applicant did not result
in any embarrassment of his earning capacity, and as the
Act does not contemplate compensation on account of the
injury itself or the pain or suffering therefrom, we do not
646 BRADBURY'S WORKMEN'S COMPENSATION LAW
Infant, "probable earnings"
think the applicant is entitled to an award and his claim will
therefore be denied."
3. Computing waiting period; consecutive or non-consec-
utive days.
The incapacity for two weeks for which compensation is
not paid includes either consecutive or non-consecutive days.
See Bulletin No. 2, Mass. Indus. Ace. Board, Jan. 1913, p. 9.
4. Deducting hospital fees from compensation.1
An injured workman was treated at a hospital where the
fees were paid by the employers, who claimed that they were
entitled to a deduction for the fees so paid. It was held that
the payment was clearly a benefit to the workman within the
meaning of Schedule I (3), of the British Act and the em-
ployers could therefore deduct the fees so paid from the
compensation. Suleman v. Owners of the "Ben Lomond"
(1909), 2 B. W. C. C. 499.
5. Infant, " probable earnings."
Where a minor is injured compensation may be awarded
on the theory that he would "probably be earning" higher
wages if it were not for the injury. Edwards v. The Alyn
Steel Tinplate Co. (1910), 3 B. W. C. C. 141. If a boy eight-
een or nineteen years of age, who had recently begun work,
and was earning only five or six dollars a week, should lose
an arm, it would be a manifest injustice to compensate him
on the basis of his present wages, because the loss to him
would be much more serious, than it would to a man of
fifty. Some of the statutes therefore contain specific pro-
1 Such a question usually could not arise under the statutes of the
various States, as they require the employer to furnish medical attention
to a limited amount. Of course if the medical fees exceeded the statutory
limitation in any case the principle of the case in the text might apply,
but this is doubtful. The British Act does not have any provision for
medical attention.
DISABILITY BENEFITS 647
Voluntary idleness of workman as tending to prolong disability
visions on this subject. It is doubtful how far the doctrine
of "probable earnings" can be applied without specific
statutory authority.
6. Sundays, holidays and shutdowns occurring in period
for which compensation is due.
The Massachusetts Industrial Accident Board has ruled
that compensation should not be deducted for Sundays,
holidays or shutdowns which intervene between the fifteenth
day after the injury and the time incapacity ceases. Bul-
letin No. 2, Mass. Indus. Ace. Bd., Jan. 1913, page 8.
7. Compensation for one day.
Where compensation to injured employes is to be paid for
a single day the payment shall be computed on the basis of
one-sixth of the weekly earnings of such employe. Ruling
of Mich. Indus. Ace. Bd., January, 1913.
8. Increased period of disability by failure to follow physi-
cians' instructions.1
Where an emplpye" suffered from eczema caused by acids
in the goods which he was required to handle, and refused to
follow the instructions of a physician and it appeared that
he could have been cured in all probability at a period con-
siderably earlier than he actually was cured if he had followed
such instructions, it was held that he was entitled to compen-
sation only for the period during which he would have been
disabled had he followed such instructions. Riker y. Lion-
dale Bleach Dye and Print Works, 36 N. J, Law J. 305.
9. Voluntary idleness of workman as tending to prolong
disability.
The judge, who sat with a medical assessor, came to the
conclusion that if the workman had taken proper steps to
1 See Chapter VI, Art. B, paragraph 26, for cases of refusal of work-
man to undergo surgical operation.
648 bbadbury's workmen's compensation law
Dismissal for misconduct
obtain exercise which he ought to have taken more than a
year before the hearing, he would have recovered from any
disability, and that his present state was due only to want
of condition arising from long-continued and unnecessary
idleness. Compensation, therefore, was denied. The deci-
sion of the County Court judge was sustained on appeal.
Upper Forest and Worcester Steel and Tinplate Co. v. Grey
(1910), 3 B. W. C. C. 424.
10. Reduced earnings owing to general fall in wages.
A workman, who in the course of his employment, met
with an accident necessitating the amputation of his right
hand, subsequently accepted employment in a different
capacity, receiving the same wages he had earned before the
accident. Some time later his wages were reduced owing to
a general fall in wages, and upon his claim for compensation,
it was held that the change in his wages was not attributable
to any change in his capacity to earn wages, and therefore
he was not entitled to compensation. Merry & Cuninghame
v. Black (1909), 46 Scotch L. R. 812; 2 B. W. C. C. 372.
11. Workman not entitled to compensation while in prison.
A workman receiving compensation who is sentenced to
prison is not entitled to such compensation while in prison.
Clayton and Shuttleworth v. Dobbs (1908), 2 B. W. C. C. 488.
12. Dismissal for misconduct of workman suffering from
partial permanent disability.
By an, accident a workman lost the use of his left eye.
His employers, under a registered agreement, made him a
weekly payment during incapacity. He resumed work at
his former rate of wages, but was subsequently dismissed
for alleged misconduct. Gn application by the employers
to review the agreement, the County Court judge reduced
the weekly payments to one penny, on the ground that the
DISABILITY BENEFITS 649
Weekly payments required
workman had brought about his own dismissal. On appeal
to the Court of Appeal it was held, that although, when a
workman employed at an adequate rate of wages, vacates
his position by reason of his own misconduct, he is not
entitled at once to call upon his employers for compensation,
yet one act of misconduct does not necessarily deprive him
forever of the right to compensation. W. White and Sons v.
Harris (1910), 4 B. W. C. C. 39.
A workman who was partially incapacitated by an accident
which caused an injury of a permanent nature was employed
in another capacity where his wages were higher than they
had been before the accident. From this employment he
was dismissed by reason of his own misconduct. On pro-
ceedings for compensation under the Act it was held that the
workman's incapacity was due to his own misconduct and
he was not entitled to a substantial award. Upon the con-
sent of the employer an award was made of one penny a
week for the purpose of allowing the proceedings to stand
without being entirely terminated. Hill v. Ocean Coal Co.
(1909), 3 B. W. C. C. 29.
13. Vocational diseases; contracted partly in the employ-
ment of two employers; apportioning compensation.
Where an industrial disease is contracted by a gradual
process, and during the twelve months previous to the in-
capacity the workman has been employed by two employers
in the absence of any special risk or degree of the poison in
either employment, the period of employment by each em-
ployer is the basis for calculating the proportion of the com-
pensation which should be paid by each. Lees v. Waring &
Gillow (Ferguson, third party), (1909), 2 B. W. C. C. 474.
14. Weekly payments required.
Compensation payments must be made weekly and may
not be made biweekly instead of in weekly instalments.
Ruling of Mich. Indus. Ace. Bd., October, 1912.
650 bradbury's workmen's compensation law
Payment of less than statutory amount as basis of release
15. Place of payment of compensation.
The place of payment of compensation is at the place
where the person entitled to receive payments resides. The
payee must endorse the voucher and sign the receipts
attached before the same can be cashed, and the genuine-
ness of such signatures is in most cases guaranteed by local
banks and business men through whose hands the vouchers
pass. Ruling of Mich. Indus. Ace. Bd., January, 1913.
A few of the statutes have specific provisions on this sub-
ject.
16. State institution; compensation payments part of cur-
rent expenses.
Where an employe of a State institution is injured in the
course of his duties his claim for damages must be paid out of
the funds of the Institution by which he is employed, and
such disbursement should be included as part of the current
expenses of the maintenance of such Institution. Opinion
of Attorney General of Michigan, on the application of the
Board of State Auditors, in re Michigan School for the Blind,
January 22, 1913.
17. Payment of less than statutory amount as basis of
release.
The ends of two fingers of a workman had been removed
and compensation was paid for a certain length of time, after
which the insurance company took a general release from
the workman who was a foreigner and did not understand
the English language although he could write his name and
did sign the general release. It appeared that the workman
was entitled to greater benefits under the provisions for
specific amounts in case of permanent partial disability.
It was held that the release had been secured without the
workman understanding that it was a release, and therefore
was not binding on him, but the court did not determine the
question of whether or not the release would have been good
DISABILITY BENEFITS 651
Incapacity to do regular work
had there been no fraud or misunderstanding. Pabisiz v.
Newark Spring Mattress Co., Essex Common Pleas, Feb.
1913; 36 N. J. Law. J. 114.
18. Divorced man paying alimony is " single " for com-
pensation purposes.
A divorced man paying alimony is construed to be a single
man and entitled to benefits as such. First Annual Report
Washington Industrial Commission, page 487, based on
Ruling of Atty. Gen'l of Washington, May 16, 1912.
ARTICLE B— PERMANENT TOTAL DISABILITY
1. Total incapacity; refusal of former employers to sup-
ply work to injured employe.
A workman with an injury to his knee recovered suffi-
ciently to be able to resume work, but his knee was liable
to break down at any time, and did in fact break down.
After a considerable time, during which he did not receive
compensation, he took proceedings, and the County Court
judge, on the assumption that his former employers were
going to find him work, awarded one penny per week. The
former employers refused to find him work and he was un-
able to obtain any from anyone else owing to his having
had an accident, and to the chance of his breaking down.
It was held that he was entitled to full compensation.
Thomas v. Fairbairn, Lawson & Co. (1911), 4 B. W. C. C.
195.
2. Incapacity to do regular work.
The claim of a seaman for compensation was referred to a
oedical referee for report. He certified that the man was
fit for light work if he wore a truss, but not fit for work as a
seaman, or for lifting. On this certificate the County Court
judge awarded compensation on the basis of total incapacity,
and this decision was affirmed by the Court of Appeal.
Hendricksen v. Owners of Steamship " Swanhilda" (1911),
4 B. W. C. C. 233.
652 bradbuby's workmen's compensation law
Injuries amounting to permanent total disability
An engine driver in a colliery met with an accident which
caused the first finger of his left hand to become permanently
stiff. He was paid compensation during the total inca-
pacity. Payment was stopped and he brought proceedings
resulting in an award* of 7s. 6d. a week on the ground that
although his foijiier employment was too dangerous for
him to resume, he could do some light work. He tried to
obtain light work but failed, and applied to have his com-
pensation increased. Compensation was awarded at the
rate of £1 a week. His employers then offered him different
work but at his old wages. The workman refused this un-
less the employers would guarantee him his old wages for
whatever work they might put him to. They refused to do
this and applied to have the payments terminated on the
ground that the man could do his full old work. It was held
that the man could do his old work but that it would be
dangerous for him to do it and that it was not suitable em-
ployment. The court refused to reduce the compensation.
Dinnington Main Coal Co. v. Bruins (1912), 5 B. W. C. C.
367.
A workman lost two fingers of the right hand while un-
loading a vessel and claimed compensation for permanent
disability. The evidence showed that no permanent dis-
ability as a common laborer could result from the injury
and the employer was directed to pay the medical expenses
and $7.50 a week for 18 weeks, making $135 in all. Carl
Wilken v. Superior Stevedore Co., Wis. Indus. Com.
3. Injuries amounting to permanent total disability.
The applicant was a domestic in an insane asylum. While
operating an electric power-driven clothes wringer, her
hand was caught in the machinery and the arm was broken
between the elbow and shoulder, the muscles lacerated and
the nerves severed. The arm was left in a stiff condition
so that it would not flex more than twenty per cent. She
had wrist drop because the nerves controlling the extensor
DISABILITY BENEFITS 653
Waiting period not deducted from specific indemnities
muscles were severed. At the time of the injury she was
earning $18 a month and board, which was less than $375,
the minimum considered under the law. The employer had
paid $104 as compensation up to the time of the hearing.
An award was made that the sum of $1396 be paid in weekly
instalments of $4.69. Julia McGill v. Dunn County, Wis.
Indus. Com., Oct. 4, 1912.
The applicant received injuries which resulted in the
amputation of his left leg above the knee and the little finger
of his left hand, while the second and third fingers of the
left hand were left stiffened. He had been in the employ
of the respondent for twelve months and during that time
had earned $468. The award, on stipulation was that $400
be paid within ten days, for the purpose of permitting the
workman to purchase an artificial leg and that the sum of
$5.85 per week be paid until the sum of $1787.73 was paid
in all. Nic Oklobezcka v. Northwestern Iron Co., Wis. Indus.
Com., Dec. 19, 1912.
ARTICLE C— PERMANENT PARTIAL DISABILITY
1. Minimum amount payable in all cases of specific in-
demnity.
The minimum amount payable under the New Jersey
Act is $5 a week in all cases. Therefore, where a workman
lost one phalange of a finger and the Act provided that the
amount payable for such a loss should be one-half of the
amount payable for a finger, the minimum compensation
should be $5 a week. Banistar v. Kriger, 36 N. J. Law J.,
307; 00 N. J. Law, 000; 85 Atl. Rep. 1027.
2. Under schedule for specific indemnities two weeks
waiting period should not be deducted.
Under the schedule allowing specific indemnities for cer-
tain losses, the first two weeks for which no compensation is
allowed except for medical attention should not be deducted
from the total number of specific weeks for which compensa-
654 bradbury's workmen's compensation law
Consecutive and not concurrent payment
tion is allowed. Banistar v. Kriger, 36 N. J. Law J., 307;
00 N. J. Law 000; 85 Atl. Rep. 1027.
3. Consecutive and not concurrent payment for tem-
porary disability and specific indemnity.
Where a teamster, by reason of the sudden starting of a
team, suffered a Bott's fracture of the ankle and it appeared
that there would be permanent partial disability, it was held
that he was entitled to compensation for the temporary
disability for the period of 76 weeks and further compensa-
tion for 25 weeks by reason of partial permanent disability.
Loughman v. Home Brewing Co., Essex Common Pleas,
, 1913; 36 N. J. Law J. 113.
An employe had his fingers smashed and some of them
were amputated. The injuries produced a temporary dis-
ability, partly due to an infection preventing his going to
work, and it was held under the New Jersey Act, that com-
pensation was properly allowed both under clause (a) con-
cerning temporary disability and clause (c) providing for
specific amounts in case of permanent partial disability,
even though damages would exceed the maximum recover-
able under clause (6) of paragraph 11 of § 2 of the Act.
Nitram Co. v. Creagh, 00 N. J. Law, 000; 80 Atl. Rep. 435.
(Creagh v. Nitram Co., Essex Common Pleas, Sept. 27, 1912,
35 N, J. Law J. 328.)
Where a workman receives a specific injury, such as the
loss of a foot, entitling him to compensation for 125 weeks
and also other injuries, he is entitled to compensation during
the time of total disability, and when the total disability
ceases to compensation for 125 weeks as a specific indemnity
for'the loss of a foot. Limron v. Peremarquette E. Co., Mich.
Indus. Ace. Bd., July, 1913.
Where an employ^ lost a leg by reason of an accidental
injury it was'held that he was entitled to compensation
for the time he was actually disabled and also to the
specific indemnity for 175 weeks provided for in the statute.
DISABILITY BENEFITS 655
Amputation of finger when wound healing
Bonalfii v. Hamburg American Line, 36 N. J. Law J.,
302.
4. Loss of several fingers ; consecutive payments for each,
or concurrent payments for all.
Where a workman received injuries to several fingers
in the same accident, the total award must be the added
amounts for an injury to each finger, as fixed by the statute,
not to exceed the amount provided for the loss of a hand,
and the weekly payments in such a case do not run con-
currently. George W. Helme Co. v. Middlesex Common
Pleas, 00 N. J. Law, 000; 87 Atl. Rep. 72.
"The Industrial Accident Board has considered the ques-
tion as to the manner of payment in case where three fingers
are lost by an accident to an employe. The conclusion
reached by the Board is that the rate of payment in such a
case shall be one-half of the weekly wages of such employe,
and that the number of weeks for which such weekly pay-
ments shall continue is to be determined by the number of
fingers and the schedule of compensation for the particular
fingers lost. There is no provision of law by which more than
ten dollars per week could be paid. This fact would make
unworkable the theory that weekly payments for each
finger should be made each week, continuing until the claims
for the less valuable fingers drop-out of the account and
until the most valuable is finally paid for. The same rule
would apply in cases of toes or other digits or members."
Ruling of Mich. Indus. Ace. Bd., October, 1912.
5. Amputation of finger when wound healing.
A workman received compensation for temporary total
disability for a number of weeks when he had the finger
which was injured amputated. The employer denied lia-
bility on the ground that the finger was healing and the
amputation was not necessary. The board granted the work-
man $10 a week for 29 weeks. Beech v. Packard Motor Co.,
656 BRADBURY'S WORKMEN'S COMPENSATION ]^AW
Injuries to and losses of fingers not otherwise classified
Mich. Indus. Ace. Bd., Oct. 15, 1913; The Indicator, Oct. 20,
1913, at page 418.
6. Loss of use of fingers without amputation.
An employe sustained injuries resulting in total disability
for ten weeks and as a result of the injury two fingers became
permanently stiffened. It was held that such injury had
caused a loss to the workman of one-half the use of such
fingers and was equivalent to the loss of such fingers whether
amputated or not. It was further held that the real test
was not the question of whether or not the surgeon cut off
the finger, but whether or not the injured person was de-
prived permanently of the use of the finger, even though it
was not amputated. Compensation was therefore awarded
at the same rate allowed for the loss of one-half of each of
the fingers. Rider v. C. H. Little Co., Mich. Indus. Ace.
Bd., April, 1913.
A workman while operating a saw injured the second
finger of his right hand by reason of which he lost the per-
manent use of the first phalange, although amputation was
not necessary. It was held that the loss of the use of the
phalange amounted to loss of that portion of the finger as
if it had been amputated, and compensation was awarded
amounting to fifty per cent of the workman's average weekly
wages for a period of fifteen weeks. Saleska v. Rikard Lum-
ber Co., Dec. of Mich. Arbitration Committee, Jan. 6, 1913.
7. Injuries to and losses of fingers not otherwise classified.
A workman's little finger was caught by a chain while
fastening the chain around a load at the plant of his em-
ployer. The finger was amputated at the first joint. Com-
pensation was awarded at the rate of fifty per cent of the
average weekly wages for the period of 17J^ weeks. Radic
v. American Car and Foundry Co., Dec. of Mich. Arbitra-
tion Committee, December 18, 1912.
The applicant for compensation was operating a punch
DISABILITY BENEFITS 657
Injuries to and losses of fingers not otherwise classified
press. The employer alleged that the workman neglected
to remove his hands from the work he had placed in the
press before putting his foot upon the trip. The end of the
index finger on the right hand and the end of the thumb on
the same hand were crushed at about the middle of the first
joint. Compensation was awarded at fifty per cent of the
workman's average weekly wages for a period of 13 weeks.
Webber v. Kales Haskel Co., Dec. of Mich. Arbitration Com-
mittee, Dec. 19, 1912.
The applicant sustained injury on a punch press which
necessitated amputation of the right index finger between
the first and second joints. At the time of the injury
his wages amounted to $12 a week and he was totally
disabled for five weeks. The testimony showed that he
might have returned to work at the end of that time without
loss of earning power. The employer had furnished medical
attendance and had paid $62.40 as compensation. The
application for further compensation, however, was dis-
missed. John O'Hare v. Badger Brass Mfg. Co., Wis. Indus.
Com., Jan. 23, 1913.
The applicant who was employed as a general helper
held a team of horses during the owner's absence. One of
the horses kicked his left hand, necessitating the amputation
of the little finger. Prior to the date of hearing the employer
had paid $105 as compensation and $130 as medical expenses.
It was held that the employer should be compelled to pay
$88.40 as additional compensation to the date of the hear-
ing. Allen Harris v. City of Milwaukee, Wis. Indus. Com.,
Sept. 14, 1912.
A workman lost three fingers of the right hand while
employed as a fireman and oiler at annual wages of $612.
He was totally disabled for nine weeks when he returned to
work at the same wages. The employer had paid compensa-
tion and medical expenses. The workman claimed per-
manent partial disability. The commission dismissed the
application without further compensation. Harry Lewan-
42
658 bbadbury's wobkmen's compensation law
Loss of toes
dowski v. Illinois Steel Co., Wis. Indus. Com., Oct. 2, 1912.
An applicant lost the tips of the thumb, index and second
fingers, which were removed below the first joints, as a result
of an explosion of a dynamite cap from which he was en-
deavoring to pick the contents for the purpose of forming
a nipple for his mine lamp. The employer denied liability
on the ground that nipples were supplied to the men at a
nominal cost, that the applicant had no right to have a
dynamite cap in his possession, and that the act constituted
wilful misconduct. The board, however, held in favor of the
workman and granted compensation for 92J^ weeks. Mac-
ieza v. Mass Consolidated Mining Co., Mich. Indus. Ace. Bd.,
Oct. 15, 1913; The Indicator, Oct. 20, 1913, page 417.
A workman applying for work was asked if he understood
the use of saws, to which he replied that he did, and he was
put to work without any agreement as to the amount of
wages which he was to receive. On the same day that he
started to work he was injured by one of the saws. It was
held that the workman was entitled to compensation of at
least the minimum amount specified in the statute of $5 a
week, for the number of weeks specified in the act for the loss
of a thumb and the partial loss of the use of the first finger
and the loss of the use of the fourth finger. Mueller v. Oelkers
Mfg. Co., (Essex Common Pleas, February, 1913) ; 36 N. J.
Law J. 117.
8. Loss of toes.
A workman received injuries to his right foot when a man-
hole cover slipped from his hands. As a result of the injury
it was necessary to amputate the great toe at the proximal
joint and the second toe at the distal joint. The Commission
found that the workman would be totally disabled for twenty-
four weeks. At the time of the accident he was earning
$2 a day. The award was that the employer pay $7.50 a
week for eight weeks in addition to the medical expense
which the employer had paid for sixteen weeks. Reinhold
DISABILITY BENEFITS 659
Loss of one eye
Klalt v. Milwaukee Electric By. & Light Co., Wis. Indus.
Com., April 22, 1913.
9. Loss of one eye.
The employer of a workman who had lost an eye, and
who had been in receipt, first of full, and subsequently of
partial compensation, having proposed to terminate the
weekly payments, a mutual submission was made to a
medical referee under Schedule I (15). The medical referee
having reported that the workman was "as fit as any other
one-eyed man" to resume work underground, his employers
applied to end the compensation as from the date of the
medical referee's report. It was held that the miner should
be permitted to present proof showing that his wage-earning
capacity was not as great in his present condition as it would
have been if he had the use of both eyes. Arnott v. Fife Coal
Co. (1911), 48 Scotch L. R. 828; 4 B. W. C. C. 361.
A miner lost one eye by an accident. The medical referee
to whom the matter had been referred, reported that he was
fit for work. The employer thereupon made application to
have the compensation ended or diminished. At the hearing
the workman maintained that since the date of the referee's
examination he had lost the use of his other eye owing to the
accident, and that he was unfit for his work. The arbitrator
found that the miner was totally incapacitated, but that it
was not proved that his blindness in the second eye was due
to the effects of the accident, and held that the onus of prov-
ing that the supervening incapacity was due to the accident
lay upon the miner. The arbitrator diminished the pay-
ments. It was held that the onus was upon the miner and
had not been discharged. M'Ghee v. Summerlee Iron Co.
(1911), 48 Scotch L. R. 807; 4 B. W. C. C. 424.
Where a miner in the course of his employment received
an injury which made his right eye almost useless and his
left eye was already of little use by reason of a disease com-
mon to miners. The court below held that the miner had
660 bradbury's workmen's compensation law
Loss of one eye
recovered, so far as he ever would without an operation, and
that his present incapacity was not due to the accident.
The appellate court reversed the judgment and remitted
the case for the assessment of compensation. Lee v. William
Baird& Co. (1908), 45 Scotch L. R. 717; 1 B. W. C. C. 34.
A workman lost the sight of one eye. After the wound
healed work of a^somewhat different nature was offered to
him by his employers, which work he refused, on the ground
that it involved risk to the remaining eye. There was evi-
dence that the work involved no more risk to a one-eyed man
than to a two-eyed man. It was held that the work offered
was suitable and compensation was refused. Elliott v.
Curry & Dodd (1912) 46 Ir. L. T. 72; 5 B. W. C. C. 584.
A boiler maker lost his eye by accident, and upon the
healing of the wound he returned to work with his old em-
ployers, at the same rate of wages. Subsequently he was
discharged, on the ground of misconduct, it being alleged
that he was asleep at work. The man tried to get similar
employment elsewhere but failed. At the time of his return
to work an award of nominal compensation was made.
Upon an application to have the award increased, it was
found that the man was, by the loss of his eye, unable to
obtain work as a boiler maker and was put in the position of
a casual laborer, and that therefore he was entitled to com-
pensation. Brown v. /. /. Thornycroft & Co. (1912), 5 B. W.
C. C. 386.
As a result of an accident years ago a workman was blind
in one eye, but to all appearances had two good eyes.
His employer did not know of his infirmity. He was fully
capable of work. As a result of a new accident the blind
eye had to be removed and he could no longer conceal his
infirmity. On recovery from the effects of the operation he
was unable, owing to his now patent infirmity, to obtain
work either from the old employers or from anyone else.
It was held by the House of Lords that "incapacity for work"
includes inability to get work; that although after the second
DISABILITY BENEFITS 661
Loss of one eye
accident the workman was physically as well able to do his
old work as before, the disfigurement caused by the accident
preventing him from obtaining such work, was incapacity
for work within the meaning of the Act. Ball v. William
Hunt & Sons (1912), 5 B. W. C. C. 459.
The term "partial disability" as used in § 8, subd. 2 (b)
of the Roseberry (Cal.) Act was held not to be restricted to
physical incapacity merely, but included such injuries as
circumscribed the area of employment and lessened his wage
earning capacity. Christ v. Pacific Telephone and Telegraph
Co., Cal. Indus. Ace. Bd., April 25, 1912. In the last-
mentioned case a laborer lost an eye and it was held that this
circumscribed his area of employment and lessened his wage
earning capacity so as to constitute a permanent disability,
within the meaning of the Act, and compensation was
awarded for the period of total disability and the further
sum of 65% of the man's probable weekly loss of wages,
computed at $2 a week, for the full period of fifteen years
limited by the Act. Christ v. Pacific Telephone and Telegraph
Co., Cal. Indus. Ace. Bd., April 25, 1912.
It is held that an insurer does not have the right to post-
pone the payment of the additional compensation provided
for in Part III, § 11 of the Massachusetts Act pending the
result of an operation for the restoration of vision to an in-
jured eye, and compensation was ordered paid in accordance
with this section for a period of fifty weeks, dating from the
day of the injury. Bronzetti v. Employers Liability Assur-
ance Corporation, Mass. Indus. Ace. Bd.
A workman while engaged in shoveling sand in the defend-
ant's plant, from an alleyway, in order to avoid an approach-
ing team, stepped into a doorway, the door of which swung
into the alleyway. The hub of the wagon caught the door
and closed it, catching the workman's head between the
door and the jamb and inflicting injuries which resulted in
partial paralysis and loss of one eye. Compensation was
awarded at the rate of five dollars a week for the period of
662 bradbury's workmen's compensation law
Loss of one eye
one hundred weeks. Megrigian v. Michigan Malleable Iron
Co., Dec. of Mich. Arbitration Committee, Jan. 17, 1913.
A workman sustained injury which resulted in the loss of
his left eye. His average annual earnings were $600. After
an exhaustive inquiry the commission decided that the loss
of one eye impaired earning capacity to the extent of 15%.
An award was therefore made of $150, as compensation for
total disability for the period of twenty weeks, and the sum
of $30.51 for a period of partial disability and the sum of
$1.13 a week thereafter until the expiration of fifteen years
from the date of the award. Charles Kuschmann v. Fuller-
Warren Co., Wis. Indus. Com., Feb. 27, 1913. Since the
above decision was rendered the Wisconsin Act has been
amended allowing specific indemnities for injuries of a per-
manent character.
The applicant lost the left eye as a result of an injury
caused by a steel chip which lodged in it while he was em-
ployed on a drill press. At the time of the accident he was
earning $750 a year. The Commission found that the work-
man had suffered a loss of earning power to the extent of
15% and awarded compensation of $58.42 up to the time
of the hearing, in addition to $100.75 which had already been
paid besides medical attention, and that the employer
should thereafter pay the sum of $1.41 a week until the
expiration of fifteen years. E. Koenig v. International
Harvester Co., Wis. Indus. Com., March 6, 1913.
Applicant lost his left eye as the result of an industrial
accident while in the employ of the defendant. All nec-
essary medical and surgical treatment was furnished by the
employer. A glass eye was fitted in and after two weeks he
was able to perform physical labor, although it was thought
it would take from six months to a year for the remaining
eye to adjust itself to the work of both eyes. Applicant's
claim for compensation for a permanent partial disability
was resisted by the defendant on the ground that he was
able to do the same work that he did before the accident,
DISABILITY BENEFITS 663
Loss of one eye
and that therefore it could not be said that he had suffered
a permanent disability within the meaning of the Act. Held
that it was a permanent disability within the terms of the
law, and that the employer's willingness to give employment
at the same wage as earned before the accident does not
change the general rule. The sum of $20.80 was awarded
for the period of total disability, and the sum of $1.56 per
week was awarded for the fifteen-year period fixed by the
Act. Subsequently the applicant took an appeal to the
Superior Court of Kern County, California, believing that
he was entitled to a larger award than that granted by the
Industrial Accident Board. The review in the higher Court
is still pending. Legee v. Lacy Manufacturing Co., Cal.
Indus. Ace. Bd., July 28, 1913.
Applicant was injured by the explosion of dynamite caps
while in the employ of defendant. Particles of metal were
driven into his flesh, and the sight of his right eye destroyed.
Medical and surgical attention was furnished by the defend-
ant, and full compensation paid for eleven months after the
accident. Held that defendant should have notified the
applicant of the proposed discontinuance of the monthly
payments, in justice to him, and that his claim for another
month's full payment was justified by his physical condition.
In addition applicant was allowed six months' temporary
partial disability, amounting to $3.75 a week, in order to
give him a reasonable time during which to train his remain-
ing eye to do the work of both eyes, and also because of the
blood-shot appearance of the sightless eye, and the effect it
would have in obtaining employment, permanent disability
would amount to 15% of the daily wage which he was re-
ceiving at the time of his injury, and applicant was awarded
the sum of $1.83 for 702 consecutive weeks. The total
amount of benefit, outside of the medical and surgical atten-
tion, will amount to $2,015.91. The decision declared that
in earlier cases it was believed the estimates were lower than
justice warranted and that it was not considered that pre-
664 bradbury's workmen's compensation law
Complete blindness caused to eye of which sight partially destroyed
cedents should be unchangeable where equity demanded an
increase. Linnell v. North Star Mines Co., Cal. Indus. Ace.
Bd., Dec. 11, 1913.
Applicant injured his right eye. He had received com-
pensation and hospital and medical attention had been fur-
nished. His employer required a release from all further
liability as a condition precedent to paying $28.20 to the ap-
plicant. Held that this release was a receipt and the appli-
cant was awarded $28.14 additional compensation. Cianti
v. ML Whitney Power Electric Co., Cal. Indus. Ace. Bd.,
Feb. 7, 1913.
10. One eye so injured that both cannot be used.
By reason of an injury to an eye causing the removal of the
lens the vision became so blurred and the image so out of
alignment with the uninjured eye, that the employe's vision
was no better when wearing glasses in the injured eye, than
if he were not wearing them. As to the injured eye alone
a correcting lens gave him four-tenths of normal vision, but
without the correcting lens the vision was only three two-
hundredths of normal. It appeared that the use of the two
eyes together was impossible even with the correcting lens
by reason of the variation in alignment and the additional
vision caused by the correcting lens was only available
should the employe1 lose the sound eye. It was held that the
employe had only three two-hundredths of normal vision
and was entitled to additional compensation provided in •
Par£ II, § 11 (b) of the Act. Latak v. Employers Liability
Assurance Corporation, Mass. Indus. Ace. Bd.
11. Complete blindness caused to eye of which sight
partially destroyed.
A workman had received an injury to his eye ten years
before, so that sight was partially destroyed, but he had some
use of his eye. While in this condition he was struck in the
eye by a horse's tail and inflammation set in. The eye was
DISABILITY BENEFITS 665
Loss of hand when other hand already injured
removed in the hospital. Compensation was awarded on the
ground that incapacity for work was caused by the second
injury. Martin v. Barnett (1910), 3 B. W. C. C. 146.
12. Removal of eye already blind.
As a result of an accident years ago a workman was blind
in one eye, but the infirmity was unknown to his employer
and he was fully able to work. As a result of a new accident
the blind eye had to be removed and the workman could
no longer conceal his infirmity. On recovering from the
effects of the operation he was entirely unable, owing to the
deformity which was now obvious, to obtain work either
from his old employer or from anyone else. He claimed that
the accident had thus, in effect, incapacitated him for work.
The County Court judge held that any incapacity was due
to the accident which had blinded the eye years ago and de-
cided that the workman was not entitled to compensation.
This decision was affirmed by the Court of Appeal. Ball v.
William Hunt & Sons (1911), 104 L. T. 327; 4 B. W. C. C.
225. This case was reversed in the House of Lords, but is not
yet reported. It was remanded to the County Court to
determine the disability.
13. Loss of hand when other hand already injured.
Applicant had his right hand torn off above the wrist
while in the employ of the defendant. Several months were
spent in unprofitable negotiations looking toward a settle-
ment. The only questions at issue were the average annual
earnings and the probable loss of earning power. Applicant
had previously lost the middle fingers of the other hand and
suffered the permanent: stiffening of the joints of the remain-
ing fingers. Held that it was well settled law that whoever
takes a crippled employe into his employ takes him subject
to his crippled condition. The compensation awarded was
$272.76 for the temporary total and permanent partial
disability during recovery from the injury, and that this
666 beadbury's workmen's compensation law
Injuries to legs
was to be followed by the payment of $9.50 weekly for 238.3
consecutive weeks, and that the injured man was entitled
to a sum equal to three times his average annual earnings,
amounting to $2,536.50. In addition there was allowed
$100 for medical and surgical treatment. Krznarich v. Crown
Columbia Paper Co. and The Employers' Liability Assurance
Corporation, Ltft., Cal. Indus. Ace. Bd., Nov. 7, 1913.
14. Injuries to legs.
Applicant broke both bones of his left leg. The fracture
was a bad one, though not compound, and the bones were
reset by manipulation, with the result that, while the ends
of the fibula united properly, those of the tibia lapped by.
Compensation was paid in full for the medical and surgical
benefit and compensation up to the time when the defendant
offered applicant a position at a lower wage and 65% of the
difference between the lower wage and the amount he was
receiving at the, time of the injury. This proposition was
refused by the applicant. Held that applicant was entitled
to compensation as of the time of the injury, and he was
awarded a disability indemnity of 20% impairment of the
physical machine, based on 10% for impairment and 10%
for inability to compete with well men. The total amount
awarded was $50.60 in addition to $474.26 already paid,
together with the sum of $2.28 per week for 734 consecutive
weeks. Gildea v. Natomas Consolidated of California, CaL
Indus. Ace. Bd., Nov. 21, 1913.
Applicant had been paid the sum of $45.00 as compensa-
tion, together with the expense of hospital and medical
attendance. He claimed additional compensation for injury
to the ligaments and muscles of legs and bruised ankles,
sustained during the employment. Held, after examination
by medical referees, that applicant was entitled to additional
compensation in ths sum of $19.29. Butler v. Pacific Wake-
field Co., et al, Cal. Indus. Ace. Bd., Sept. 6, 1913.
Applicant fell and fractured his left leg. A dispute arose
DISABILITY BENEFITS 667
Waiting for opportunity to have operation performed at hospital
over the amount and duration of compensation payable.
Held that applicant was entitled to $212.40, less such sum as
defendant had paid, said amount to be paid in weekly in-
stallments of $7.08, and in addition pay $4.26 a week for
sixteen consecutive weeks, until April 30, 1914, at which
date, unless ordered by the Industrial Accident Board, all
disability indemnities on account of said injury shall cease.
Pietrovosky v. Western Meat Co., Cal. Indus. Ace. Bd.,
Dec. 22, 1913.
Applicant lost left foot, between the knee and the ankle.
He was engaged in a seasonable occupation, i. e., for a period
of time less than a year. The employer had paid the expense
of medical attendance and the hospital expenses, together
with compensation in the sum of $45.50. Held that appli-
cant was entitled to additional compensation of $146.25,
accrued to the date of the award and the additional sum of
$2700.00, payable in weekly installments of $3.75 each, until
the further order of the Board. The controversy was friendly
and was started for the purpose of obtaining a ruling as to
the exact amount due applicant. Brousset v. Fresno Flume
and Lumber Co., Cal. Indus. Ace. Bd., Oct. 9, 1913.
ARTICLE D— TEMPORARY TOTAL DISABILITY
1. Unsuccessful efforts to obtain employment.
If a man has unsuccessfully made reasonable bona fide
efforts to obtain employment at work which he is physically
capable of performing he is not able to earn anything. Clark
v. Gas Light & Coke Co. (1905), 7 W. C. C. 119; Ball v. Wil-
liam Hunt & Sons (1912), 5 B. W. C. C. 459.
2. Waiting for opportunity to have operation performed
at hospital.
Where a miner ruptured himself, and on the advice of a
doctor did no work while he was waiting for an opportunity
to have an operation performed in the hospital, it was held
bbadbury's workmen's compensation law
Miscellaneous specific cases in which compensation was awarded
that he was entitled to compensation during the time he was
waiting for a bed, as his conduct in this respect was reason-
able, and was based upon the advice of his physician. Evans
v. Cory Bros. & Co. (1912), 5 B. W. C. C. 272.
3. Heart trouble developing after injury.
A common laborer received a small fracture of the right
ninth rib when caught between a wall and a wagon which he
and several others were pushing. He continued working
until the end of the day, which was about four hours. After
disability of six weeks he was discharged as cured of the
injury, the treatment having been given by the workmen's
physician. Compensation in the amount of $55.62 was also
paid. During the workman's disability he developed heart
trouble (myro carditis) and he claimed that this was caused
by the accident. The Commission found that heart trouble
was not the proximate result of the accident and refused
further compensation. Simon Derbeck v. Pfister & Vogel
Leather Co., Wis. Indus. Com., May 18, 1912.
4. Workmen earning same wages as before the injury.
An applicant had sustained a fracture of the right leg, the
left wrist and the small bone in the right shoulder. He re-
ceived compensation at the rate of $10 per week until he
returned to work. When the compensation was discontinued
he applied for specific indemnity, on the ground that he was
permanently crippled. The application was denied, on the
ground that the workman was now receiving the same wages
as he did before the accident. Payne v. Riverside Scrap Iron
and Metal Co., Mich. Indus. Ace. Bd., October 15, 1913;
The Indicator, October 20, 1913, at page 417.
6. Miscellaneous specific cases in which compensation
was awarded.
A workman sustained a hernia while lifting a heavy piece
of iron off a lathe. Compensation was awarded of $7.46 per
DISABILITY BENEFITS 669
Miscellaneous specific cases in which compensation was awarded
week for the period of total disability not to exceed five
hundred weeks. Capitol Brass Works v. Holle, Dec. of Mich.
Arbitration Committee, February 1, 1913.
While moving an old sewer pipe a workman cut the ten-
dons of his left arm just above the wrist. He resumed work
at the same wages after the actual disability ceased. The
employer was directed to pay $91.91, being 65% of the wages
for 14 weeks, and also medical expenses amounting to $25.75.
Anton Bier v. City of Janesville, Wis. Indus. Com., Feb. 15,
1912.
A workman engaged in a gravel pit suffered disability
through a slide of gravel. Compensation was awarded for
seventeen weeks, amounting to $95.54, together with $193.58
as medical expenses. George Edminster v. Waupaca County,
Wis. Indus. Com., May 4, 1912.
Another workman was injured in the same accident and
it appeared that his earnings had been reduced by one-half
for four, weeks. Compensation was awarded to him in the
sum of $67.12, and the sum of $47. for medical expenses.
August Popke v. Waupaca County, Wis. Indus. Com., May 4,
1912.
A workman stepped on a hot bar of iron and received in-
juries which caused disability for twenty-seven weeks, when
he resumed work at his former wages. His weekly wages
before the accident were $13.67. The employer paid all
medical expenses and full compensation under the act for
the time of the disability. The workman claimed continued
disability and demanded further compensation. Two sur-
geons testified that he had entirely recovered. The Com-
mission awarded further compensation in the sum of $17.78,
as 65% of the weekly wages for two additional weeks.
Brzotek v. Illinois Steel Co., Wis. Indus. Com., July 22, 1912.
The applicant sustained injuries to his foot and was dis-
abled for twenty weeks and five days. His average weekly
wages amounted to $14.42. The charges for medical atten-
tion were paid and compensation for 13 weeks. The em-
670 bradbuky's workmen's compensation law
Ability to do light work after accident; exaggeration of injury
ployer was directed to pay additional compensation amount-
ing to $74.96. Superior Terminal Elevator Co. v. F. A. Ball,
Wis. Indus. Com., Feb. 24, 1913.
A workman fell down a stairway and sustained injuries
which resulted in an immediate attack of appendicitis. Dis-
interested physicians testified as to the possibility of such an
attack following an injury. The workman's average weekly
wages amounted to $13.81. He incurred expenses of $186.80
for medical and surgieal treatment and a hospital bill of
$36.80. The Commission directed that the employer pay
the medical expenses and compensation in the sum of $71.84
for the period of disability. Harry Harris v. Milwaukee
Dustless Brush Co., Wis. Indus. Com., March 12, 1913.
ARTICLE E— TEMPORARY PARTIAL DISABILITY
1. Ability to do light work after accident; exaggeration
of injury.
A workman was injured in a colliery and drew compensa-
tion for about four years. It was then alleged he was fit for
light work, but he said he could not do it on account of pain.
The arbitrator found, as a fact, that the workman was
exaggerating and that he could do light work. It was held
that there was evidence upon which the arbitrator could so
find. Price v. Burnyeat, Brown & Co. (1907), 2 B. W. C. C.
337.
Applicant injured his right leg while in the employ of
defendant. X-ray plates failed to show any injury to the
bone and that there was no abrasion of the skin, although
the flesh was considerably bruised. At no time was applicant
forced to take to his bed or to use a crutch or cane in loco-
motion. Three weeks after the injury he was offered light
work, but refused. While the law considers the accident as
of the time of disability, yet it was considered proper to take
into consideration the declination to work in determining
the amount of compensation due. Applicant pretended that
DISABILITY BENEFITS 671
Inability to obtain employemnt in district where workman lives
he was seriously injured and despite expert medical testi-
mony. Held that the case belongs to that class of malinger-
ing or simulation which causes very great suffering to those
who are skeptical in regards to the merits of compensation
as a system for dealing with industrial injuries. Further
held that such cases are to compensation what arson is to
fire insurance and fraud to life insurance. The award for
applicant for temporary injury was $24.43, but defendant
had paid $38.10, and consequently applicant received noth-
ing in addition to the amount already paid. Goncalves v.
Standard Oil Co., Cal. Indus. Ace. Bd., May 29, 1913.
Applicant was employed as a common laborer on the docks
at Superior. While he was storing bags of wool in the hold
of the boat, he was struck by one of the bags weighing 330
pounds. Through a misunderstanding he was not examined
by a physician until three weeks after the accident when it
was found that he had a fever and some affection of the left
lung. After this examination he tried to return to his former
work but was unable to stand it and later he secured employ-
ment picking cranberries at $2.25 a day. He continued this
work to the time of the hearing. A medical examination
initiated by the commission showed the workman to be
suffering from pleurisy and that he could not continue the
work of a stevedore. At the time of the accident the appli-
cant was earning $14.42 a week. He was totally disabled for
five weeks and it appeared from the evidence that partial
disability would continue for twenty weeks. His weekly
loss of earning capacity amounted to $1.44. The award was
the sum of $65.65. John Maki v. Superior Stevedore Co.,
Wis. Indus. Com., Dec. 10, 1912.
2. Inability to obtain employment in district where work-
man lives.
Employers of a workman who was partially incapacitated
by accident, gave him light work to do, and under an agree-
ment received certain compensation. Eighteen months later
672 bradbury's workmen's compensation law
Workman receiving same wages after as (or higher than)before injury
the workman was dismissed with others, owing to a reduction
of force. The man was unable, on account of his partial
incapacity to find work in the district and applied for a
review of the award of compensation. It was held by the
House of Lords that as "incapacity for work" includes in-
ability to obtain employment in the district where the work-
man lives, and Itfie occurrence of this inability to obtain work
was such a change of circumstances that it entitled the work-
man to a review. McDonald or Duris v. Wilson's & Clyde
Coal Co. (1912) 5 B. W. C. C. 478.
3. Wages and compensation after accident need not
equal wages before injury.
An injured workman who had previously earned 32s. 6d.
per week, earned 25s. per week after the accident. He
claimed 7s. Gd. per week, and the judge awarded him 3s. 9d.
He appealed. It was held that there was no misdirection
and the judge was not compelled to give the full difference
between the earnings before and after the accident. Hum-
phreys v. City of London Electric Lighting Co. (1911), 4
B. W. C. C.275.
4. Workman receiving same wages after as (or higher
than) before injury.
If a workman earns after the accident the same amount
of wages as he had previously earned, he is not at that time
entitled to receive compensation. In such a case the work-
man is entitled to an award fixing the employer with lia-
bility, but the assessment of compensation may be ad-
journed until such time as the workman suffers loss through
disability. Chandler v. Smith & Son (1899), 1 W. C. C. 19.
Where a workman is able to earn a greater sum after the
injury than he was before it happened, no compensation
should be awarded. In such a case it is proper to record a
declaration of liability should the injury result at a later
date in causing disability. Hains & Strange v. Corbet (1912),
5 B. W. C. C. 372.
DISABILITY BENEFITS 673
Wages and compensation in excess of wages before accident
The purpose of the workmen's compensation act being to
compensate an injured employe1 for the impairment of his
earning capacity and not to compensate him for pain,
suffering, disfigurement, etc., a workman who receives an
injury in the course of his employment resulting in tempor-
ary disability, and who enters other employment before he
has fully recovered, at a wage equal to or greater than he
was receiving at the time of his injury, is not entitled to com-
pensation after engaging in such latter employment, even
though he was not at that time able to resume the employ-
ment in which he was engaged at the time of his injury.
Re David Burns, Claim No. 3, Ohio Indus. Ace. Bd., May 22,
1912.
An unskilled workman who is able to do other work than
that which he was doing before he was injured, is not en-
titled to compensation merely because he is unable to do
such former work. Cammell, Laird & Co. v. Piatt (1908), 2
B. W. C. C. 368. '
The Wisconsin Act, granting to an employe partially
disabled a percentage of his weekly earnings, representing
the proportionate impairment of earning capacity in the
employment in which he was engaged when injured, was held
to authorize an allowance of the statutory amount without
deduction of such sums as the employe might be able to
earn in other employments. Mellen Lumber Co. v. Indus.
Com. of Wis., 000 Wis. 000; 142 N. W. Rep. 187. The
statute was amended in 1913 so as to award compensation
only when the employ^ was disabled for work in any employ-
ment.
5. Wages and compensation in excess of wages before
accident.
Where an injured workman to whom compensation is
being paid secures other employment whereby his wages
and compensation exceed his wages before the injury the
compensation should be reduced so he shares the loss with
43
674 Bradbury's Workmen's compensation law
Disability made more serious by illness or other contributing cause
his employer. Anley's Executors v. Neale (1907), 9 W. C. C.
34.
6. Clumsiness due to injury as ground of incapacity.
A waitress had an injury to her finger, which, becoming
stiff, prevented her from working as efficiently as before.
She received compensation for some time, and then returned
to her old work at her old wages. She could not work as
well as she did before, and her employers complained of her
clumsiness. She left this work of her own accord, and, with-
out any attempt to find other work, claimed compensation.
The County Court judge found that she could not work as
well as before, and that she was therefore partially incapac-
itated, and he awarded her compensation. It was held on
appeal that there was evidence to support this finding.
Ward v. Miles (1911), 4 B. W. C. C. 182.
7. Disability by disease accelerated by accident; basis
of compensation.
Where it is proved that apart from accident a disease
would have caused incapacity for work on a given day in the
future, and that an accident has accelerated the progress of
the disease so as to cause present incapacity, the award
should limit the time during which compensation is to be
paid to the period during which incapacity is caused by the
acceleration of the progress of the disease. Ward v. London
and North Western Ry. Co. (1901), 3 W. C. C. 192.
8. Disability made more serious by illness or other con-
tributing cause.
Where the accidental injury causes disability the injured
employe1 is entitled to compensation even though the dis-
ability is made more serious by reason of illness or other
contributing cause, but the compensation awarded is to be
measured by the disability directly traceable to the accident
and when such disability ceases the compensation terminates,
DISABILITY BENEFITS 675
Miscellaneous injuries for which compensation awarded
although the injured person may be still disabled by the
illness or some other cause wholly unrelated to the accident.
Mack v. Pacific Telephone and Telegraph Co., Cal. Indus.
Ace. Bd.
9. Re-current attacks of industrial disease.
Where a workman had had two attacks of an industrial
disease but after recovery from the second one his employers
refused to continue the employment on account of a likeli-
hood of an occurrence of the disease, it was found that there
was no evidence that the man's tendency to the disease was
due to his previous attacks as opposed to his natural tend-
ency to this disease, and that therefore there was no evi-
dence that his incapacity resulted from having had the
attack of disease when at work, and compensation was
refused. Jones v. New Brynmally Colliery Co. (1912), 5
B. W. C. C. 375. In the last mentioned case the court
distinguished the case of Thomas v. Fairbairn, Lawson &
Co. (1911), 4 B. W. C. C. 195.
10. Miscellaneous injuries for which compensation
awarded.
A workman was injured on a punch press and lost the
index finger of his right hand at the distal joint. The com-
mission found that the applicant had been totally disabled
for four weeks and partially disabled thereafter for six weeks,
and that at the end of this period he was able to resume work
without decrease of wages. Compensation was awarded
in the sum of $30 for total disability and $22.50 for partial
disability. William Dvorak v. Stamping & Tool Co., Wis.
Indus. Com., March 5, 1913.
Compensation was granted where it appeared that the
workman had suffered "severe straining of lumbar muscles
and bruising of the third and fourth vertebrae." Gross v.
Marshall Butters Lumber Co., Mich. Indus. Ace. Bd., Oct. 15,
1913; The Indicator, Oct. 20, 1913, at page 417.
676 Bradbury's workmen's compensation law
Double compensation
The applicant, a metal polisher, received injuries to the
back of his right hand by coming in contact with an emery
wheel. A physician named by the Commission to make an
examination reported that the workman could resume work
22 weeks after the date of the accident. The employer had
paid compensation for a period of 7 weeks, when the work-
man resumed work in another department of the employer's
plant. At the time of the accident he was earning $3.80 a
day, while in the new employment he earned $3 a day. The
commission held that the employer should pay to the appli-
cant $3.12 a week until the period of partial disability ended,
the amount being based upon 65% of the loss of earnings.
Richard Stegman v. Harley-Davidson Motor Co., Wis. Indus.
Com., Apr. 22, 1913.
The applicant sustained injury while operating a punch
press, necessitating disability period of twenty-two weeks
and permanent partial disability thereafter. At the time of
the accident his average annual wages were $750. Compen-
sation was awarded by stipulation, amounting to $581.80
besides medical expenses. Re John Liggett v. Thomas B.
Jvjfery Co., Dec. Wis. Indus. Com., Jan. 23, 1913.
ARTICLE F— MISCELLANEOUS CASES
1. Double compensation.
Where an employe was injured by reason of serious and
wilful misconduct of a person exercising superintendence
in that the employe was required to operate a machine
which was known to be in a dangerous condition, it was held
that this was such wilful misconduct on the part of the em-
ployer as entitled the employe to double compensation
within the meaning of Part II, § 3, of the Massachusetts Act.
Allen v. Globe Indemnity Co., Mass. Indus. Ace. Bd.
An employe was injured by reason of a cave-in. The
evidence showed that the upper crust of the sand bank where
the employe* was working was cut at regular intervals, this
being the only practical way to prevent a cave-in. It
DISABILITY BENEFITS 677
Deducting insurance benefits to which employes contribute
appeared that it was customary to have men on hand whose
duty it was to perform this work and that only through an
error in human calculation was the overhanging crust
allowed to remain for a sufficient time to cause the injury.
It was held that the injury was not due to the serious and
wilful misconduct on the part of the employer within the
meaning of Part II, § 3 of the Massachusetts Act, and the
employe" was not entitled to double compensation. Devine
v. Contractors Mutual Liability Ins. Co., Mass. Indus. Ace.
Bd.
2. Deducting insurance benefits to which employes con-
tribute.
In reply to a question whether, if a mutual insurance
association was maintained in an establishment to which the
employes contributed a certain percentage, what benefits
would accrue to the employes under the Compensation Act,
the Board replied as follows: "It is the present opinion of the
Industrial Accident Board that the employes would be
entitled to the full benefit under the compensation law in
addition to all they may receive through a mutual company.
Part II, § 13. 'No savings or insurance of the injured em-
ploy^, nor any contribution made by him to any benefit
fund or protective association independent of this act shall
be taken into consideration in determining the compensation
to be paid hereinunder, nor shall benefits derived through
any other source than those paid by the employer as herein
provided be considered in fixing the compensation under this
act.'" Mich. Indus. Ace. Bd.
Many of the statutes contain specific provisions that no
such deductions shall be made.
678 Bradbury's workmen's compensation law
Arizona
ARTICLE G— SPECIFIC PROVISIONS OF VARIOUS STATUTES
ARIZONA
"§ 72. When an injury is received by a workman engaged
in any labor or service specified in the third l section of this
chapter, and for which the employer is made liable as specified
l. i9i2,2dSes.,in the seventh2 section hereof, then the measure
Art. u, § 8. anci amount of compensation to be made by the
employer to such workman or his personal representative for
such injuries, shall be as follows:
"§ 1. If the injury' by accident does not result in death
within six months from the date of the accident, but does
produce or result in total incapacity of the workman for work
at any gainful employment for more than two (2) weeks after
the accident then the compensation to be made to such work-
man by this employer shall be a semi-monthly payment com-
mencing from .the date of the accident, and continuing during
such total incapacity, of a sum equal to fifty (50) per centum
of the workman's average semi-monthly earnings when at
work on full time during the preceding year, if he shall have
been in the employment of such employer for such length of
time; but if not for a full year, then fifty (50) per centum of
the average wages, whether semi-monthly, weekly, or daily,
being earned by such workman during the time he was at work
for his employer before and at the time of the accident.
"§ 2. In case (1) the accident does not wholly incapacitate
the workman from the same or other gainful employment;
or (2) in case the workman, being at first wholly incapacitated,
thereafter recovers so as to be able to engage at labor in the
same or other gainful employment, thereby earning wages,
then in each case the amount of the semi-monthly payment
shall be one-half of the difference between the average earn-
ings of the workmen at the time of the accident determined
as above provided, and the average amount he is earning, or
1 This refers to § 67 of the Act of 1913. It was § 3 of the Act of 1912.
2 This is § 67 of the Act of 1913. It is § 7 of the Act of 1912.
DISABILITY BENEFITS 679
California
is capable of earning, thereafter, semi-monthly in the same
or other employment — it being the intent and purpose of this
chapter, that the semi-monthly payments shall not exceed,
but equal, from time to time one-half the difference between
the amount of average earnings ascertained as aforesaid at
the time of the accident, and the average amount which the
workman is earning, or is capable of earning, in the same or
other employment or otherwise, after the accident and at the
time of such semi-monthly payment. Such payments shall
cease upon the workman recovering and earning, or being
capable of earning, in the same or other gainful employment
or otherwise, wages equal to the amount being earned at the
time of the accident.
"Provided, however, that the payments shall continue to
be made as herein determined to the workman so long as
incapacity to earn wages in the same or other employment
continues, but in no case shall the total amount of such pay-
ments as provided in sub-sections 1 and 2 of this section ex-
ceed four thousand ($4000.00) Dollars.
CALIFORNIA *
"§ 15. Where liability for compensation under this act
exists such compensation shall be furnished or paid by the
employer and be as provided in the following schedule:
1 A number of California cases will be found under their proper classi-
fications in the preceding pages. Those which follow arose under special
provisions of the California statute or were such as were determined on
their peculiar facts and could not well be classified topically.
Applicant not subject to the compensation provisions of the law of
1911 because employer had not accepted compensation for thirty days
prior to the injury to Brackrog's right eye. Expenses of medical treat-
ment were paid by employer. Brackrog v. Macaulay Foundry Co., Cal.
Indus. Ace. Bd., Sept. 4, 1913.
Applicant was lifting slabs of marble off the ground and injured his
2 The omitted portion refers to medical attention and the waiting period.
See Chapters VIII and IX.
680 bradbury's workmen's compensation law
California
"2. The disability indemnity payable shall be as follows:
" (1) If the accident causes temporary total disability, sixty-
five per cent of the average weekly earnings during the period
of such disability;
back. This happened on April 1, 1913. He laid off for twelve days. He
then returned to wc$k and continued until May 12, 1913, when he re-
linquished his employment as a result of disagreement over wages. On
July 19, 1913, he filed his application for unpaid compensation. Held
that applicant was entitled to medical and surgical relief, and to com-
pensation according to law, for the injury, because it was clearly shown
that the employer knew the reason for the lay-off, and had neglected to
comply with the provisions of the law after electing so to do. The amount
awarded was $6.02, and the costs and expenses of medical treatment and
supplies reasonably necessary to cure and relieve applicant from the in-
jury. Elli v. Vermont Marble Co., Cal. Indus. Ace. Bd., Aug. 8, 1913.
Applicant was a laborer who badly strained his left ankle while in the
employ of the defendant. He received prompt treatment and compen-
sation for several weeks after the injury. He was then given lighter work.
Without presenting any well-defined reason he left the employment.
Nearly a year afterward he returned to defendant's employ. A claim was
presented for compensation for this period of nearly one year. It was
stipulated by both parties that the Industrial Accident Board should
determine the nature and extent of any partial disability that might be
found to exist for the period named. It was also stipulated that further
proceedings be suspended for six months without prejudice to renewal
thereof. Held that defendant should pay the sum of $150.68 for 445/7ths
weeks' partial disability. At the same time emphasis was laid on the
fact that compensation does not contemplate or aim at a making-good
for all loss sustained by reason of an. injury. Williamson v. Standard Oil
Co., Cal. Indus. Ace. Bd., June 26, 1913.
In this case applicant had been paid far in excess of the schedule pro-
vided by the law for an injury sustained in employment. Full wages
had been paid, instead of a 65% rate, and the medical and surgical benefit,
amounting to nearly four times the maximum of $100 required under
the Act. There was evidently a misunderstanding on the part of the
applicant and his attorney as to the law and it was believed that defend-
ant was liable in excess of the schedule. Held that there was no ground
for the claim, inasmuch as the defendant was paying compensation ac-
cording to the law and the disability had not ceased. Freitas v. Alameda
Sugar Co., Cal. Indus. Ace. Bd., Nov. 5, 1913.
Applicant was injured by the explosion of a dynamite charge, which
DISABILITY BENEFITS 681
California
"(2) If the accident causes temporary partial disability,
sixty-five per cent of the weekly loss in wages during the period
of such disability;
" (3) If the temporary disability caused by the accident is
injured the right leg, five teeth were knocked out and the lower lip badly
cut. The employer paid $46.75 for disability indemnity and $166.25 for
medical and surgical treatment, whereas there was only due, according
to the letter of the law, $20.62 for disability indemnity and $100 for medi-
cal and surgical treatment. Applicant asked for $1,200 for permanent in-
jury sustained. Held that there was no interference with earning power,
and that applicant was not entitled to additional compensation, inas-
much as his injuries were slight, according to expert medical testimony.
Baker v. ML Shasta Power Co., Cal. Indus. Ace. Bd., May 28, 1913.
Applicant was injured in a runaway accident while in the course of
employment. He was paid $181.20, but defendant refused further pay-
ments because of a claim that disability had ceased. Held that the earn-
ing power had been immaterially lessened and could not be taken into
consideration, but that defendant had erred in deducting $10.00 per month
hospital dues for the three months during which compensation payments
were made, unless with the expressed consent of applicant. An additional
amount of $30.30 was awarded in compensation payments, making a
total of $211.50. Dwyer v. General Petroleum Co., Cal. Indus. Ace,
Bd., June 24, 1913.
Applicant claimed compensation for an injury alleged to have been
sustained during the employment. Held that there was no evidence to
justify the claim, for applicant worked several months after the alleged
injury, without making any report to the employer, and the evidence
showed that the navel hernia of which he complained was very probably
due to some other cause than an accident sustained in the employment.
Augusto v. Standard Lumber Co., Cal. Indus. Ace. Bd., July 3, 1913.
Applicant broke bones of right hand by a fall in a shirt and overall fac-
tory. Held that she was entitled to the sum of $15.60 as disability in-
demnity for three weeks, and the reasonable costs and expenses incurred
by the applicant to cure and relieve her from the effects of the injury.
The only point at issue was the nature and extent of the injury, and the
decision was reached after the opinion of the medical referee had been
secured. Bess v. Broymstein Louis Co., Cal. Indus. Ace. Bd., Sept. 2,
1913.
Applicant ran splinters into his hands and broke his nose by running
into an electrician's conduit pipe. Defendant denied liability for com-
pensation. Held that the applicant was entitled to an award because the
682 bradbtjry's workmen's compensation law
California
at times total and at times partial, the weekly disability
indemnity during the periods of each such total or partial
disability shall be in accordance with paragraphs (1) and (2)
of this subdivision respectively;
accident happened during the employment and was not caused by the
wilful misconduct on the applicant's part. The medical and hospital
charges amounted to $85, and $26.51 for 1*/, weeks for disability in-
demnity. Field v. MacDonald & Kahn, Cal. Indus. Ace. Bd., Dec. 10,
1913.
Applicant asked for additional compensation for injury resulting in
permanent disability. Full compensation, together with expenses of
medical attendance, had been paid for the period of disability, amounting
to $554.94. Held that full compensation had been paid the applicant
as contemplated by law, and the application was denied, for the reason
that the injury to the left thumb was not sufficient to interfere with ap-
plicant's earning power. Brady v. Standard Oil Co., Cal. Indus. Ace.
Bd., Aug. 4, 1913.
This case was dismissed without prejudice, prior to any hearing. The
issue involved the question as to whether the applicant was injured while
in the course of her employment. She slipped while going down stairs
in a house where she was employed as cook arid housekeeper, and the
compromise noted above resulted before the Industrial Accident Board
was asked to adjudicate the controversy. Thompson v. Standard Oil Co.,
Cal. Indus. Ace. Bd., July 30, 1913.
This case did not come to final hearing because the State Supreme
Court decided that the State, Counties and Cities did not come under the
compensation provisions of the 1911 law unless they so elected. Nihill v.
Board of Supervisors of Santa Clara County, California, Cal. Indus. Ace.
Bd. Same ruling. Hannon v. San Francisco Board of Education, Cal.
Indus. Acci Bd.
This case was dismissed without prejudice, it having been withdrawn
by consent. Applicant broke his right arm while in the employ of the
defendant and his recovery was very slow. A dispute arose as to the
duration of the disability and an additional amount asked for medical
and surgical attention, but the compromise noted above was reached.
Carter v. Great Western Power Co., Cal. Indus. Ace. Bd., Jan. 13, 1913.
This case was dismissed for cause prior to any hearing, the applicant
having compromised his claim with the defendant. The controversy
arose over the duration of the period of disability for which compensa-
tion was due. Vincent v. Natomas Consolidated of California, Cal. Indus.
Ace. Bd., Dec. 5, 1913.
DISABILITY BENEFITS 683
California
" (4) Paragraphs (1), (2) and (3) of this subdivision shall
be limited as follows: aggregate disability indemnity for a
single injury causing temporary disability shall not exceed
three times the average annual earnings of the employee, nor
shall the aggregate disability period for such temporary dis-
Applicant in this case was the employer who desired to have the lia-
bility to defendant specified by the Industrial Accident Board. There
was no question about the medical attention, but there was a dispute
concerning the amount and duration of compensation payable. De-
fendant was poorly advised by a lawyer. Held that he had been paid the
Sull compensation for the period of disability and that the loss of the ends
and the nails of the little and fourth toes of the left foot would not inter-
fere with his earning capacity. Spreckels Bros. Commercial Co. v. Moore,
Cal. Indus. Ace. Bd., Oct. 8, 1913.
Applicant was the employer and was anxious to have determined by
the Industrial Accident Board the issue of probable permanent loss of
earning power consequent upon an injury sustained in employment.
Unfortunately defendant was badly advised and refused to file an answer
or make any appearance before the Board. The accident resulted in the
loss of the right arm at the shoulder. Held that his probable earnings
after this accident would be half wages. The amount awarded was
$196.77, less a nearly equal sum paid by the applicant, for 21 weeks' tem-
porary total disability, to be followed by the payment of $4.69 for 437.7
consecutive weeks. The total amount would equal $2,250. The applicant
furnished full medical and surgical treatment in excess of the $100 maxi-
mum. Mountain Copper Co. v. Bassignani, Cal. Indus. Ace. Bd., Oct. 29,
1913.
This is one of the few cases in which an employer filed an application
to determine liability. Defendant injured her left hand in the rollers of a
mangle. There was no doubt about the permanent nature of the injury,
and the only question at issue was the amount of compensation due.
There had been paid the defendant for disability indemnity the sum of
$470. Held that applicant was liable to the amount of $1,404, less $470
paid on account, and that the weekly payments of $2.92>£ per week for
319.32 consecutive weeks, beginning with August 24, 1914, and to be
continued until the balance of $934 has been paid. The attorney for the
defendant has filed suit in the Superior Court of the City and County
of San Francisco for the sum of $20,000, and has announced his in-
tention to test the constitutionality of the Compensation Law of
1911. Sterling Laundry Company v. Smith, Cal. Indus. Ace. Bd,, Dec. 22,
1913.
684 bradbury's workmen's compensation law
California
ability in any event extend beyond two hundred forty weeks
from the date of the accident.
" (5) If the accident causes permanent disability, the per-
centage of disability to total disability shall be determined
and the disability indemnity computed and allowed as fol-
lows: for a ten per cent disability, sixty-five per cent of the
average weekly earnings for a period of forty weeks; for a
twenty per cent disability, sixty-five per cent of the average
weekly earnings for a period of eighty weeks; for a thirty per
cent disability, sixty-five per cent of the average weekly
earnings for a period of one hundred twenty weeks; for a
forty per cent disability, sixty-five per cent of the average
weekly earnings for a period of one hundred sixty weeks; for a
fifty per cent disability, sixty-five per cent or the average
weekly earnings for a period of two hundred weeks; for a
sixty per cent disability, sixty-five per cent of the average
weekly earnings for a period of two hundred forty weeks; for
a seventy per cent disability, sixty-five per cent of the average
weekly earnings for a period of two hundred forty weeks, and
thereafter ten per cent of such weekly earnings during the
remainder of life; for an eighty per cent disability, sixty-five
per cent of the average weekly earnings for a period of two
hundred forty weeks, and thereafter twenty per cent of such
weekly earnings during the remainder of life; for a ninety
per cent disability, sixty-five per cent of the average weekly
earnings for a period of two hundred forty weeks and there-
after thirty per cent of such weekly earnings during the re-
mainder of life; for a hundred per cent disability, sixty-five
per cent of the average weekly earnings for a period of two
hundred forty weeks and thereafter forty per cent of such
weekly earnings during the remainder of life.
" (6) The indemnity for permanent disabilities intermediate
to those fixed by the foregoing schedule shall be computed
and allowed as follows: if under seventy per cent, sixty-
five per cent of the average weekly earnings for four weeks
for each one per cent of disability; if seventy per cent or
over, sixty-five per cent of the average weekly earnings for
two hundred forty weeks and thereafter one per cent of
such weekly earnings fcv each one per cent of disability in
DISABILITY BENEFITS 685
Connecticut '
excess of sixty per cent to be paid during the remainder of
life.
"(7) In determining the percentages of permanent dis-
ability, account shall be taken of the nature of the physical
injury or disfigurement, the occupation of the injured em-
ployee and his age at the time of such injury.
" (8) Nothing contained in the foregoing schedule of per-
manent disability indemnity shall be held to limit the amount
of compensation recoverable for any such permanent injury
during any period of total incapacity due to illness resulting
from that injury, but any sum so received shall be deducted
from the compensation payable in accordance with the said
schedule.
" (9) The following permanent disabilities shall be con-
clusively presumed to be total in character: Loss of both eyes
or the sight thereof; loss of both hands or the use thereof; an
injury resulting in a practically total paralysis; an injury to
the brain resulting in incurable imbecility or insanity. In all
other cases, permanent total disability shall be determined
in accordance with the fact.
"3. The death of the injured employee shall not affect the
liability of the employer under subsections (a) and (b) of this
section, so far as such liability has accrued and become pay-
able at the date of the death, and any accrued and unpaid
compensation shall be paid to the dependents, if any, without
administration, or if there are no dependents, to the personal
representatives of the deceased employee or other person
entitled thereto, but such death shall be deemed to be the
termination of the disability."
CONNECTICUT
"Part B. § 11. Compensation for Total Incapacity. In
case the injury results in total incapacity to perform work of
any character, there shall be paid to the injured employee a
weekly compensation equal to half of his average weekly
earnings at the time of the injury; but the compensation shall
in no case be more than ten dollars or less than five dollars
weekly; and such compensation shall not continue longer
686 • bradbtjry's workmen's compensation law
Connecticut
•i
than the period of total incapacity, or in any event longer
than five hundred and twenty weeks. The following injuries
of any person shall be considered as causing total incapacity
and compensation shall be paid accordingly: (a) Total and
permanent loss of sight in both eyes; (6) the loss of both feet
at or above the ankle; (c) the loss of both hands at or above
the wrist; (d) the loss of one foot at or above the ankle and
one hand at or above the wrist; (e) any injury resulting in
permanent and complete paralysis of the legs or arms or of
one leg and one arm; (/) any injury resulting in incurable
imbecility or insanity.
. " § 12. Compensation, for Partial Incapacity. In case the
injury results in partial incapacity, there shall be paid to the
injured employee a weekly compensation equal to half the
difference between his average weekly earnings before the
injury and what he is able to earn thereafter. This compensa-
tion shall in no case be more than ten dollars weekly and shall
continue during the period of partial incapacity, but not
longer than three hundred and .twelve weeks. If the employer
procures for an injured employee employment suitable to
his capacity the wages offered in such employment shall be
taken as the earning capacity of the injured employee. In
case of the following injuries the compensation, in lieu of all
other payments, shall be half of the previous average weekly
earnings of the injured employee for the terms respectively
indicated: (a) for the loss of one arm at or above the elbow,
or the complete and permanent loss of the use of one arm,
two hundred and eight weeks; (6) for the loss of one hand at
or above the wrist, or the complete and permanent loss of
the use of one hand, one hundred and fifty-six weeks; (c) for
the loss of one leg at or above the knee, or the complete and
permanent loss of the use of one leg, one hundred and eighty-
two weeks; (d) for the loss of one foot at or above the ankle,
or the complete and permanent loss of the use of one foot,
one hundred and thirty weeks; (e) for the complete and per-
manent loss of hearing in both ears, one hundred and fifty-six
weeks; (/) for the complete and permanent loss of hearing in
one ear, fifty-two weeks; (g) for the complete and permanent
loss of sight of one eye, one hundred and four weeks; (h) for
DISABILITY BENEFITS 687
Illinois
the loss of a thumb, thirty-eight weeks; (i) for the loss of a
first finger or a great toe, thirty-eight weeks; (j) for the loss
of a second finger, thirty weeks; a third finger, twenty-five
weeks; a fourth finger, twenty weeks; (k) for the loss of any
toe except the great toe, thirteen weeks. The loss of one
phalange of a thumb or two phalanges of a finger shall be
considered half the loss of a thumb or finger respectively, and
shall be compensated accordingly."
For allowance when advance payments are made see
Part B, § 14.
ILLINOIS
" § 8. The amount of compensation which shall be paid
to the employee for an injury not resulting in death shall be:
* * * * * * * * * * * i
" (6) If the period of temporary total incapacity for work
lasts for more than six working days, compensation equal to
one-half the earnings, but not less than $5.00 nor more than
$12.00 per week, beginning on the eighth day of such tem-
porary total incapacity, and continuing as long as the tem-
porary total incapacity lasts, but not after the amount of
compensation paid equals the amount which would have been
payable as a death benefit under paragraph (a), section 7, if
the employee had died as a result of the injury at the time
thereof, leaving heirs surviving as provided in said paragraph
(a), section 7.
"(c) For any serious and permanent disfigurement to the
hands, head or face, the employee shall be entitled to com-
pensation for such disfigurement, the amount to be fixed by
agreement or by arbitration in accordance with the provi-
sions of this Act, which amount shall not exceed one-quarter
of the amount of the compensation which would have been
payable as a death benefit under paragraph (a), section 7,
if the employee had died as a result of the injury at the time
1 Subdivision (a) relates to medical attention. See Chapter IX.
688 bkadbury's workmen's compensation law
Illinois
thereof, leaving heirs surviving, as provided in said para-
graph (a), section 7, provided that no compensation shall be
payable under this paragraph where compensation is payable
under paragraphs (d), (e), or (/) of this section.
" (d) If, after the injury has been sustained, the employee
as a result thereof becomes partially, though permanently
incapacitated from pursuing his usual and customary line of
employment, £e shall, except in the cases covered by the
specific schedule set forth in paragraph (e) of this section,
receive compensation, subject to the limitations as to time and
maximum amounts fixed in paragraphs (6) and (h) of this
section, equal to one-half of the difference between the aver-
age amount which he earned before the accident, and the
average amount which he is earning or is able to earn in some
suitable employment or business after the accident. In the
event the employee returns to the employment of the em-
ployer in whose service he was injured, the employee shall not
be barred from asserting a claim for compensation under
this Act, provided notice of such claim is filed with the in-
dustrial board within eighteen months after he returns to
such employment, and the said board shall immediately send
to the employer, by registered mail, a copy of such notice.
"(e) For injuries in the following schedule, the employee
shall receive in addition to compensation during the period of
temporary total incapacity for work resulting from such in-
jury, in accordance with the provisions of paragraphs (a)
and (6) of this section, compensation, for a further period,
subject to the limitations as to time and amounts fixed in
paragraphs (b) and (h) of this section, for the specific loss
herein mentioned, as follows, but shall not receive any com-
pensation under any other provision of this Act.
"For the loss of a thumb, or the permanent and complete
loss of its use, fifty per centum of the average weekly wage
during sixty weeks.
"For the loss of a first finger, commonly called the index
finger, or the permanent and complete loss of its use, fifty
per centum of the average weekly wage during thirty-five
weeks.
"For the loss of a second finger, or the permanent and com-
DISABILITY BENEFITS 689
Illinois
plete loss of its use, fifty per centum of the average weekly
wages during thirty weeks.
" For the loss of a third finger, or the permanent and com-
plete loss of its use, fifty per centum of the average weekly
wage during twenty weeks.
"For the loss of a fourth finger, commonly called the little
finger, or the permanent and complete loss of its use, fifty
per centum of the average weekly wage during fifteen weeks.
"The loss of the first phalange of the thumb, or of any
finger, shall be considered to be equal to the loss of one-half
of such thumb, or finger, and compensation shall be one-half
the amounts above specified.
" The loss jof more than one phalange shall be considered
as the loss of the entire finger or thumb: Provided, however,
that in no case shall the amount received for more than one
finger exceed the amount provided in this schedule for the
loss of a hand.
"For the loss of a great toe, fifty per centum of the average
weekly wage during thirty weeks.
"For the loss of one or more of the toes other than the great
toe, fifty per centum of the average weekly wage during ten
weeks.
"The loss of the first phalange of any toe shall be considered
to be equal to the loss of one-half of such toe, and compensa-
tion shall be one-half of the amount above specified.
"The loss of more than one phalange shall be considered as
the loss of the entire toe.
"For the loss of a hand, or the permanent and complete
loss of its use, fifty per centum of the average weekly wage
during one hundred and fifty weeks.
"For the loss of an arm, or the permanent and complete
loss of its use, fifty per centum of the average weekly wage
during two hundred weeks.
"For the loss of a foot, or the permanent and complete loss
of its use, fifty per centum of the average weekly wage during
one hundred and twenty-five weeks.
"For the loss of a leg, or the permanent and. complete loss
of its use, fifty per centum of the average weekly wage during
one hundred and seventy-five weeks.
44
690 beadbuky's workmen's compensation law
Illinois
"For the loss of the sight of an eye, fifty per centum of the
average weekly wage during one hundred weeks.
"The loss of both hands or both arms, or both feet, or both
legs, or both eyes, or of any two thereof, shall constitute total
and permanent disability, to be compensated according to
the compensation fixed by paragraph (/) of this section, pro-
vided that these specific cases of total and permanent dis-
ability shall not be construed as excluding other cases.
"(f) In the case of complete disability which renders the
employee wholly and permanently incapable of work, com-
pensation equal to 50 per cent of his earnings, but not less
than $5.00, nor more than $12.00 per week, commencing on
the day after the injury and continuing until the amount paid
equals the amount which would have been payable as a death
benefit under paragraph (a), section 7, if the employee had
died as a result of the injury at the time thereof, leaving heirs
surviving, as provided in said paragraph (a), section 7, and
thereafter a pension during life annually equal to 8 per cent
of the amount which would have been payable as a death
benefit under paragraph (a), section 7, if the employee had
died as a result of the injury at the time thereof, leaving heirs
surviving, as provided in said paragraph (a), section 7. Such
pension shall not be less than $10.00 per month and shall be
payable monthly.
" (g) In case death occurs as a result of the injury before
the total of the payments made equals the amount payable as
a death benefit, then in case the employee leaves any widow,
child or children, parents, grandparents or other lineal heirs,
entitled to compensation under section 7, the difference be-
tween the compensation for death and the sum of the pay-
ments made to the employee shall be paid, at the option of
the employer, either to the personal representative or the bene-
ficiaries of the deceased employee and distributed, as pro-
vided in paragraph (/) of section 7, but in no case shall the
amount payable under this paragraph be less than $500.00.
" Qi) In no event shall the compensation to be paid exceed
fifty per centum of the average weekly wage or exceed twelve
dollars per week in amount; nor, except in cases of complete
disability as defined above, shall any payments extend over a
DISABILITY BENEFITS 691
Iowa
period of more than eight years from the date of the accident.
In case an injured employee shall be incompetent at the time
when any right or privilege accrues to him under the provi-
sions of this Act, a conservator or guardian may be appointed
pursuant to law, and may, on behalf of such incompetent,
claim and exercise any such right or privilege with the same
force and effect as if the employee himself had been compe-
tent and had claimed or exercised said right or privilege; and
no limitations of time by this Act provided shall run so long
as said incompetent employee is without a conservator or
guardian.
" (i) All compensation provided for in paragraphs (6), (c),
(d), (e) and (J) of this section, other than cases of pension for
life, shall be paid in installments, at the same intervals at
which the wages or earnings of the employee were paid at the
time of the injury, or if this shall not be feasible, then the in-
stallments shall be paid weekly."
IOWA
"§10. * * * (h) For injury producing temporary dis-
ability, fifty (50%) per cent of the average weekly wages re-
ceived at the time of injury, subject to a maximum compensa-
tion of ten ($10.00) dollars and a minimum of five ($5.00)
dollars per week; provided, that if at the time of injury the
employe receives wages less than five ($5.00) dollars per
week, then he shall receive the full amount of wages per week.
This compensation shall be paid during the period of such
disability, not, however, beyond three hundred (300) weeks.
"(i) For disability total in character and permanent in
quality fifty (50%) per cent of the average weekly wages re-
ceived at the time of the injury, subject to a maximum com-
pensation of ten ($10.00) dollars per week, and a minimum of
five ($5.00) dollars per week; provided that if at the time
of injury, the employe- receives wages less than five ($5.00)
dollars per. week, then he shall receive the full amount of
wages per week. This compensation shall be paid during
the period of such disability, not however, beyond four
hundred (400) weeks.
692 bradbury's workmen's compensation iaw
Iowa
"(J) For disability partial in character and permanent in
quality the compensation shall be based upon the extent of
such disability.
"For all cases included in the following schedule compensa-
tion shall be paid as follows, to wit:
" (1) For the loss of a thumb fifty per cent (50%) of daily
wages during forty weeks.
"(2) For the loss of a first finger, commonly called the
index finger, fifty per cent (50%) of daily wages during thirty
(30) weeks.
" (3) For the loss of a second finger, fifty per cent (50%) of
daily wages during twenty-five (25) weeks.
" (4) For the loss of a third finger, fifty per cent (50%) of
daily wages during twenty (20) weeks.
" (5) For the loss of a fourth finger, commonly called the
little finger, fifty per cent (50%) of daily wages for fifteen (15)
weeks.
" (6) For the loss of the first phalange of the thumb or of
any finger shall be considered to be equal to the loss of one-
half of such thumb or finger and compensation shall be one-
half of the amounts above specified.
" (7) The loss of more than one phalange shall be considered
as the loss of the entire finger or thumb; provided, however,
that in no case shall the amount received for more than one
finger exceed the amount provided in this schedule for the
loss of a hand.
" (8) For the loss of a great toe, fifty per cent (50%) of
daily wages during twenty-five (25) weeks.
" (9) For the loss of one of the toes other than the great
toe, fifty per cent (50%) of daily wages during fifteen (15)
weeks.
"(10) For the loss of the first phalange of any toe, shall
be considered to be equal to the loss of one-half of such toe
and the compensation shall be one-half of the amount above
specified.
"(11) The loss of more than one phalange shall be con-
sidered as the loss of the entire toe.
" (12) For the loss of a hand fifty per cent (50%) of daily
wages during one hundred fifty (150) weeks.
DISABILITY BENEFITS 693
Iowa
" (13) For the loss of an arm fifty per cent (50%) of daily
wages during two hundred (200) weeks.
" (14) For the loss of a foot fifty per cent (50%) of daily
wages during one hundred twenty-five (125) weeks.
" (15) For the loss of a leg, fifty per cent (50%) of daily
wages during one hundred seventy-five (175) weeks.
" (16) For the loss of an eye, fifty per cent (50%) of daily
wages during one hundred (100) weeks.
"(17) For the loss of both arms, or both hands, or both
feet, or both legs, or both eyes, or of any two thereof, shall
constitute total and permanent disability to be compensated
according to provisions of Clause "I" Section Ten, Part One
hereof.
" (18) In all other cases in this, Clause "J" the compensa-
tion shall bear such relation to the amount stated in the above
schedule as the disability bears to those produced by the
injuries named in the schedule. Should the employe and em-
ployer be unable to agree upon the amount of compensation
to be paid in cases not specifically covered by the schedule,
the amount of compensation shall be settled according to
provisions of this act as in other cases of disagreement.
"(19) The amounts specified in this, Clause "J" and sub-
divisions thereof shall be subject to the same limitations as
to maximum and minimum weekly payments as are stated
in Clause "H," section ten hereof.
"§ 11. Where an employe" is entitled to compensation
under this Act for an injury received and death ensues from
any cause not resulting from the injury for which he was
entitled to the compensation, payments of the unpaid balance
for such injury shall cease and all liability therefor shall ter-
minate."
The amount of compensation cannot be waived. Part I,
§18.
694 bradbury's workmen's compensation law
Maryland
KANSAS
" § 11. Amount of compensation. The amount of compensa-
tion under this Act shall be: * * * 1 (p) Where total in-
capacity for work results from injury, periodical payments
during such incapacity, commencing at the end of the second
week, equal to fifty per cent of his average weekly earnings
computed as provided in section 12 but in no case less than
six dollars per week or more than fifteen dollars per week,
(c) When partial incapacity for work results from injury,
periodical payments during such incapacity, commencing at
the end of the second week, shall not be less than twenty-five
per cent, nor exceed fifty per cent, based upon the average
weekly earnings computed as provided in section 12, but in
no case less than three dollars per week or more than twelve
dollars per week; provided, however, that if the workman is
under twenty-one years of age at the date of the accident and
the average weekly earnings are less than $10.00 his compen-
sation shall not be less than seventy-five per cent of his aver-
age earnings. No such payment for total or partial disability
shall extend over a period exceeding eight years." (As am'd
by L. 1918, c. 216, approved March 10, 1913, in effect March 12,
1918.)
"§ 13. Payments to the injured workman. The payments
shall be made at the same time, place, and in the same manner
as the wages of the workman were payable at the time of the
accident, but a judge of any district court having jurisdiction
upon the application of either party may modify such regula-
tion in a particular case as to him may seem just."
MARYLAND
" § 5, (c) (II) In case of injury not resulting in death, where
total disability results from the injury, a weekly payment
during the period of such disability shall be paid to the in-
sured, which shall not be less than fifty per cent, of his aver-
age weekly wages during the previous twelve months, if he
1 The omitted part relates to death benefits.
DISABILITY BENEFITS 695
Massachusetts
has been so long employed by the contracting employer; if
not, then a weekly benefit during such shorter period as he
has been in the employment of said employer.
" (III) In case of injury not resulting in death, where par-
tial disability results, such weekly payments shall be made
during the period of such partial disability as is equal to the
difference between the weekly benefit payments during the
period of total disability and the average amount which the
injured person is able to earn after the accident.
"Loss by actual separation at or above the wrist or ankles
of both hands or both feet, or of one hand and one foot, or
the irrevocable loss of both eyes, shall be deemed to be equal
to total disability.
"The loss by actual separation at or above the wrist or
ankle of one hand or one foot shall be equal to one-half of
total disability, and the loss of one eye shall be equal to one-
fifth of total disability. Total disability shall be deemed to
mean inability to carry on any gainful occupation."
MASSACHUSETTS >
" Part II, § 9. While the incapacity for work resulting
from the injury is total, the association shall pay the injured
employe1 a weekly compensation equal to one-half his average
weekly wages, but not more than ten dollars nor less than
four dollars a week; and in no case shall the period covered
by such compensation be greater than five hundred weeks,
nor the amount more than three thousand dollars."
"§ 10. While the incapacity for work resulting from the
injury is partial, the association shall pay the injured em-
ploye a weekly compensation equal to one-half the difference
between his average weekly wages before the injury and the
average weekly wages which he is able to earn thereafter,
but not more than ten dollars a week; and in no case shall the
period covered by such compensation be greater than three
hundred weeks from the date of the injury."
1 A number of Massachusetts cases will be found cited in the discussion
under topical headings preceding the specific statutory provisions in this
chapter.
696 bradbury's workmen's compensation law
Massachusetts
"§11. In case of the following specified injuries the amounts
hereinafter named shall be paid in addition to all other com-
pensation:
(a) For the loss by severance of both hands at or above
the wrist, or both feet at or above the ankle, or the loss of
one hand and one foot, or the reduction to one-tenth of nor-
mal vision in feoth eyes with glasses, one-half of the average
weekly wages of the injured person, but not more than ten
dollars nor less than four dollars a week, for a period of one
hundred weeks.
(6) For the loss by severance of either hand at or above the
wrist, or either foot at or above the ankle, or the reduction
to one-tenth of normal vision in either eye with glasses, one-
half the average weekly wages of the injured person, but not
more than ten dollars nor less than four dollars a week, for a
period of fifty weeks.
(c) For the loss by severance at or above the second joint
of two or more fingers, including thumbs, or toes, one-half
the average weekly wages of the injured person, but not
more than ten dollars nor less than four dollars a week, for a
period of twenty-five weeks.
(d) For the loss by severance of at least one phalange of a
finger, thumb, or toe, one-half the average weekly wages of
the injured person, but not more than ten dollars nor less
than four dollars a week, for a period of twelve weeks.
(e) The additional amounts provided for in this section
in case of the loss of a hand, foot, thumb, finger or toe shall
also be paid for the number of weeks above specified, in case
the injury is such that the hand, foot, thumb, finger or toe
is not lost but is so injured as to be permanently incapable of
use. (As am'd by section 2 of chapter 571, Acts of 1912, and
by section 1 of chapter 445, Acts of 1913, and by section 1 of
chapter 696, Acts of 1913.)
§ 12. No savings or insurance of the injured employe,
independent of this act, shall be taken into consideration in
determining the compensation to be paid hereunder, nor shall
benefits derived from any other source than the association
be considered in fixing the compensation under this act.
DISABILITY BENEFITS 697
Michigan
MICHIGAN »
" Part II, § 9. While the incapacity for work resulting from
the injury is total, the employer shall pay, or cause to be
paid as hereinafter provided, to the injured employe a weekly
compensation- equal to one-half his average weekly wages, but
not more than ten dollars nor less than four dollars a week;
and in no case shall the period covered by such compensation
be greater than five hundred weeks, nor shall the total amount
of all compensation exceed four thousand dollars."
"§ 10. While the incapacity for work resulting from the
injury is partial, the employer shall pay or cause to be paid
as hereinafter provided, to the injured employe- a weekly
compensation equal to one-half the difference between his
average weekly wages before the injury and the average
weekly wages which he is able to earn thereafter, but not
more than ten dollars a week; and in no case shall the period
covered by such compensation be greater than three hundred
weeks from the date of the injury. In cases included by the
following schedule the disability in each such case shall be
deemed to continue for the period specified, and the compensa-
tion so paid for such injury shall be as specified therein,
to-wit:
"For the loss of a thumb, fifty per centum of the average
weekly wages during sixty weeks;
"For the loss of a first finger, commonly called index finger,
fifty per centum of average weekly wages during thirty-five
weeks;
"For the loss of a second finger, fifty per centum of average
weekly wages during thirty weeks;
"For the loss of a third finger, fifty per centum of average
weekly wages during twenty weeks;
"For the loss of a fourth finger, commonly called little
finger, fifty per centum of average weekly wages during fifteen
weeks;
1 A number of Michigan cases will be found cited in the discussion under
topical headings preceding the specific statutory provisions in this chapter.
698 bbadbury's workmen's compensation law
Michigan
"The loss of the first phalange of the thumb, or of any
finger, shall be considered to be equal to the loss of one-half
of such thumb, or finger, and compensation shall be one-half
the amounts above specified;
"The loss of more than one phalange shall be considered
as the loss of the entire finger or thumb: Provided, however,
That in no case shall the amount received" for more than one
finger exceed the amount provided in this schedule for the
loss of a hand;
"For the loss of a great toe, fifty per centum of average
weekly wages during thirty weeks;
"For the loss of one of the toes other than a great toe,
fifty per centum of average weekly wages during ten weeks;
"The loss of the first phalange of any toe shall be consid-
ered to be equal to the loss of one-half of such toe, and com-
pensation shall be one-half of the amount above specified;
"The loss of more than one phalange shall be considered
as the loss of the entire toe;
"For the loss of a hand, fifty per centum of average weekly
wages during one hundred and fifty weeks;
"For the loss of an arm, fifty per centum of average weekly
wages during two hundred weeks;
"For the loss of a foot, fifty per centum of average weekly
wages during one hundred and twenty-five weeks;
"For the loss of a leg, fifty per centum of average weekly
wages during one hundred and seventy-five weeks;
"For the loss of an eye, fifty per centum of average weekly
wages during one hundred weeks;
"The loss of both hands, or both arms, or both feet, or
both legs, or both eyes, or of any two thereof, shall constitute
total and permanent disability, to be compensated according
to the provisions of section nine.
"The amounts specified in this clause are all subject to the
same limitations as to maximum and minimum as above
stated."
DISABILITY BENEFITS 699
Minnesota
MINNESOTA
"Part II. §13. Schedule of compensation allowed under act.
— Following is the schedule of compensation: (a) For in-
jury producing temporary total disability, fifty per centum
of the wages received at the time of injury, subject to a maxi-
mum compensation of ten dollars ($10.00) per week and a
minimum of six dollars ($6.00) per week; provided, that if at
the time of injury the employe- receives wages of less than six
dollars ($6.00) per week, then he shall receive the full amount
of such wages per week. This compensation shall be paid
during the period of such disability, not, however, beyond
three hundred weeks. Payments to be made at the intervals
when the wage was payable, as nearly as may be.
"(6) In all cases of temporary partial disability the com-
pensation shall be fifty per cent of the difference between the
wage of the workman at the time of the injury, and the wage
he is able to earn in his partially disabled condition. This
compensation shall be paid during the period of such dis-
ability, not however beyond three hundred weeks, payment
to be made at the intervals when the wage was payable as
nearly as may be and subject to the same maximum and
minimum as stated in (a).
"(c) For permanent partial disability, the compensation
shall be based upon the extent of such disability. In cases
included by the following schedule the compensation shall
be that named in the schedule, to-wit:
"For the loss of a thumb, fifty per centum of daily wages
during sixty (60) weeks.
"For the loss of a first finger, commonly called index finger,
fifty per centum of daily wages during thirty-five (35) weeks.
"For the loss of a second finger, fifty per centum of daily
wages during thirty (30) weeks.
"For the loss of a third finger, fifty per centum of daily
wages during twenty (20) weeks.
"For the loss of a fourth finger, commonly called little
finger, fifty per centum of daily wages during fifteen weeks..
"The loss of the first phalange of the thumb, or of any
700 bradbury's workmen's compensation law
Minnesota
, a
finger, shall be considered equal to the loss of one-half of such
thumb, or finger, and compensation shall be one-half the
amounts specified above for such thumb or finger.
"The loss of more than one phalange shall be considered as
the loss of the entire finger or thumb; providing, however,
that in no case shall the amount received for more than one
finger exceed *the amount provided in this schedule for the
loss of a hand.
" For the loss of a great toe, fifty per centum of daily wages
during thirty (30) weeks.
"For the loss of one of the toes other than a great toe, fifty
per centum of daily wages during ten (10) weeks.
"The loss of the first phalange of any toe shall be con-
sidered to be equal to the loss of one-half of such toe, and com-
pensation shall be one-half of the amount above specified.
"The loss of more than one phalange shall be considered
as the loss of the entire toe.
"For the loss of a hand, fifty per centum of daily wages
during one hundred and fifty (150) weeks.
"For the loss of an arm, fifty per centum of daily wages
during two hundred (200) weeks.
"For the loss of a foot, fifty per centum of daily wages dur-
ing one hundred and twenty-five (125) weeks.
"For the loss of a leg, fifty per centum of daily wages dur-
ing one hundred and seventy-five (175) weeks.
"For the loss of an eye, fifty per centum of daily wages
during one hundred (100) weeks.
"In all other cases of permanent partial disability, not
above enumerated, the compensation shall be fifty per centum
of the difference between the wage of the workman at the
time of the injury and the wage he is able to earn in his par-
tially disabled condition. Compensation shall continue dur-
ing disability, not however, beyond three hundred (300) weeks.
"In all cases of permanent partial disability within the
foregoing schedule, it shall be considered that the permanent
loss of the use of a member shall be equivalent to and draw
the same compensation as the loss of that member; but the
compensation in and by said schedule provided, shall be in
lieu of all other compensation in such cases.
DISABILITY BENEFITS 701
Nebraska
"Should the employer and employe be unable to agree.
upon the amount of compensation to be paid, the amount of
compensation shall be determined according to the provisions
of Section 30 hereof.
The compensations provided in clause (c) are all subject to
the same limitations as to maximum and minimum as are
stated in clause (a).
"(d) For permanent total disability, fifty per centum of
the wages received at the time of injury, subject to a maximum
compensation of ten dollars ($10.00) per week and a minimum
of six dollars ($6.00) per week; provided, that if at the time
of injury the employe receives wages of less than six dollars
($6.00) per week, then he shall receive the full amount of
wages per week. This compensation shall be paid during the
period of such disability, not, however, beyond four hundred
(400) weeks; payment to be made at the intervals when the
wage was payable, as nearly as may be.
"(e) The loss of both hands, or both arms, or both feet,
or both legs, or both eyes, or of any two thereof, or a total
loss of mental faculties, or complete paralysis of both legs
or both arms, shall constitute permanent total disability."
"Part II, § 15. Injury increasing disability. — If an em-
ploye- receive an injury, which, of itself, would only cause
permanent partial disability, but which, combined with a
previous disability, does in fact cause permanent total dis-
ability, the employer shall only be liable for the permanent
partial disability caused by the subsequent injury."
For provision when there are joint employers see § 16.
NEBRASKA
"Part II, § 21. The following schedule of compensation is
hereby established for injuries resulting in disability;
"(1) For the first three hundred weeks of total disability
the compensation shall be fifty per centum of the wages re-
ceived at the time of injury, but such compensation shall not
be more than ten dollars per week or less than five dollars per
702 bkadbury's workmen's compensation law
Nebraska
week; Provided, that, if at the time of injury the employe
receives wages of less than five dollars per week, then he shall
receive the full amount of such wages per week as compensa-
tion. After the first three hundred weeks of total disability,
for the remainder of the life of the employe, he shall receive
forty per centum of the wages received at the time of the in-
jury, but the compensation shall not be more than eight
dollars per week nor less than four dollars per week; Pro-
vided, that, if at the time of the injury the employe receives
wages of less than four dollars per week, then he shall receive
the full amount of such wages as compensation. Nothing in
this subdivision shall require the payment of compensation
after disability shall cease. Should partial disability be fol-
lowed by total disability, the period of three hundred weeks
mentioned in this subdivision of this section shall be reduced
by the number of weeks during which compensation was paid
for such partial disability.
"(2) For disability partial in character (except the par-
ticular cases mentioned in subdivision 3 of this section), the
compensation shall be fifty per centum of the difference
between the wages received at the time of injury and the
earning power of the employe thereafter; but such compensa-
tion shall not be more than ten dollars per week. This com-
pensation shall be paid during the period of such partial dis-
ability; not, however, beyond three hundred weeks after the
date of the accident causing the disability. Should total
disability be followed by partial disability, the period of three
hundred weeks mentioned in this subdivision shall be reduced
by the number of weeks during which compensation was paid
for such total disability.
" (3) For all disability resulting from permanent injury of
the following classes, the compensation shall be exclusively
as follows:
"For the loss of a hand, fifty per centum of the wages dur-
ing one hundred and seventy-five weeks;
"For the loss of an arm, fifty per centum of wages during
two hundred and fifteen weeks;
" For the loss of a foot, fifty per centum of wages during one
hundred and fifty weeks;
DISABILITY BENEFITS 703
Nebraska
" For the loss of a leg, fifty per centum of wages during two
hundred and fifteen weeks;
"For the loss of an eye, fifty per centum of wages during
one hundred and twenty-five weeks;
" For the loss of any two or more of such members, not con-
stituting total disability, fifty per centum of wages during
the aggregate of the periods specified for each.
"The loss of both hands or both arms, or both feet, or both
legs, or both eyes shall constitute total disability, to be com-
pensated according to the provisions of subdivision 1 of this
section.
"Amputation between the elbow and the wrist shall be
considered as the equivalent of the loss of a hand, and ampu-
tation between the knee and the ankle shall be considered as
the equivalent of the loss of a foot. Amputation at or above
the elbow shall be considered as the loss of an arm, and ampu-
tation at or above the knee shall be considered as the loss of
a leg. Permanent loss of the use of a hand, arm, foot, leg or
eye shall be considered as the equivalent of the loss of such
hand, arm, foot, leg or eye.
"Compensation under this subdivision shall not be more
than ten dollars per week nor less than five dollars per week;
Provided, that, if at the time of injury the employe1 received
wages of less than five dollars per week, then he shall receive
the full amount of such wages per week as compensation."
" Part II, § 28. (Injury increasing disability) If an employe"
receives an injury, which, of itself, would only cause partial
disability, but which, combined with a previous disability,
does in fact cause total disability, the employer shall only
be liable as for the partial disability, so far as the subsequent
injury is concerned."
"Part II, §30. (Contributions by employ^) No savings
or insurance of the injured employ^, or any contribution made
by him to any benefit fund or protective association independ-
ent of this Act shall be taken into consideration in determining
the compensation to be paid hereunder, nor shall benefits
derived from any other source than those paid or caused to be
paid by the employer as herein provided, be considered in
fixing the compensation under this Act."
704 bradburt's workmen's compensation law
Nevada
NEVADA
" § 25. * * * (c) For complete disability, compensation
fifty per cent of the average monthly wages, but not more
than $60, nor less than $20 per month for one hundred months;
total amount»not to exceed $5,000.
" (d) For partial disability, one-half the difference between
the wages earned before injury and wages which injured is
able to earn thereafter but not more than $40 a month for a
period not to exceed sixty months.
"Specific payments of injuries as per the following schedule,
subject to a maximum of $60.00 and a minimum of $20.00
per month;
"For the loss of a thumb, fifty per cent of the average
monthly wages during fifteen months.
"For the loss of a first finger, commonly called the index
finger, fifty per cent [ of the average monthly wages during
nine months.
" For the loss of a second finger, fifty per cent of. the average
monthly wages during seven months.
"For the loss of a third finger, fifty per cent of the average
monthly wages during five months.
"For the loss of a fourth finger, commonly called the little
finger, fifty per cent of the average wages during four months.
"The loss of more than one phalange shall be considered as
the loss of the entire finger or thumb; provided, however, that
in no case shall the ampunt received for more than one finger
exceed the amount provided in this schedule for the loss of a
hand
"For the loss of a great toe, fifty per cent of the average
monthly wages during seven months.
"For the loss of one of the other toes other than great toe,
fifty per cent of the average monthly wages during two months
and one-half. However, the loss of the first phalange of any
toe shall be considered to be equal to the loss of one-half of
such toe, and compensation shall be one-half of the amount
above specified.
DISABILITY BENEFITS 705
New Hampshire
" The loss of more than one phalange shall be considered as
the loss of the entire toe.
"For the loss of a hand, fifty per cent of the average monthly
wages during forty months.
"For the loss of an arm, fifty per cent of the average
monthly wages during fifty months.
"For the loss of a foot, fifty per cent of the average monthly
wages during thirty-five months.
"For the loss of a leg, fifty per cent of the average monthly
wages during forty-five months.
"For the loss of an eye, fifty per cent of the average
monthly wages during twenty-five months.
"However, the loss of both hands, or both arms, or both
legs, or both eyes, or any part thereof, shall constitute total
and permanent disability to be compensated according to
the provisions of section 25, subdivision 'C.'"
NEW HAMPSHIRE
" § 6. (2) Where total or partial incapacity for work at
any gainful employment results to the workman from the
injury, a weekly payment commencing at the end of the
second week after the injury and continuing during such
incapacity, subject as herein provided, not exceeding fifty
per centum of his average weekly earnings when at work on
full time during the preceding year during which he shall
have been in the employment of the same employer, or if he
shall have been in the employment of the same employer for
less than a year, then a weekly payment of not exceeding
one-half the average weekly earnings on full time for such
less period. In fixing the amount of the weekly payment,
regard shall be had to the difference between the amount of
the average earnings of the workman before the accident and
the average amount he is able to earn thereafter as wages
in the same employment or otherwise. In fixing the amount
of the weekly payment, regard shall be had .to any payment,
allowance or benefit which the workman may have received
from the employer during the period of his incapacity, and
45
706 bradbury's workmen's compensation law
New Jersey
in the case of partial incapacity the weekly payment shall in
no case exceed the difference between the amount of the
average weekly earnings of the workman before the accident
and the average weekly amount which he is earning or is
able to earn in the same employment or otherwise, after the
accident, but shall amount to one-half of such difference. In
no event shall^any compensation paid under this act exceed
the damage suffered, nor shall any weekly payment payable
under this act in any event exceed ten dollars a week or ex-
tend over more than three hundred weeks from the date of
the accident. Such payment shall continue for such period
of three hundred weeks provided total or partial disability
continue during such period. No such payment shall be due
or payable for any time prior to the giving of the notice re-
quired by Sec. 5 of this act."
NEW JERSEY x
"§ II. 11. Following is the schedule of compensation:
" (a) Schedule of payments. Temporary disability. Proviso.
For injury producing temporary disability, fifty per centum
of the wages received at the time of injury, subject to a maxi-
mum compensation of ten dollars per week and a minimum
of five dollars per week; provided, that if at the time of injury
the employe" receives wages of less than five dollars per week,
then he shall receive the full amount of such wages per week.
This compensation shall be paid during the period of such
disability, not, however, beyond three hundred weeks.
"(b) Complete disability. Proviso. For disability total in
character and permanent in quality, fifty per centum of the
wages received at the time of injury, subject to a maximum
compensation of ten dollars per week and a minimum of five
dollars per week; provided, that if at the time of injury the
employe" receives wages of less than five dollars per week,
then he shall receive the full amount of wages per week. This
1 A number of New Jersey cases will be found cited in the discussion
under topical headings preceding the specific statutory provisions in this
Chapter.
DISABILITY BENEFITS 707
New Jersey
compensation shall be paid during the period of such disa-
bility, not, however, beyond four hundred weeks.
"(c) Partial disability. For disability partial in character
but permanent in quality, the compensation shall be based
upon the extent of such disability. In cases included by the
following schedule the compensation shall be that named in
the schedule, to wit:
" Thumb. For the loss of a thumb, fifty per centum of daily
wages during sixty weeks.
"First finger. For the loss of a first finger, commonly called
.index finger, fifty per centum of daily wages during thirty-five
weeks.
"Second finger. For the loss of a second finger, fifty per
centum of daily wages during thirty weeks.
" Third finger. For the loss of a third finger, fifty per centum
of daily wages during twenty weeks.
"Fourth finger. For the loss of a fourth finger, commonly
called little finger, fifty per centum of daily wages during
fifteen weeks.
"Phalange. The loss of the first phalange of the thumb, or
of any finger, shall be considered to be equal to the loss of
one-half of such thumb, or finger, and compensation shall be
for one-half of the periods of time above specified, and com-
pensation for the loss of one-half of the first phalange shall
be for one-fourth of the periods of time above specified.
"More than one phalange. Proviso. The loss of more than
one phalange shall be considered as the loss of the entire
finger or thumb; providing, however, that in no case shall the
amount received for more than one finger exceed the amount
provided in this schedule for the loss of a hand.
"Great toe. For the loss of a great toe, fifty per centum of
daily wages during thirty weeks.
"Other toes. For the loss of one of the toes other than
a great toe, fifty per centum of daily wages during ten
weeks.
"Phalange of toe. For the loss of the first phalange of any
toe shall be considered to be equal to the loss of one-half of
such toe, and compensation shall be one-half of the amount
above specified.
708 bradbury's workmen's compensation law
New Jersey
"More than one phalange. The loss of more than one
phalange shall be considered as the loss of the entire toe.
"Hand. For the loss of a hand, fifty per centum of daily
wages during one hundred and fifty weeks.
"Arm. For the loss of an arm, fifty per centum of daily
wages during two hundred weeks.
"Foot. For the loss of a foot, fifty per centum of daily
wages during one hundred and twenty-five weeks.
"Leg. For the loss of a leg, fifty per centum of daily wages
during one hundred and seventy-five weeks.
"Eye. For the loss of an eye, fifty per centum of daily
wages during one hundred weeks.
"Both hands, etc. The loss of both hands, or both arms, or
both feet, or both legs, or both eyes, or of any two thereof,
shall constitute total and permanent disability, to be compen-
sated according to the provisions of clause (6).
"In other cases. In all other cases in this class, or where
the usefulness of a member or any physical function, is per-
manently impaired, the compensation shall bear such relation
to the amounts stated in the above schedule as the disabilities
bear to those produced by the injuries named in the schedule.
Should the employer and employ6 be unable to agree upon
the amount of compensation to be paid in cases not covered
by the schedule, the amount of compensation shall be settled
according to the provisions of paragraph twenty hereof.
"Maximum and minimum amounts. The amounts specified
in this clause are all subject to the same limitations as to
maximum and minimum as are stated in clause (a).
"In case of death during period of payments. In case of the
death of a person from any cause other than the accident,
during the period of payments for permanent injury, the
remaining payments shall be paid to his or her dependents,
according to the provisions of paragraph twelve of this act,
or, if no dependents, the remaining amount due but not ex-
ceeding one hundred dollars, shall be paid in a lump sum to
the proper person for funeral expenses. (As amended by
L. 1913, c. 174, effective April 1, 1913.)
"§ II, 14a. Compensation consecutive, not concurrent. Maxi-
mum number of payments. Compensation shall run consecu-
DISABILITY BENEFITS 709
New York
tively and not concurrently, as follows: First two weeks,
medical and hospital services and medicines, as provided in
paragraph fourteen. After the first two weeks, compensation
during temporary disability. Following both, either or none
of the above, compensation consecutively for each permanent
injury. Following any or all or none of the above, if death
results from the accident, expenses of last sickness and burial.
Following which compensation to dependents, if any. In
no case shall the total number of weekly payments be more
than four hundred." (Added by L. 1913, c. 174, effective
April 1, 1913).
"§ III, 23. * * * As to amputation. Amputation between
the elbow and the wrist shall be considered as the equivalent
of the loss of a hand, and amputation between the knee and
the ankle shall be considered as the equivalent of the loss of
afoot."
NEW YORK
" § 15. Schedule in case of disability. The following sched-
ule of compensation is hereby established:
"1. Total permanent disability. In case of total disability
adjudged to be permanent sixty-six and two-thirds per cen-
tum of the average weekly wages shall be paid to the employee
during the continuance of such total disability. Loss of both
hands, or both arms, or both feet, or both legs, or both eyes,
or of any two thereof shall, in the absence of conclusive proof
to the contrary, constitute permanent total disability. In
all other cases permanent total disability shall be determined
in accordance with the facts.
"2. Temporary total disability. In case of temporary total
disability, sixty-six and two-thirds per centum of the average
weekly wages shall be paid to the employee during the con-
tinuance thereof, but not in excess of three thousand five
hundred dollars, except as otherwise provided in this chapter.
"3. Permanent partial disability. In case of disability
partial in character but permanent in quality the compensa-
tion shall be sixty-six and two-thirds per centum of the aver-
710 bradbury's workmen's compensation law
New York
age weekly wages and shall be paid to the employee for the
period named in the schedule as follows:
" Thumb. For the loss of a thumb, sixty weeks. -
" First finger. For the loss of a first finger, commonly called
index finger, forty-six weeks.
"Second finger. For the loss of a second finger, thirty
weeks. *
" Third finger. For the loss of a third finger, twenty-five
weeks.
"Fourth finger. For the loss of a fourth finger, commonly
called the little finger, fifteen weeks.
"Phalange of thumb or finger. The loss of the first phalange
of the thumb or finger shall be considered to be equal to the
loss of one-half of such thumb or finger, and compensation
shall be one-half of the amount above specified. The loss of
more than one phalange shall be considered as the loss of the
entire thumb or finger; provided, however, that in no case
shall the amount received for more than one finger exceed
the amount provided in this schedule for the loss of a hand.
"Great toe. For the loss of a great toe, thirty-eight weeks.
"Other toes. For the loss of one of the toes other than the
great toe, sixteen weeks.
"Phalange of toe. The loss of the first phalange of any toe
shall be considered to be equal to the loss of one-half of said
toe, and the compensation shall be one-half of the amount
specified. The loss of more than one phalange shall be con-
sidered as the loss of the entire toe.
"Hand. The loss of a hand, two hundred and forty-four
weeks.
"Arm. For the loss of an arm, three hundred and twelve
weeks.
"Foot. For the loss of a foot, two hundred and five weeks.
"Leg. For the loss of a leg, two hundred and eighty-eight
weeks.
"Eye. For the loss of an eye, one hundred and twenty-
eight weeks.
"Loss of use. Permanent loss of the use of a hand, arm, foot,
leg or eye shall be considered as the equivalent of the loss of
such hand, arm, foot, leg or eye.
DISABILITY BENEFITS 711
New York
"Amputations. Amputation between the elbow and the
wrist shall be considered as the equivalent of the loss of a
hand. Amputation between the knee and the ankle shall be
considered as the equivalent of the loss of a foot. Amputa-
tion at or above the elbow shall be considered as the loss of
an arm. Amputation at or above the knee shall be con-
sidered as the loss of the leg.
"The compensation for the foregoing specific injuries shall
be in lieu of all other compensation, except the benefits pro-
vided in section thirteen of this chapter.1
"Other cases. In all other cases in this class of disability,
the compensation shall be sixty-six and two-thirds per centum
of the difference between his average weekly wages and his
wage-earning capacity thereafter in the same employment
or otherwise, payable during the continuance of such partial
disability, but subject to reconsideration of the degree of such
impairment by the commission on its own motion or upon
application of any party in interest.
"4. Temporary partial disability. In case of temporary
partial disability, except the particular cases mentioned in
subdivision three of this section, an injured employee shall
receive sixty-six and two-thirds per centum of the difference
between his average weekly wages and his wage earning
capacity thereafter in the same employment or otherwise
during the continuance of such partial disability, but not in
excess of three thousand five hundred dollars, except as other-
wise provided in this chapter.
"5. Limitation. The compensation payment under sub-
divisions one, two and four and under subdivision three except
in case of the loss of a hand, arm, foot, leg, or eye, shall not
exceed fifteen dollars per week nor be less than five dollars
per week; the compensation payment under subdivision three
in case of the loss of a hand, arm, foot, leg or eye, shall not
1 Section 13 provides for medical and hospital attention. Some of the
acts notably those of New Jersey and Massachusetts, allow specific in-
demnities for the loss of a foot, hand, etc., in addition to benefits for actual
disability due to the injury. But the schedules in those acts are con-
siderably lower than that contained in the New York statute.
712 Bradbury's workmen's compensation law
Ohio
exceed twenty dollars per week nor be less than five dollars
a week; provided, however, that if the employee's wages at
the time of injury are less than five dollars per week he shall
•receive his full weekly wages.
"6. Previous disability. The fact that an employee has
suffered previous disability or received compensation there-
for shall not nreclude him from compensation for a later in-
jury nor preclude compensation for death resulting there-
from; but in determining compensation for the later injury
or death his average weekly wages shall be such sum as will
reasonably represent his earning capacity at the time of the
later injury."
OHIO1
"1465-79; §32, Act of 1913. In case of temporary dis-
ability, the employe shall receive sixty-six and two-thirds per
cent, of his average weekly wages so long as such disability
is total, not to exceed a maximum of twelve dollars per week,
and not less than a minimum of five dollars per. week, unless
the employe's wages shall be less than five dollars per week,
in which event he shall receive compensation equal to his
full wages; but in no case to continue for more than six years
from the date of the injury, or to exceed three thousand,
seven hundred and fifty dollars.
" 1465-80; § 33, Act of 1913. In case of injury resulting in
partial disability, the employe" shall receive sixty-six and
two-thirds per cent, of the impairment of his earning ca-
pacity during the continuance thereof, not to exceed a maxi-
mum of twelve dollars per week, or a greater sum in the
aggregate than thirty-seven hundred and fifty dollars. In
cases included in the following schedule, the disability in each
case shall be deemed to continue for the period specified and
the compensation so paid for such injury shall be as specified
herein, to wit:
1 A number of Ohio cases will be found cited in the discussion under
topical headings preceding the specific statutory provisions in this
chapter.
DISABILITY BENEFITS 713
Ohio
"For the loss of a thumb, 662/3% of the average weekly
wages during sixty weeks.
" For the loss of a first finger, commonly called index finger,
662/3% of the average weekly wages during thirty-five weeks.
"For the loss of a second finger. 662/3% of the average
weekly wages during thirty weeks.
"For the loss of a third finger, 662/3% of the average weekly
wages during twenty weeks.
"For the loss of a fourth finger, commonly known as the
little finger, 662/3% of the average weekly wages during fifteen
weeks.
"The loss of the second, or distal phalange, of the thumb
shall be considered to be equal to the loss of one-half of such
thumb; the loss of more than one-half of such thumb shall
be considered to be equal to the loss of the'whole thumb.
"The loss of the third, or distal phalange, of any finger shall
be considered to be equal to the loss of one-third of such
finger.
"The loss of the middle, or second phalange, of any finger
shall be considered to be equal to the loss of two-thirds of
such finger.
"The loss of more than the middle and distal phalanges of
any finger shall be considered to be equal to the loss of the
whole finger; provided, however, that in no case will the
amount received for more than one finger exceed the amount
provided in this schedule for the loss of a hand.
"For the loss of the metacarpal bone (bones of palm) for
the corresponding thumb, finger, or fingers as above, add ten
weeks to the number of weeks as above.
"For ankylosis (total stiffness of) or contractures (due to
scars or injuries) which makes the fingers more than useless,
the same number of weeks apply to such finger or fingers
(not thumb) as given above.
"For the loss of a hand, 662/3% of the average weekly
wages during one hundred and fifty weeks.
"For the loss of an arm, 662/3% of the average weekly
wages during two hundred weeks.
"For the loss of a great toe, 662/3% of the average weekly
wages during thirty weeks.
714 bradbtjky's workmen's compensation law
Oregon
"For the loss of one of the toes other than the great
toe, 662/3% of the average weekly wages during ten
weeks.
" The loss of more than two-thirds of any toe shall be con-
sidered to be equal to the loss of the whole toe.
"The loss of less than two-thirds of any toe shall be con-
sidered to be no loss;
"For the loss of a foot, 662/3% of the average weekly wages
during one hundred and twenty-five weeks.
"For the loss of a leg, 662/3% of the average weekly wages
during one hundred and seventy-five weeks.
"For the loss of an eye, 662/3% of the average weekly wages
during one hundred weeks.
"The amounts specified in this clause are all subject to the
limitation as to the maximum weekly amount payable as
hereinbefore specified in this section.
" 1466-81 ; § 34, Act of 1913. In cases of permanent total
disability, the award shall be sixty-six and two-thirds per
cent, of the average weekly wages, and shall continue until
the death of such person so totally disabled, but not to exceed
a maximum of twelve dollars per week and not less than a
minimum of five dollars per week, unless the employe's
average weekly wages are less than five dollars per week
at the time of the injury, in which event he shall receive
compensation in an amount equal to his average weekly
wages.
"The loss of both hands or both arms, or both feet or both
legs, or both eyes, or of any two thereof, shall prima facie
constitute total and permanent disability, to be compensated
according to the provisions of this section."
OREGON
"§21. * * * (6) Permanent total disability means the
loss of both legs or both arms, or one leg and one arm, total
loss of eyesight, paralysis, or other condition permanently
incapacitating the workman from performing any work at
any gainful occupation.
DISABILITY BENEFITS 715
Oregon
"When permanent total disability results from the injury,
the workman shall receive monthly during the period of such
disability:
"(1) If unmarried at the time of the injury the sum of
thirty dollars ($30).
" (2) If the workman have a wife or invalid husband, but
no child under the age of 16 years, the sum of thirty-five
dollars ($35). If the husband is not an invalid the monthly
payment of thirty-five dollars ($35) shall be reduced to thirty
dollars ($30).
" (3) If the workman have a wife or husband and a child
or children under the age of 16 years, or being a widow or
widower, have any such child or children, the monthly pay-
ment provided in the preceding paragraph shall be increased
by six dollars ($6) for each such child until such child shall
arrive at the age of 16 years, but the total monthly payment
shall not exceed fifty dollars ($50).
" (c) If the injured workman die during such period of total
disability, whatever the cause of death, leaving a widow,
invalid widower, or child under the age of 16 years, the sur-
viving widow, or invalid widower, shall receive thirty dollars
($30) per month until death or remarriage, to be increased
six dollars ($6) per month for each child under the age of 16
years until such child shall arrive at the age of 16 years; but
if such child is, or shall be, without father or mother, such
child shall receive fifteen dollars ($15) per month until ar-
riving at the age of 16 years, provided, however, that if any
child is under the age of 16 years and over the age of 15 years,
he shall be entitled to recover such payment for the period
of one year. The total combined monthly payment under
this paragraph shall in no case exceed fifty dollars ($50).
Upon remarriage, the payments on account of a child or
children shall continue as before to the child or children.
"(d) When the total disability is only temporary the
schedule of payments contained in paragraphs 1, 2 and 3 of the
foregoing subdivision b, shall apply so long as the total dis-
ability shall continue, increased 50 per cent for the first six
months of such continuance, but in no case shall the increase
operate to make the monthly payment exceed 60 per cent of
716 bradbury's workmen's compensation law
Oregon
the monthly wage (the daily wage multiplied by 26) the work-
man was receiving at the time of his injury.
" (e) When the disability is or becomes partial only and is
temporary in character, the workman shall receive for a
period not exceeding two years that proportion of the pay-
ments provided for total disability which his earning power
at any kind c^f work bears to that existing at the time of the
occurrence of the injury.
"(f) Permanent partial disability means the loss of either
one arm, one hand, one foot, loss of hearing in one or both
ears, loss of one eye, one or more fingers, any dislocation
where ligaments are severed, or any other injury known in
surgery to be permanent partial disability. Where permanent
partial disability shall result from any injury, the workman
shall receive the sum of twenty-five dollars ($25) a month for
the period stated against such injury, respectively as follows:
"In case of the loss by separation of one arm at or above
the elbow joint, or the permanent and complete loss of the
use of one arm, ninety-six (96) months.
"The loss by separation of one hand at or above the wrist
joint, or the permanent and complete loss of the use of one
hand, seventy-six (76) months.
"The loss by separation of one leg, at or above the knee
joint, or the permanent and complete loss of the use of one
leg, eighty-eight (88) months.
"The loss by separation of one foot at or above the ankle
joint, or the permanent and complete loss of the use of one
foot, sixty-four (64) months.
"The permanent and complete loss of hearing in both ears,
ninety-six (96) months.
"The permanent and complete loss of hearing in one ear,
forty-eight (48) months, or, at the option of the workman,
nine hundred dollars ($900) in a lump sum.
"The permanent and complete loss of the sight of one eye
forty (40) months, or, at the option of the workman, -eight
hundred and fifty dollars ($850) in a lump sum.
"The loss by separation of a thumb twenty-four (24)
months, or, at the option of the workman, six hundred dollars
($600) in a lump sum.
DISABILITY BENEFITS 717
Oregon
"The loss by separation of a first finger, sixteen (16) months,
or, at the option of the workman, three hundred fifty dollars
($350) in a lump sum; the second finger nine (9) months, or,
at the option of the workman, two hundred dollars ($200)
in a lump sum; a third finger, eight (8) months, or, at the
option of the workman, one hundred and seventy-five dollars
($175) in a lump sum; a fourth finger, six (6) months, or, at
the option of the workman, one hundred and fifty dollars
($150) in a lump sum.
"The loss of one phalange of the thumb shall be considered
equal to the loss of one-half a thumb; the loss of one phalange
of a finger, equal to the loss of one-third of a finger, and the
loss of two phalanges of a finger, equal to the loss of one-half
a finger, and the compensation for the respective proportions
of the above period or in the respective proportions of the
above lump sum shall be payable. The loss of more than one
phalange of a thumb, or more than two phalanges of a
finger shall be considered as the loss of an entire thumb or
finger.
"The loss by separation of a great toe, ten (10) months, or,
at the option of the workman, two hundred and fifty dollars
($250) in a lump sum; any other toe, four (4) months, or,
at the option of the workman, one hundred dollars ($100) in
a lump sum.
"In all other cases of injury resulting in permanent partial
disability, the compensation shall bear such relation to the
periods stated in this clause as the disabilities bear to those
produced by the injuries named in this schedule, and pay-
ments shall be made for proportionate periods, not exceeding,
however, ninety-six (96) months, and in all such cases where
the period of payment shall not exceed twelve (12) months,
but in none other, shall the workman be entitled to a lump
sum equal to the present value of such monthly payments
computed at an interest rate of four per cent per an-
num.
"If any workman entitled to compensation on account of a
permanent disability shall have received compensation for
either temporary total disability or temporary partial dis-
ability by reason of the same injury which shall entitle him
718 bradbury's workmen's compensation law
Rhode Island
to compensation for permanent partial disability, the number
of months during which he shall be entitled to payments for
such permanent partial disability shall be reduced by the
number of monthly payments which he shall have received
on account of such temporary total disability or temporary
partial disability."
RHODE ISLAND
"Art. II, § 10. Total incapacity. While the incapacity for
work resulting from the injury is total, the employer shall
pay the injured employ^ a weekly compensation equal to
one-half his average weekly wages, earnings or salary, but
not more than ten dollars nor less than four dollars a week;
and in no case shall the period covered by such compensation
be greater than five hundred weeks from the date of the in-
jury. In the following cases it shall, for the purposes of this
section, be conclusively presumed that the injury resulted in
permanent total disability, to wit: The total and irrecoverable
loss of sight in both eyes, the loss of both feet at or above
the ankle, the loss of both hands at or above the wrist, the
loss of one hand and one foot, an injury to the spine resulting
in permanent and complete paralysis of the legs or arms, and
an injury to the skull resulting in incurable imbecility or
insanity."
"§ 11. Partial incapacity. While the incapacity for work
resulting from the injury is partial, the employer shall pay
the injured employe a weekly compensation equal to one-half
the difference between his average weekly wages, earnings, or
salary, before the injury and the average weekly wages, earn-
ings or salary which he is able to earn thereafter, but not
more than ten dollars a week; and in no case shall the period
covered by such compensation be greater than three hundred
weeks from the date of the injury."
"§ 12. Specific injuries. In case of the following specified
injuries the amounts named in this section shall be paid in
addition to all other compensation provided for in this act:
" (a) For the loss by severance of both hands at or above
DISABILITY BENEFITS 719
Rhode Island
the wrist, or both feet at or above the ankle, or the loss of
one hand and one foot, or the entire and irrecoverable loss
of the sight of both eyes, one-half of the average weekly wages,
earnings, or salary of the injured person, but not more than
ten dollars nor less than four dollars a week, for a period of
one hundred weeks.
" (b) For the loss by severance of either hand at or above
the wrist, or either foot at or above the ankle, or the entire
and irrecoverable loss of the sight of either eye, one-half the
average weekly wages, earnings or salary of the injured person,
but not more than ten dollars nor less than four dollars a
week, for a period of fifty weeks.
" (c) For the loss by severance at or above the second joint
of two or more fingers, including thumbs, or toes, one-half
the average weekly wages, earnings or salary of the injured
person but not more than ten dollars nor less than four dollars
a week, for a period of twenty-five weeks.
"(d) For the loss by severance of at least one phalange
of a finger, thumb, or toe, one-half the average weekly wages,
earnings or salary of the injured person, but not more than
ten dollars nor less than four dollars a week, for a period of
twelve weeks."
"§ 14. No savings or insurance of the injured employ^,
independent of this act, shall be taken into consideration in
determining the compensation to be paid hereunder, nor shall
benefits derived from any other source than the employer
be considered in fixing the compensation under this act. Any
employer who shall refuse or delay payment under this act on
account of the receipt by any injured employe1 of such sav-
ings, insurance or benefits, shall be deemed guilty of a mis-
demeanor, and on conviction thereof shall be liable to a fine
of not less than one hundred dollars nor more than five hun-
dred dollars, or imprisonment not exceeding one year or both."
(As am'd by L. 1913, approved April 29, 1913, in effect same
date.)
720 bradbury's workmen's compensation law
Texas
TEXAS
"Part I, § 10. While the incapacity for work resulting from
the injury is total, the association shall pay the injured em-
ployee a compensation equal to 60 per cent of his average
weekly wages but not more than fifteen dollars, nor less than
$5.00 a week, and in no case shall the period covered by such
compensation be greater than four hundred weeks.
"§ 11. While the incapacity for work resulting from the
injury is partial, the association shall pay the injured em-
ployee a weekly compensation equal to 60 per cent of the
difference between his average weekly wages before the injury
and the average weekly wages he is able to earn thereafter,
but in no case to be more than $15 a week; and the period
covered by such compensation to be in no case greater than
three hundred weeks.
" § 12. In case of the following specified injuries the amounts
hereinafter named shall be paid by the association in addition
to all other compensation:
" (a) For the loss by severance of both hands, at or above
the wrists, or of both feet at or above the ankle, or the loss
of one hand and one foot, or the reduction of one-tenth of
the normal vision in both eyes, 60 per cent of the average
weekly wages of the injured employee, but not more than
fifteen dollars nor less than five dollars a week for a period of
one hundred weeks, (b) For the loss by severance of either
hand at or above the wrist, or either foot above the ankle,
or the reduction to one-tenth of normal vision in either eye,
60 per cent of the average weekly wages of the injured em-
ployee, but not more than $15 nor less than $5 a week, for
a period of fifty weeks, (c) For the loss by severance at or
above the second joint of two or more fingers, including
thumbs and toes, 60 per cent of the average weekly wages
of the injured employee, but not more than $15 nor less than
$5.00 a week, for a period of twenty-five weeks, (d) For the
loss by severance of at least one joint of a finger, thumb or
toe, 60 per cent of the average weekly wages of the injured
DISABILITY BENEFITS 721
Washington
employee, but not more than fifteen' dollars nor less than
five dollars a week, for a period of twelve weeks.
WASHINGTON
" § 5. * * * (6) Permanent total disability means the
loss of both legs or both arms, or one leg and one arm, total
loss of eyesight, paralysis or other conditions permanently
incapacitating the workman from performing any work at
any gainful occupation.
"When permanent total disability results from the injury
the workman shall receive monthly during the period of such
disability:
" (1) If unmarried at the time of the injury, the sum of
twenty dollars ($20).
" (2) If the workman have a wife or invalid husband, but
no child under the age of sixteen years, the sum of twenty-
five dollars ($25). If the husband is not an invalid, the
monthly payment of twenty-five dollars ($25) shall be reduced
to fifteen dollars ($15).
" (3) If the workman have a wife or husband and a child or
children under the age of sixteen years, or, being a widow
or widower, have any such child or children, the monthly
payment provided in the preceding paragraph shall be in-
creased by five dollars ($5) for each such child until such child
shall arrive at the age of sixteen years, but the total monthly
payment shall not exceed thirty-five dollars ($35).
"(c) If the injured workman die during the period of
permanent total disability, whatever the cause of death,
leaving a widow, invalid widower or child under the age of
sixteen years, the surviving widow or invalid widower shall
receive twenty dollars ($20) per month until death or re-
marriage, to be increased five dollars per month for each child
under the age of sixteen years until such child shall arrive
at the age of sixteen years; but if such child is or shall be
without father or mother, such child shall receive ten dollars
($10) per month until arriving at the age of sixteen years.
The total combined monthly payment under this paragraph
46
722 bradbury's workmen's compensation law
Washington
shall in no case exceed thirty-five dollars ($35). Upon remar-
riage the payments on aocount of a child or children shall con-
tinue as before to the child or children.
"(d) When the total disability is only temporary, the
schedule of payment contained in paragraphs (1), (2), and
(3), of the foregoing subdivision (b) shall apply so long as
the total disability shall continue, increased fifty per cent,
for the first sfx months of such continuance, but in no case
shall the increase operate to make the monthly payment
exceed sixty per cent, of the monthly wage (the daily wage
multiplied by twenty-six) the workman was receiving at the
time of his injury. As soon as recovery is so complete that
the present earning power of the workman, at any kind of
work, is restored to that existing at the time of the occur-
rence of the injury the payments shall cease. If and so long
as the present earning power is only partially restored the
payments shall continue in the proportion which the new
earning power shall bear to the old. No compensation shall
be payable out of the accident fund unless the loss of earning
power shall exceed five per cent." (Subdivision "E" relates
to reserves. See Chapter XXVIII.)
" (f) Permanent partial disability means the loss of either
one foot, one leg, one hand, one arm, one eye, one or more
fingers, one or more toes, any dislocation where ligaments
are severed, or any other injury known in surgery to be
permanent partial disability. For any permanent partial
disability resulting from an injury the workman shall re-
ceive compensation in a lump sum in an amount equal to
the extent of the injury, to be decided in the first instance by
the department, but not in any case to exceed the sum of
fifteen hundred dollars ($1500). The loss of one major arm at
or above the elbow shall be deemed the maximum permanent
partial disability. Compensation for any other permanent
partial disability shall be in the proportion which the extent
of such disability shall bear to the said maximum. If the
injured workman be under the age of twenty-one years and
unmarried, the parents or parent shall also receive a lump
sum payment equal to ten per cent, of the amount awarded
the minor workman.
DISABILITY BENEFITS 723
West Virginia
"(g) Should a further accident occur to a workman al-
ready receiving a monthly payment under this section for
a temporary disability, or who has been previously the re-
cipient of a lump sum payment under this act, his future
compensation shall be adjusted according to the other pro-
visions of this section and with regard to the combined effect
of his injuries, and his past receipt of money under this act.
"(h) If aggravation, diminution, or termination of dis-
ability takes place or be discovered after the rate of compen-
sation shall have been established or compensation termi-
nated in any case the department may, upon the application
of the beneficiary or upon its own motion, readjust for future
application the rate of compensation in accordance with the
rules in this section, provided for the same, or in a proper
case terminate the payments." (As am'd by L. 1913, c — ,'
approved and in effect March 21, 1913.)
WEST VIRGINIA
"§31. In case of temporary or partial disability, the
employe shall receive during the continuance thereof fifty
per cent of the impairment of his earning capacity, not to
exceed a maximum of eight dollars per week, nor to be less
than a minimum of four dollars per week, for not to exceed a
period of twenty-six weeks; provided, that if such partial
disability consist of the loss of an arm or leg at or above the
wrist in one case or the ankle in the other, or the loss of an
eye, the period for which compensation shall be paid may be,
but shall not exceed, one hundred and fifty-six weeks.
" § 32. In case of permanent total disability the award
shall be fifty per cent of the average weekly wage, and shall
continue until the death of such person so totally disabled,
but not to exceed a maximum of six dollars per week nor to
be less than a minimum of three dollars per week."
"§ 38. Payments may be made in such periodical install-
ments as may seem best to the commission in each case.
Notwithstanding anything herein contained, the commission
may direct the repayment of and pay out of any installment
724 bradbury's workmen's compensation law
Wisconsin
any advances for necessaries that may have been made by
any person pending the payment of such installment."
WISCONSIN *
"§ 2394-9.* Where liability for compensation under sec-
tions 2394-3 to 2394-31, inclusive, exists, the same shall be
as provided in the following schedule:
" (1) Such medical, surgical and hospital treatment, medi-
cines, medical and surgical supplies, crutches, and apparatus,
as may be reasonably required at the time of the injury and
thereafter during the disability, but not exceeding ninety
days, to cure and relieve from the effects of the injury, the
same to be provided by the employer; and in case of his neg-
lect or refusal seasonably to do so, the employer to be liable
for the reasonable expense incurred by or on behalf of the em-
ployee, in providing the same.
" (2) If the accident causes disability, and indemnity which
shall be payable as wages on the eighth day after the injured
employee leaves work as the result of the injury, and weekly
thereafter, which weekly indemnity shall be as follows:
"(a) If the accident causes total disability, sixty-five per
cent of the average weekly earnings during the period of such
total disability; provided that, if the disability is such as not
only to render the injured employee entirely incapable of
work, but also so helpless as to require the assistance of a
nurse, the weekly indemnity during the period of such assist-
ance after the first ninety days shall be increased to one hun-
dred per cent of the average weekly earnings.
"(b) If the accident causes partial disability, sixty-five
per cent of the weekly loss in wages during the period of such
partial disability.
"(c) If the disability caused by the accident is at times
total and at times partial, the weekly indemnity during the
1A number of Wisconsin cases will be found cited in the discussion
under topical headings preceding the specific statutory provisions in this
chapter.
DISABILITY BENEFITS 725
Wisconsin
periods of each such total or partial disability shall be in ac-
cordance with said subdivisions (a) and (b), respectively.
"(d) Said subdivisions (a), (b) and (c) shall be subject to
the following limitations:
"In case of temporary or partial disability aggregate in-
demnity for injury to a single employee caused by a single
accident shall not exceed four times the average annual earn-
ings of such employee, and in case of permanent total dis-
ability aggregate indemnity for injury to a single employee
caused by a single accident shall not exceed six times the
average annual earnings of such employee.
"Total blindness of both eyes, or the loss of both arms at or
near the shoulder, or of both legs at or near the hip, or of one
arm at the shoulder and one leg at the hip, shall constitute per-
manent total disability. This enumeration shall not be ex-
clusive but in other cases the commission shall find the
facts.
"The aggregate disability period shall not, in any event,
extend beyond fifteen years from the date of the accident.
"The weekly indemnity due on the eighth day after the
employee leaves work as the result of the injury may be
withheld until the twenty-ninth day after he so leaves work;
if recovery from the disability shall then have occurred, such
first weekly indemnity shall not be recoverable; if the dis-
ability still continues, it shall be added to the weekly indem-
nity due on said twenty-ninth day and be paid therewith.
" If the period of disability does not last more than one week
from the day the employee leaves work as the result of the in-
jury, no indemnity whatever shall be recoverable.
" (5) In cases included by the following schedule, the com-
pensation to be paid, subject to the provisions of this act for
maximum and minimum payments, shall be sixty-five per
cent of the average weekly earnings of the employee for the
periods named in the schedule, to wit:
"The loss of one arm at or near the shoulder, 240 weeks;
"The loss of an arm at the elbow, 200 weeks;
"The loss of a forearm at the lower half thereof, 160 weeks;
"The loss of a hand, 160 weeks;
"The loss of a palm where the thumb remains, 80 weeks;
726 bradbury's workmen's compensation law
Wisconsin
"The loss of a thumb and the metacarpal bone thereof, 60
weeks;
"The loss of a thumb at the proximal joint, 40 weeks;
"The loss of a thumb at the second or distal joint, 20
weeks;
"The loss of an index finger and the metacarpal bone
thereof, 30 weeks;
"The loss of an index finger at the proximal joint, 20 weeks;
"The loss of an index finger at the second joint, 15 weeks;
"The loss of an index finger at the distal joint, 10 weeks;
"The loss of a second finger and the metacarpal bone
thereof, 20 weeks;
"The loss of a middle finger at the proximal joint, 15 weeks;
"The loss of a middle finger at the second joint, 10 weeks;
"The loss of a middle finger at the distal joint, 5 weeks;
"The loss of a third or ring finger and the metacarpal bone
thereof, 12 weeks;
"The loss of a ring finger at the proximal joint, 8 weeks;
"The loss of a ring finger at the second joint, 6 weeks;
"The loss of a ring finger at the distal joint, 4 weeks;
"The loss of a little finger and the metacarpal bone thereof,
15 weeks;
"The loss of a little finger at the proximal joint, 10 weeks;
"The loss of a little finger at the second joint, 8 weeks;
"The loss of a little finger at the distal joint, 4 weeks;
" The loss of all the fingers of one hand where the thumb
and palm remain, 60 weeks;
"The loss of a leg at the hip joint, or so near thereto as
to preclude the use of an artificial limb, 240 weeks;
"The loss of a leg at or above the knee, where stump re-
mains sufficient to permit the use of an artificial limb, 160
weeks;
"The loss of a foot at the ankle, 120 weeks;
"The loss of a great toe with the metatarsal bone thereof,
30 weeks;
"The loss of a great toe at the proximal joint, 20 weeks;
"The loss of a great toe at the second joint, 10 weeks;
"The loss of any other toe with the metatarsal bone thereof
12 weeks;
DISABILITY BENEFITS 727
Wisconsin
"The loss of any other toe at the proximal joint, 4 weeks;
"The loss of any other toe at the second or distal joint, 4
weeks;
"The loss of all the toes of one foot, 40 weeks;
"The loss of an eye by enucleation, 160 weeks;
"The loss of the second eye, by enucleation, 320 weeks;
"Total blindness of one eye, 120 weeks;
"Total blindness of the second eye, 240 weeks;
"Total deafness of both ears, 160 weeks;
"Total deafness of one ear, 40 weeks;
" Total deafness of the second ear, 120 weeks.
"When by reason of infection or other cause not due to the
neglect or misconduct of the injured employee, he is actually
disabled longer than the time specified in the foregoing sched-
ule from earning a wage, compensation shall be paid such em-
ployee for such loss of wage within the limits otherwise pro-
vided.
"For the purposes of this schedule permanent and com-
plete paralysis of any member shall be deemed equivalent to
the loss thereof.
"Whenever an amputation is made between any two joints
mentioned in this schedule (except amputations between the
knee and hip joint) the resultant loss shall be estimated as if
the amputation had been made at the joint nearest thereto.
" In all other cases in this class the compensation shall bear
such relation to the amount stated in the above schedule as
the disabilities bear to those produced by the injuries named
in the schedule.
" If an employee is seriously permanently disfigured about
the face or head, the commission may allow such sum for
compensation on account thereof, as it may deem just, not
exceeding $750.
"In case of permanent injury to an employee who is over
fifty-five years of age, the compensation herein shall be re-
duced by 5 per cent; in case he is over sixty years of age, by
10 per cent; in case he is over sixty-five years of age, by
15 per cent.
" (a) Where injury is caused by the failure of the employer
to comply with any statute of the state or any lawful order of
728 bbadbuky's workmen's compensation law
Wisconsin
the industrial commission, compensation as provided in sec-
tions 2394-3 to 2394-31, inclusive, shall be increased fifteen
per cent.
"(6) Where injury is caused by the wilful failure of the
employee to use safety devices where provided by the em-
ployer, or
" (c) WhereJnjury results from the employee's wilful failure
to obey any reasonable rule adopted by the employer for the
safety of the employee, or
" (d) Where injury results from the intoxication of the em-
ployee, the compensation provided herein shall be reduced
fifteen per cent."
For compensation where an employe has suffered a pre-
vious injury see § 2394-10 subd. 1, (d).
CHAPTER XIII
WAGES WHICH ARE THE BASIS OF COMPENSA-
TION
ARTICLE A— Introduction
Page
1. In genekal 730
2. Actual earnings not
"usual" wages paid
in that employment.
3. Absence of agreement
as to rate of wages.
4. Basis of compensation
when workman em-
ployed in different
GRADES
5. Longshoremen employed
by several employers 733
6. Adding compensation
from all sources, in-
cluding rent, etc . . . 735
7. "Tips" as part of earn-
ings 738
8. Intermittent employ-
ment due to strikes
and other causes. . . . 739
9. Employment for less
than a week 742
Page
. 730
730
731
731
10. Change in rate op wages
during year 742
11. Father dependent of
son; allowance for
son's maintenance . . . 743
12. Compensation for pre-
vious injury not in-
cluded in determining
basis of compensation
for subsequent injury
causing death 744
13. Deducting poor-law be-
lief RECEIVED BY DE-
PENDENT 744
14. Deducting wages paid
to an assistant in
computing compensa-
tion 745
15. Wages paid seaman un-
der shipping act tak-
en INTO ACCOUNT IN
AWARDING COMPENSA-
TION 745
Article B — Specific Provisions of Various Statutes, with
Notes 746
Page
Arizona 746
California 746
Connecticut 748
Illinois 748
Iowa 750
Kansas 751
Maryland 752
Massachusetts 753
Michigan 754
Minnesota 756
729
730 bbadbuky's workmen's compensation law
Actual earnings not "usual" wages paid in that employment
Page Page
Nebraska 757 Oregon 761
Nevada 757 Rhode Island 761
New Hampshire 757 Texas 763
New Jersey 758 Washington 763
New York 759 West Virginia 763
Ohio 760 Wisconsin 764
ARTICLE A— INTRODUCTION
1. In general.
Some of the statutes contain minute directions as to
the manner of arriving at the "average" wages or earn-
ings, which are to form the basis of the compensation pay-
ments. Others contain no specifications whatsoever on
this point.
It is obvious that the different provisions of the various
acts afford much opportunity for judicial construction
and interpretation. The cases cited hereinafter show the
general rules of construction which have been adopted by
the courts in the decisions thus far made. Further de-
cisions will be found in the notes to the particular statutory
provisions in Article B of this Chapter.
2. Actual earnings not " usual " wages paid in that em-
ployment.1
The weekly earnings of an injured workman are what
he has earned in that employment and not the ordinary
standard weekly wage earned by others engaged in a similar
occupation. Bartlett v. Tutton & Sons (1901), 85 L. T. 531;
4 W. C. C. 133. An arbitrator found that casual ship-
wrights (though the standard union rate of wages for both
permanent and casual shipwrights is the same per day),
are not in the same grade as regular shipwrights, and that
the average earnings of the former are much less than the
1 See cases cited in note under titles Massachusetts and Ohio in Article
B of this Chapter.
WAGES WHICH ARE THE BASIS OF COMPENSATION 731
. Basis of compensation when workman employed in different grades
latter. He further found that the weekly earnings of a
casual shipwright at the place in question, had for the past
twelve months, averaged 30s. and gave compensation to
the dependents of a casual shipwright on this basis. This
ruling was sustained on appeal. Cain v. Leyland & Co.
(1906), 1 B. W. C. C. 368. Where a workman was paid
by the hour and earned £1, 18s. Qd. from December 13 to
December 20, and £1, 4s. Qd. from December 20 to Decem-
ber 27 (Christmas week) it was held that the average of
the two weeks must be taken in arriving at the basis of
compensation. Faircloth v. Waring & Gillow (1906),
8 W. C. C. 99.
3. Absence of agreement as to rate of wages.
Where no rate of wages has been expressly stipulated for
and no payment made, an agreement may be implied for
the usual rate of wages for that particular class of work,
in that locality at that time. Jones v. Walker (1899),
1 W. C. C. 142.
Under the New Jersey Act it has been held that where
a man worked only one day and there was no agreement
as to wages that he was entitled to the niinimum, at least,
of $5 a week, as compensation. Mueller v. Oelkers Mfg.
Co., (Essex Common Pleas, Feb. 1913), 36 N. J. Law J. 117.
4. Basis of compensation when workman employed in
different grades.
A workman was employed by the same employer for
some time as a boilermaker and for some time as a laborer,
and he met with an accident when employed as a laborer.
The arbitrator, in calculating his average weekly earnings
took into account the amount which the workman had
earned as a boilermaker and awarded him compensation
on the average wage thus ascertained. It was held that
the compensation must be based on the wages the work-
man was earning in the grade of employment in which he
732 bradbury's workmen's compensation law"
Basis of compensation when workman employed in different grades •
met with the accident and that it was error for the arbi-
trator to reckon the man's wages as a boilermaker. Babcock
& Wilcox v. Young (1911), 48 Scotch L. R. 298; 4. B. W.
C. C. 367. Same principle, Perry v. Wright (1908), 98
L. T. 327; 1 B. W. C. C. 351. In the last-mentioned case
the principle was established where a man changes from
one grade of \«>rk to another that "any step up or step
down from one grade to another is to be regarded as com-
mencing a fresh employment," in computing the wages
upon which compensation is to be based.1
An arbitrator found that no definite grades existed among
casual dock laborers, but that the men formed themselves
into grades of good and bad workmen, the good earning
about 30s. a week and the bad about 15s. a week, and that
the workman whose compensation was in question be-
longed to the latter class. On appeal it was held that this
was a misdirection as to the meaning of the word "grade."
It was held that the word does not involve or depend upon
individual characteristics, and that good and bad work-
men are not two grades. The case was remitted to an ar-
bitrator to determine whether casual dock laborers form
a distinct grade in the hierarchy of labor, and if so what
are the average wages of the grade. Perry v. Wright; Cain
v. Leyland & Co.; Bailey v. Kenworthy; Gough v. Crawshay
Brothers (1907), 98 L. T. 327; 1 B. W. C. C. 351.
A workman, after injury for which he was paid com-
pensation, resumed work in a different department, at
a lower wage. He was killed in this latter employment,
and the compensation was assessed on the wages of the
employment in which he was engaged when he was killed.
The Court of Appeal held that the question was one of
fact for the County Court judge, and as there was evi-
dence to support it, the court could not interfere with
the decision. The decision was made on the ground that
1 See cases cited in note under title Massachusetts in Article B of this
Chapter, page 753.
WAGES WHICH ARE THE BASIS OF COMPENSATION 733
Longshoremen employed by several employers
there had been a break in the continuity of the employ-
ment of the workman and compensation was therefore
assessed upon the basis of the earnings of the man in the
second employment. Williams v. The Wynnstay Collieries
(1910), 3. B. W. C. C. 473.
5. Longshoremen employed by several employers.
Where a longshoreman was employed by various em-
ployers and was injured, it was held that the average
weekly wages should be determined by adding the amount
received from all employers during the week and not merely
the amount received from the employer for whom he was
working while injured. Gillen v. Ocean Accident & Guar-
antee Corporation,1 Mass. ; 102 N. E. Rep. 346.
1 In the case cited in the text the court said :
Rtjgg, C. J. This is an appeal under the Workmen's Compensation
Act. St. 1911, c. 751. The employe^ a longshoreman, was injured in
the course of his employment by the Canada, Atlantic and Plant Steam-
ship Company, which was insured under the act with the insurer. The
facts are that the steamship company operates a line between Boston and
Halifax, one boat in winter and two boats in summer, arriving at and
leaving Boston each week. The longshoremen in its employ work on an
average for fifteen to twenty hours weekly, and receive from it not more
than $8 a week. The employe^ like other longshoremen, worked for
other employers during a day or group of days, and earned by the year by
his services an average weekly wage of $13, which was the average weekly
wage earned by other longshoremen in the same class of employment in
the same district. The insurer contends that the employe was not a
regular employe' of the steamship company, and that his average weekly
wages must be the average amount per week which during the twelve
months previous to the injury was being earned by a person in the same
grade, employed at the same work by the same employer. If this conten-
tion is sound, the employ^ would be entitled to $4 per week. The em-
ploy6 contends, however, that, inasmuch as he worked continually at his
occupation as longshoreman for different employers according to the
custom of his craft, he is entitled to receive $6.50, being one-half his
average weekly earnings as longshoreman from all sources.
"The decision depends upon the meaning of 'average weekly wages'
and the method of their ascertainment as set out in Part V, § 2 of the
act. 'Average weekly wages' are there denned to mean 'earnings of the
734 bbadbury's workmen's compensation law
Longshoremen employed by several employers
See also the case of Bonaldi v. Hamburg Am. Line, 36
N. J. Law J. 302, cited in a note to the New Jersey statute
in Article B of this Chapter.
injured employe1 during the period of twelve calendar months immediately
preceding the date of injury, divided by fifty-two; but if the injured em-
ploye1 lost more thaw two weeks' time during such period then the earnings
for the remainder of such twelve calendar months shall be divided by the
number of weeks remaining after the time so lost has been deducted.'
It is apparent both from its phrase and its context that this sentence ap-
plies to a continuous employment throughout the year. While the lan-
guage is not amplified, it refers to substantially uninterrupted work in a
particular employment from which the wages of the employe1 are derived.
The basis is the earning capacity of the workman as shown by such em-
ployment. The next clause of the section is, 'Where, by reason of the
shortness of the time during which the employe1 has been in the employ-
ment of his employer, or the nature or terms of the employment, it is im-
practicable to compute the average weekly wages, as above defined, regard
may be had to the average weekly amount which, during the twelve
months previous to the injury, was being earned by a person in the same
grade employed at the same work by the same employer.' This clause
provides a method for the determination of average weekly wages where
the employe1 for the reasons stated has not been in the service for a year,
by reference to the wages of others whose employment is substantially
continuous. It affords a guide by which to estimate the compensation to
be paid to the employ6 where there are those in the service of the same
employer continuously employed in the same grade at the same kind of
work. It is apparent that this clause does not cover the employe's case,
because there is no substantially continuous employment of longshoremen
by this steamship company during the year. It is obvious from the
broad scope of the act and its comprehensive dealing with the whole sub-
ject that it was intended to provide for the employe1 as compensation
within the limits specified therein a definite proportion of the amount
which he earned weekly. It cannot be presumed that the Legislature
intended to offer a scheme of accident insurance which would be illusory
or barren to large numbers of workmen. 'Weekly wages' as used in the
first sentence quoted above plainly means all the wages which the employe1
receives in the course of a permanent employment, which are all the wages
he receives. Where words are used in one part of a statute in a definite
sense it may be presumed, in the absence of a plain intent to the contrary,
that they are used in the same sense in other places in the same act. There-
fore, we reach the conclusion that average weekly wages as used in the
WAGES WHICH ARE THE BASIS OF COMPENSATION 735
Adding compensation from all sources, including rent, etc.
6. Adding compensation from all sources, including rent,
etc.1
A stoker on a merchant vessel was also a stoker in the
Naval Reserve and his position in the Naval Reserve en-
clause of the act last quoted was not intended to apply to recurrent periods
of brief service at regular intervals, in cases where the entire time of the
workmen is devoted to like employment for other employers in the same
general kind of business. The final clause of the paragraph defining aver-
age weekly wages is as follows: 'or, if there is no person so employed, by a
person in the same grade employed in the same class of employment and
in the same district.' This clause affords reference to a general average
of like employment in the neighborhood as a standard to be considered.
It does not restrict consideration of the matter to the same employer. It
applies to a case like the present, where the custom of the employment is
for continuous work of a specified kind for different employers.
" While the language of the definition is not so clear as might be desired,
it seems to us to be intended to include in abridged form parts of (1) (6)
and (2) (a) and (6) of the first schedule of the English Workmen's Compen-
sation Act, 6 Edw. VII (1906), c. 58. It is true that (2) (6) of the English
schedule covers a case like the present in express language. But the Eng-
lish act is more minute in many of its provisions, and our act resembles the
present English act far more closely than it does the earlier one of St. 60 &
61 Vict., c. 37. Although not stated in precise words, we think that the
general import of the act is to base the remuneration to be paid upon the
normal return received by workmen for the grade of work in which the
particular workman may be classified. This is the case where it is 'im-
practicable' to reach a result which shall be fair to the workman to the
extent intended by the act of giving him compensation for average weekly
earnings in any other way than by following the course pointed out in the
final clause of the definition. See Ferry v. Wright (1908), 1 K. B. 441;
Anslow v. Cannock, Chase Colliery Co. (1909), 1 K. B. 352; S. G. (1909)
A. C. 435.
"This is not a case where the usual employment of the employe' is only
two br three days in the week as pointed out in White v. Wiseman (1912),
3 K. B. 352, 359, but a case where the condition of the workman is con-
tinuous labor in regular employment with different employers. The loss
1 See note to title Massachusetts, in Article B of this Chapter, at
page 753.
"" Pensions from the U. S. Government are not considered. Re Harriet
H. Horn, Claim No. 1013, Ohio St. Lia. Bd. Awd. Dec. 23, 1912.
736 bradbury's workmen's compensation law
Adding compensation from all sources, including rent, etc.
titled him to draw £6 a year. He met with an accident
which disabled him from work, and it was held that in
estimating the average weekly earnings, the sum which he
received as stoker in the Naval Reserve must be added
to the wages received by him as a stoker in the merchant
service. Brandy v. Owners of S. S. "Raphael" (1910),
4 B. W. C. C*6, aff'd by House of Lords (1911), 4 B. W.
C. C. 307.
The remuneration of a ship's steward who was drowned
was found by the County Court judge to be £232. He
was entitled, in addition, to "extra wages," which, how-
ever, only became payable on the happening of certain
events, which had in fact happened, and also to profits
on the sale of whiskey. The employers contended that
such extra payments should be taken into consideration
and that if they amounted to more than £18 the total
remuneration would exceed £250, in which case the de-
pendents would be excluded from the benefits of the Act.
The County Court judge declined to take such sums into
consideration and awarded compensation. It was held
on appeal to the Court of Appeal of England that such
extra payments must be taken into consideration and
that the case must go back to the County Court judge
to ascertain, the best way he could, their value. Skailes v.
Blue Anchor Line (1910), 4. B. W. C. C. 16.
In estimating the compensation to which the dependents
of a workman killed by accident are entitled when such
workman has worked continuously for three years for the
same employer, no account can be taken of the wages
earned by him under concurrent contracts with other em-
ployers. Buckley v. London & India Docks (1909), 127
L. T. J. 521; 2 B. W. C. C. 327.
The value of clothing received as part of the emolu-
of his capacity to earn, as demonstrated by his conduct in such regular
employment, is the basis upon which his compensation should be based.
Decree affirmed."
WAGES WHICH ARE THE BASIS OF COMPENSATION 737
Adding compensation from all sources, including rent, etc.
ments of service is part of the workman's (railway guard)
earnings. Great Northern Ry. Co. v. Dawson (1905), 92
L. T. 145; 7 W. C. C. 114. Where a seaman in claiming
compensation added the amount of his wages to the amount
it would cost him for food and lodging, and his employers
contended that the food did actually cost considerably
less than the amount claimed by the seaman, it was held
in upholding an award of the County Court judge that
the proper amount in this case was the wages plus the
actual cost to the employer of the food and lodging. It
was stated further that the cost of food and lodging to the
employer is not in every case the test of the value of the
same to the workman, where compensation is claimed.
Rosenquist v. Bowing & Co. (1908), 98 L. T. 773; 1 B. W.
C. C. 395. Where a seaman receives wages and food as
part of his remuneration, the test in ascertaining the amount
of his average wages is not what he saved by receiving the
food, but what was the actual worth to him of the reason-
able food supplied by the employers. Dothie v. MacAndrew
& Co. (1908), 98 L. T. 495; 1 B. W. C. C. 308. Deductions
from wages for articles supplied which are part of the
necessary equipment of a workman form part of his earn-
ings. Abram Coal Co. v. Southern (1903), 5 W. C. C. 125.
Occasional and fixed allowances for board and lodging,
when away from home, are included in earnings. Sharpe
v. Midland Ry. Co. (1903), 88 L. T. 545; 5 W. C. C. 128,
aff'd, Midland Ry. Co. v. Sharpe (1904), 6 W. C. C. 119.
Deductions from wages for things supplied to a workman
necessary for the performance of his work, for example,
lamp oil supplied to a miner, do not reduce the amount
of his earnings. Houghton v. Sutton Heath and Lea Green
Collieries Co. (1900), 3 W. C. C. 173.
The rent of a cottage belonging to the employer and
occupied by the workman, may properly be deducted
from the amount of compensation awarded under an agree-
ment between the employer and employed Brown v. The
47
738 bradbury's workmen's compensation law
"Tips" as part of earnings
South Eastern & Chatham Railway Co.'s Managing Com-
mittee (1910), 3 B. W. C. C. 428.
Regular employment at a fixed wage on two fixed nights
in each week is continuous employment for the purpose
of determining the number of weeks for which the weekly
earnings are to be averaged. If, in addition to such fixed
wage, other \jjages are earned from the same employer
for irregular and uncertain employment, these wages are
not to be taken into account in calculating the average
weekly earnings. Hathaway v. Argus Printing Co. (1900),
3 W. C. C. 177.
An applicant was injured at a laundry where she earned
7s. a week. She also received from another person 3s. a
week for teaching children to play the piano at their own
home, where she went for that purpose every Saturday.
The County Court judge found that the applicant's ar-
rangement for teaching the piano was not a "contract
of service," and that therefore the applicant had not entered
into concurrent contracts of service within the meaning
of Schedule I (2) (b), and he awarded the applicant compen-
sation on the basis of 7s. a week received for work at the
laundry. It was held on appeal that the question whether
the applicant, in her arrangement for teaching the piano,
was a workman under a contract of service was a ques-
tion of fact. There is a dictum in the same case that an
usher in a private school, or a teacher, or a nursery gov-
erness, would, under ordinary circumstances, be entitled
to claim the benefit of the Act. Simmons v. The Heath
Laundry Co. (1910), 102 L. T. R. 210; 3 B. W. C. C. 200.
7. " Tips " as part of earnings.
In calculating a workman's average weekly earnings,
where the evidence is that he habitually received certain
tips to the knowledge of his employers it was held that
the court was entitled to take these tips into considera-
tion, although they were given for services outside his
WAGES WHICH AKE THE BASIS OF COMPENSATION 739
Intermittent employment due to strikes and other causes
ordinary employment. Knott v. Tingle Jacobs & Co. (1910),
4 B. W. C. C. 55.
A man in respect of whose death compensation was
claimed, had been employed as a waiter on a dining car.
In addition to his pay and meals he received from the
railway company gratuities or tips from passengers aver-
aging from 10s. to 12s. a week. It was held that the tips
were part of the earnings of the deceased. Penn v. Spiers
& Pond (1908), 1 B. W. C. C. 401.
8. Intermittent employment due to strikes and other
causes.1
Intervals from work not amounting to a break in the
employment should not be excluded in calculating average
weekly earnings. If a man has been employed for twelve
months, but has taken odd weeks off, the total amount
of his earnings should be divided by fifty-two in order to
calculate his average weekly earnings. Keast v. The Barrow
Haematite Steel Co. (1899), 1 W. C. C. 99. If there has
been a break in the employment, for example, a strike,
during the previous twelve months, the period of calcula-
tion in assessing the average weekly earnings is the period
of the new employment. The test of whether there has
been a break in the employment is whether the relation-
ship of master and servant has been continuous or not; a
mere interval in the time the contract of service or work
is running is not sufficient. Jones v. Ocean Coal Co. (1899),
80 L. T. 582; 1 W. C. C. 94. Where there is a break in
the employment, which amounts to a determination of
the old employment, the period over which the average
weekly earnings should be assessed is that immediately
preceding the injury. Appleby v. The Horseley Co. &
Lovatt (1899), 80 L. T. 853; 1 W. C. C. 103. If a man is
away from work for eleven weeks and returns without
1 See notes under titles Massachusetts, Michigan, New Jersey and
Ohio in Article B in this Chapter.
740 bradbury's workmen's compensation law
Intermittent employment due to strikes and other causes
any fresh engagement, having left his tools on the job,
there is evidence of a break in the employment. Hewlett
v. Hepburn, 2 W. C. C. 123. Where during the twelve
months prior to the accident the mills, in which the appli-
cant worked, had been on short time owing to slackness
of trade, and the applicant had not always worked a full
week, it was lield that she was entitled to the average
weekly earnings which she had actually earned during the
preceding twelve months. Kelly v. York Street Flax Spin-
ning Co. (1909), 43 Irish L. T. J. 81; 2 B. W. C. C. 493.
In the last-mentioned case it appeared that in previous
years the applicant had worked and earned more than she
had during the last twelve months, but the larger earnings
were not taken into consideration in fixing the compen-
sation.
In ascertaining the average weekly earnings of a work-
man, the recognized and known incidents of his employ-
ment must be taken into consideration. Therefore where
the injured workman was retained in the employment
during the whole year, but owing to the fact that the work
was discontinuous, he could not have worked for more
than thirty-six weeks during the twelve months preceding
the accident, fourteen weeks having been taken up by
stoppages in the ordinary course of work, and two weeks
being recognized holidays, and he did not in fact work for
more than thirty-three weeks, it was held that the basis
of the compensation was 33/52 of his earnings during the
thirty-three weeks he had actually worked. (House of
Lords), Anshw v. Cannock Chase Colliery Co. (1909), 100
L. T. 786; 2 B. W. C. C. 365. As to the method of arriving at
the average weekly earnings of a workman, Motjlton, L. J.,
said in the case of -Perry v. Wright (1907), 98 L. T. 327;
1 B. W. C. C. 351, at page 356 of the last-mentioned report:
"The object of the schedule is to arrive at a fair esti-
mate of what the workman was earning at the date of the
accident. But to regard this as rigidly determined by the
I
WAGES WHICH ARE THE BASIS OF COMPENSATION 741
Intermittent employment due to strikes and other causes
rate at which he was earning remuneration at the precise
moment of the accident would be to adopt a principle
which would often lead to unfair results. The remunera-
tion which the workman was earning at that particular
moment might be abnormally exaggerated or diminished
by reason of temporary and exceptional causes which would
make it an inaccurate measure of the workman's normal
earnings. The legislature, therefore, by the use of the
word 'average' indicates that the rate of remuneration is
to be arrived at by taking into consideration the earnings
during an adequate length of time previous and up to
the time of the accident for the purpose of obtaining the
average remuneration during that period, rightly deem-
ing that this will more fairly represent the rate of remuner-
ation which the workman was then receiving than would
any method of estimating the rate of remuneration solely
based on the state of circumstances prevailing at the pre-
cise moment of the accident." The learned judge then
discusses the provisions of the British Compensation Act
which are not entirely the same as those found in the acts
of the different States, and lays down the principle that
where a certain length of time is taken in computing the
average wage that the weeks when there was an enforced
idleness by reason of holidays or breakage in machinery,
ought to be considered as part of the time employed even
though the workman did not receive anything for that
time and the average wage reduced accordingly.
An employe had worked for the same employer more
than twelve months. The total of his wages for the twelve
months before the accident were £83, 2s., Id., but during
the year there had been stoppages:
1st. In consequence of a canal having burst;
2d. During the wake week;
3d. By reason of accidents to machinery;
4th. On bank holidays.
The arbitrator divided the total sum earned by fifty-
742 Bradbury's workmen's compensation law
Change in rate of wages during year
two for the purpose of arriving at the average weekly earn-
ings of the workman in question. It was held on appeal
that this was error and that the same should have been
divided by the number of weeks or parts of weeks actually
worked. Bailey v. Kenworthy (1906), 1 B. W. C. C. 371.
In ascertaining the average weekly earnings of an in-
jured workmaifcregard must be had to those weeks in which
the workman has not been able to earn full wages owing
to the slackness of trade, as this was an incident of the
employment. White v. Wiseman (1912), 5 B. W. C. C.
654.
9. Employment for less than a week.
Where a workman has worked less than one week he is
only entitled to a moiety of what he has actually earned.
Peers v. Asttey and TyldesUy Collieries Co. (1901), 3 W.
C. C. 185.
Where a workman has worked for less than one week
he is entitled to a moiety of what he would have earned if
he had continued to work for the whole week. Greaves v.
Mulliners (1901), 3 W. C. C. 189. Where a man worked
eleven hours one day at the rate of Qd. per hour, and then
was injured it was held that the basis of compensation
was the actual amount earned and he was awarded one-half
of 5s. Qd., or 2s. 9d. per week. Case v. Colonial Wharves
(1905), 8 W. C. C. 114.
10. Change in rate of wages during year.
The period of employment for assessing average weekly
earnings is not affected by a change in the character of
the employment and a consequent change in the rate of
wages. When during employment for twelve months there
has been a change in the rate of wages, the average must
be taken on the earnings for the whole twelve months,
and not on the earnings at the time of the accident. Price
v. Marsden & Sons (1899), 80 L. T. 15; 1 W. C. C. 108.
WAGES WHICH ARE THE BASIS OF COMPENSATION 743
Father dependent of son; allowance for son's maintenance
The word "average" in the expression "average weekly
earnings" is only applicable where the weekly earnings
differ in amount. Lysons v. Andrew Knowles & Sons,
Stuart v. Nixon & Bruce (1901), 3 W. C. C. 1. Fluctua-
tions in the value of labor should be taken into considera-
tion in determining the amount of compensation. James
v. Ocean Coal Co. (1904), 6 W. C. C. 128.
Where a workman had earned £3 for five weeks as a
grinder and £2 as a day laborer for two weeks, it was held
that the wages for the total employment should be con-
sidered in arriving at the average weekly wages. Dobson
v. British Oil and Cake Mills (1912), 5 B. W. C. C.
405.
Where by reason of the Eight Hours Act which had
come into effect since the accident, the rate of a work-
man's wages would be reduced, it was held that the court
should take this fact into consideration in assessing com-
pensation. Bevan v. Energlyn Colliery Co. (1911), 5 B. W.
C. C. 169.
11. Father dependent of son; allowance for son's main-
tenance.
The applicant was the father of a workman who met
with a fatal accident. At the time of his death the work-
man was aged fourteen years. His wages were 6s. lid.
per week, which were given to his father and helped to
maintain the family. The father worked at a colliery,
and supplemented his earnings by carrying on the trade
of a barber on certain evenings and part of Saturday.
The deceased used to assist his father as a barber, and the
father estimated his services as worth 6s. per week. The
County Court judge held that the father was not a de-
pendent or partial dependent, inasmuch as the 6s. lid.
was not more than sufficient to maintain the deceased.
The decision of the County Court judge was reversed by
the Court of Appeal, holding that in case of partial de-
744 bradbury's workmen;s compensation law
Deducting poor-law relief received by dependent
pendency; it was not legitimate to have regard to the
amount which the maintenance of the deceased would have
cost. Hall v. Tamworth Colliery Co. (1910), 4 B. W. C. C.
107. The decision of the Court of Appeal was reversed
by the House of Lords, however, where it was held that
in determining the question of fact as to the father's de-
pendency on Hhe son, the County Court judge should
consider both the cost of the maintenance of the son and
the value to the father of the son's services in the barber
business. Tamworth Colliery Co. v. Hall (1911), 4 B. W.
C. C. 313.
12. Compensation for previous injury not included in de-
termining basis of compensation for subsequent in-
jury causing death.
A workman who had been a- collier in the respondents'
mine was, at the time of his death, employed at light work.
He had previously met with an accident in the same em-
ployment, and was at the time of the second accident, which
proved fatal, receiving some compensation in addition to
the wages for the light work. It was held that the com-
pensation which the deceased workman was receiving could
not be taken into account in estimating his earnings as
a basis of compensation to his dependents for his death.
Gough v. Crawshay Brothers, 1 B. W. C. C. 374.
13. Deducting poor-law relief received by dependent.
The mother of a deceased workman earning £1 weekly
claimed compensation as a partial dependent. She was,
before and after her son's death, in receipt of poor-law
relief of 2 shillings weekly, and received 14 shillings weekly
from deceased. It was held that the method of calculating
the sum was to award three years' earnings, and then to
deduct from that three years at 2 shillings weekly, for
the space of three years. Byles v. Pool and another (1909),
2 B. W. C. C. 484.
WAGES WHICH ARE THE BASIS OF COMPENSATION 745
Wages paid seaman under shipping act
14. Deducting wages paid to an assistant in computing
compensation.
Where a miner was killed it was held that the portion
of his wages which he paid to an assistant should be de-
ducted in computing the compensation, but that the cost
of the explosives bought by him in the prosecution of the
work, should not, under § 2, subsection (d) be deducted,
in computing such compensation. M'Kee v. John S. Stein
& Co. (1909), 47 Scotch L. R. 39; 3 B. W. C. C. 544.
15. Wages paid seaman under shipping act taken into
account in awarding compensation.1
A seaman was injured at sea, and eight days later was
placed in a hospital at New York, and discharged from
the ship. In pursuance of the Merchant Shipping Acts,
the shipowners paid him wages in respect of the eight
days, maintained him in the hospital, and brought him
back to England on his recovery. He claimed compensa-
tion from the date of his return to England. The em-
ployers asked that accounts should be taken of the wages
for the eight days as a payment made by them to the work-
man during incapacity. The County Court judge held
that these wages being paid under a statutory liability,
could not be so taken into account. The Court of Appeal
reversed its decision. The House of Lords reversed the
decision of the Court of Appeal, and held that the wages
paid for eight days must be taken into account in fixing
the amount of the weekly payments. McDermott v. Owners
of S. S. Tintoretto (1911), A. C. 35; 4 B. W. C. C. 123.
1 Pensions from the United States government should not be con-
sidered in arriving at wages. See note to title Ohio in Article B, in this
Chapter.
746 bradbury's workmen's compensation law
California
ARTICLE B— SPECIFIC PROVISIONS OF VARIOUS STATUTES,
WITH NOTES
ARIZONA
"A sum equal to fifty (50) per centum of the workman's
average semi-fcionthly earnings when at work on full time
during the preceding year, if he shall have been in the em-
ployment of such employer for such length of time; but if
not for a full year, then fifty (50) per centum of the average
wages, whether semi-monthly, weekly, or daily, being earned
by such workman during the time he was at work for his
employer before and at the time of the accident." § 72, Subd. 1.
CALIFORNIA1
" § 17. (a) The average weekly earnings referred to in
section fifteen hereof shall be one fifty-second of the average
annual earnings of the employe; in computing such earnings
his average annual earnings shall be taken at not less than
three hundred and thirty-three dollars and thirty-three
cents, nor at more than one thousand six hundred and sixty-
six dollars and sixty-six cents and between said limits shall
be arrived at as follows:
" (1) If the injured employ6 has worked in the same em-
ployment, whether for the same employer or not, during
substantially the whole of the year immediately preceding
his injury, his average annual earnings shall consist of three
hundred times the average daily earnings, wage or salary
which he earned as such employe" during the days when so
employed.
1 Applicant applied for a decision on the rate of wage payment for an
injury sustained while in. defendant's employ. The issue was as to con-
tract work. Held that applicant, even though working on a contract
basis, was an employe1 of the defendant and should receive compensation
on his average wage while so employed and not on his average wage while
working on a day's pay basis. There was only two weeks' compensation
involved. Hart v. Mammoth Copper Mining Co., Cal. Indus. Ace. Bd.,
May 15, 1913.
WAGES WHICH ARE THE BASIS OF COMPENSATION 747
California
"(2) If the injured employe1 has not so worked in such
employment during substantially the whole of such im-
mediately preceding year, his average annual earnings shall
consist of three hundred times the average daily earnings,
wage or salary which an employe" of the same class, working
substantially the whole of such immediately preceding year,
in the same or a similar kind of employment, in the same or
a neighboring place, earned during the days when so employed.
"(3) In every case where for any reason the foregoing
methods of arriving at the average annual earnings of the
injured employe" cannot reasonably and fairly be applied,
such annual earnings shall be taken at such sum as, having
regard to the previous earnings of the injured employ^, and
of other employes of the same or most similar class, working
in the same or most similar employment, in the same or
neighboring locality, shall reasonably represent the average
annual earning capacity of the injured employ^ at the time
of the injury in the kind of employment in which he was
then working, or in any employment similar thereto.
"(b) In determining such average weekly earnings, there
shall be included the market value of board, lodging, fuel
and other advantages received by the injured employ^, as
part of his remuneration and which can be estimated in
money, but such average weekly earnings shall not include
any sum which the employer paid to the injured employe"
to cover any special expenses entailed on him by the nature
of his employment.
" (c) If the injured employe" is a minor, and his incapacity,
whether total or partial, is permanent, his average weekly
earnings shall be deemed, within the limits fixed, to be the
weekly sum, that under ordinary circumstances he would
probably be able to earn after obtaining the age of twenty-
one years, in the occupation in which he was employed at
the time of the injury, if he had not been injured."
When an employe receives two injuries at different
times the wages on which the compensation is to be based
are those received at the time of the later injury. See § 16
(/) in Chapter XII.
748 bradbury's workmen's compensation law
Illinois
CONNECTICUT
"Part B, § 13. Average Weekly Earnings. For the pur-
pose of this act, the average weekly wage shall be ascertained
by dividing the total wages received by the injured work-
man from the employer in whose service he is injured during
the twenty-sik calendar weeks immediately preceding that
during which he was injured, by the number of said calendar
weeks during which, or any portion of which, said workman
was actually employed by said employer, provided in making
such computation absence for seven consecutive calendar
days, although not in the same calendar week, shall be con-
sidered as absence for a calendar week. Where the em-
ployment commenced other than at the beginning of a
calendar week, such calendar week and the wages earned
during such week, shall be excluded in making the above
computation. Where the employment previous to injury
as provided above is computed to be less than a net period
of two calendar weeks, then his weekly wage shall be con-
sidered to be equivalent to the average weekly wage pre-
vailing in the same or similar employment in the same locality
at the time of injury."
ILLINOIS
"§ 10. The basis for computing the compensation pro-
vided for in sections 7 and 8 of the Act shall be as follows:
" (a) The compensation shall be computed on the basis
of the annual earnings which the injured person received
as salary, wages or earnings if in the employment of the
same employer continuously during the year next preceding
the injury.
"(b) Employment by the same employer shall be taken
to mean employment by the same employer in the grade
in which the employe was employed at the time of the acci-
dent, uninterrupted by absence from work due to illness or
any other unavoidable cause.
"(c) If the injured person has not been engaged in the
WAGES WHICH ABB THE BASIS OP COMPENSATION 749
Illinois
employment of the same employer for the full year immedi-
ately preceding the accident, the compensation shall be
computed according to the annual earnings which persons
of the same class in the same employment and same loca-
tion, (or if that be impracticable, of neighboring employ-
ments of the same kind) have earned during such period.
"(d) As to employes in employments in which it is the
custom to operate throughout the working days of the year,
the annual earnings, if not otherwise determinable, shall
be regarded as 300 times the average daily earnings in such
computation.
"(e) As to employes in employments in which it is the
custom to operate for a part of the whole number of working
days in each year, such number, if the annual earnings are
not otherwise determinable, shall be used instead of 300
as a basis for computing the annual earnings, provided the
minimum number of days which shall be so used for the
basis of. the year's work shall be not less than 200.
"(/) In the case of injured employes who earn either no
wage or less than the earnings of adult day laborers in the
same line of employment in that locality, the yearly wage
shall be reckoned according to the average annual earnings
of adults of the same class in the same (or if that is imprac-
ticable, then of neighboring) employments.
"(g) Earnings, for the purpose of this section, shall be
based on the earnings for the number of hours commonly
regarded as a day's work for that employment, and shall
exclude overtime earnings. The earnings shall not include
any sum which the employer has been accustomed to pay
the employe to cover any special expense entailed on him
by the nature of his employment.
"(h) In computing the compensation to be paid to any
employ^, who, before the accident for which he claims com-
pensation, was disabled and drawing compensation under
the terms of this Act, the compensation for each subsequent
injury shall be apportioned according to the proportion of
incapacity and disability caused by the respective injuries
which he may have suffered.
"(i) To determine t>he amount of compensation for each
750 bradbury's workmen's compensation law
Iowa
installment period, the amount per annum shall be ascer-
tained pursuant hereto, and such amount divided by the
number of installment periods per annum."
IOWA
"§ 16. The basis for computing compensation provided
for in this act shall be as follows:
"(a) The compensation shall be computed on the basis
of the annual earnings which the injured person received
as salary, wages or earnings in the employment of the same
employer during the year next preceding the injury.
"(b) Employment by the same employer shall be taken
to mean employment by the same employer in the grade
in which the employ6 was employed at the time of the acci-
dent, uninterrupted by absence from work due to illness or
any other unavoidable cause.
"(c) The annual earnings, if not otherwise determinable,
shall be regarded as three hundred (300) times the average
daily earnings in such computation.
"(d) If the injured person has not been engaged in the
employment for a full year immediately preceding the acci-
dent, the compensation shall be computed according to the
annual earnings which persons of the same class in the same
or in neighboring employments of the same kind have earned
during such period. And if this basis of computation is
impossible, or should appear to be unreasonable, three
hundred (300) times the amount which the injured person
earned on an average of those days when he was working
during the year next preceding the accident, shall be used
as a basis for the computation.
" (e) In case of injured employes who earn either no wages
or less than three hundred (300) times the usual daily wage
or earnings of the adult day laborer in the same line of in-
dustry of that locality the yearly wage shall be reckoned
as three hundred (300) times the average daily local wages
of the average wage earned in that particular kind or class
of work; or if information of that class is not obtainable,
WAGES WHICH. ARE THE BASIS OF COMPENSATION 751
Kansas
then of the class or kindred or similarity in the same general
employment in the same neighborhood.
"(f) As to employes in employments in which it is the
custom to operate for a part of the whole number of work-
ing days in each year such number shall be used instead of
three hundred (300) as a basis for computing the annual
earnings, provided, the minimum number of days which
shall be used for the basis of the year's work shall not be
less than two hundred (200).
"(g) Earnings, for the purpose of this section, shall be
based on the earnings for the number of hours commonly
regarded as a day's work for that employment, and shall
exclude overtime earnings. The earnings shall not include
any sum which the employer has been accustomed to pay
the employ^ to cover any special expense entailed on him
by the nature of his employment.
"(h) In computing the compensation to be paid to any
employe1 who, before the accident for which he claims com-
pensation, was disabled and drawing compensation under
the terms of this act, the compensation for each subsequent
injury shall be apportioned according to the proportion of
incapacity and disability caused by the respective injuries
which he may have suffered.
KANSAS
"§ 12. Rule for compensation. For the purposes of the
provisions of this act relating to 'earnings' and 'average
earnings' of a workman, the following rules shall be observed:
(a) 'Average earnings' shall be computed in such manner
as is best calculated to give the average rate per week at
which the workman was being remunerated for the 52 weeks
prior to the accident. Provided, that where by reason of
the shortness of time during which the workman has been
in the employment of his employer, or the casual nature or
the terms of the employment, it is impracticable to com-
pute the rate of remuneration, regard shall be had to the
average weekly amount which, during the twelve months
752 bradbury's workmen's compensation law
-• Maryland
previous to the accident, was being earned by a person in
the same grade employed at the same work by the same
employer, or, if there is no person employed, by a person
in the same grade employed in the same class of employment
and in the same district, (b) Where the workman had
entered into concurrent contracts of service with two or
more employers under which he worked at one time for
one such employer and at another time for another such
employer, his 'earnings' and his 'average earnings' shall
be computed as if his earnings under all such contracts
were earnings in the employment of the employer for whom
he was working at the time of the accident, (c) Employment
by the same employer shall be taken to mean employment
by the same employer in the grade in which the workman
was employed at the time of the accident, uninterrupted
by his absence of work due to illness or any other unavoid-
able cause, (d) Where the employer has been accustomed
to pay to the workman a sum to cover any special expenses
entailed upon him by the nature of his employment, the
sum so paid shall not be reckoned as part of the earnings,
(e) In fixing the amount of the payment, allowance shall
be made for any payment or benefit which the workman
may receive from the employer during his period of in-
capacity. (/) In the case of partial incapacity the pay-
ments shall be computed to equal, as closely as possible,
fifty per cent of the difference between the amount of the
'average earnings' of the workman before the accident,
to be computed as herein provided, and the average amount
which he is most probably able to earn in some suitable
employment or business after the accident, subject, how-
ever, to the limitations hereinbefore provided."
MARYLAND
See § 5, (a) and (b) for the manner of computing the
wages in death cases and § 5 (II) and (III) for provisions
on this subject relating to disability payments.
WAGES WHICH AEE THE BASIS OF COMPENSATION 753
Massachusetts
MASSACHUSETTS *
"Part V, § 2. * * * 'Average weekly wages' shall mean
the earnings of the injured employe during the period of
twelve calendar months immediately preceding the date
of injury, divided by fifty-two; but if the injured employe
1 The Massachusetts Industrial Accident Board has announced the
following formula in determining the average weekly wages of injured
employes:
hours constitute one week,
Wages are paid on (give date of week).
For week ending (give day of week).
Total amount received by injured employe during the year ending
(give day of injury) $
Number of "short-time" weeks
Full time for above number of weeks hours
Number of hours employed during "short-time " period hours.
Time lost during "short-time" period hours.
Full year, 52 weeks.
Time lost weeks.
Left after "time-lost" is deducted weeks.
Total amount earned: I
Divided by weeks gives average weekly wage $
Bulletin No. 2, Mass. Indus. Ace. Bd., Jan., 1913, p. 10.
Where an employe was engaged as an elevator attendant during the
first six of twelve months preceding his death and as a watchman at an
increased wage during the last six months, it was held that the average
weekly wage of the employe during the last six months controlled, as this
was the last grade of employment. See Bulletin No. 2, Mass. Indus. Ace.
Bd., Jan., 1913, p. 9.
In short time disability cases the Board will approve claims for compen-
sation made with employes in which the weekly wage received at the time
of the injury, as shown in the accident report, is accepted as the average
weekly wage under the authority of Part III, § 4 of the Act. Bulletin No. 2,
Mass. Indus. Ace. Bd., Jan., 1913, p. 9.
In determining the average weekly wages under the statute the value of
board, clothing, gratuities, etc., must be taken into consideration and if
a man is engaged by more than one employer, that is to say, in the case
of a longshoreman, and who works for one employer part of the day or
week and for another or several employers the balance of the day or week,
he is entitled to compensation based upon one-half of the average weekly
48
754 bradbury's workmen's compensation law
Michigan
lost more than two weeks' time during such period then the
earnings for the remainder of such twelve calendar months
shall be divided by the number of weeks remaining after
the time so lost has been deducted. Where, by reason of the
shortness of the time during which the employe1 has been
in the employment of his employer, or the nature or terms
of the emplojjment, it is impracticable to compute the aver-
age weekly wages, as above defined, regard may be had to
the average weekly amount which, during the twelve months
previous to the injury, was being earned by a person in the
same grade employed at the same work by the same em-
ployer; or, if there is no person so employed, by a person in
the same grade employed in the same class of employment
and in the same district."
MICHIGAN1 /
"Part II, § 11. The term 'average weekly wages' as used
in this act is defined to be one fifty-second part of the aver-
age annual earnings of the employed If the injured em-
ploy^ has not worked in the employment in which he was
wages of longshoremen employed in the same class of work in the same dis-
trict. See Bulletin No. 2, Mass. Indus. Ace. Bd., Jan., 1913, p. 9.
Overtime earnings in continuous or regular employments should not
be charged off against lost time in computing the average weekly wages.
See Bulletin No. 2, Mass. Indus. Ace. Bd., Jan., 1913, p. 8.
The average weekly wages of the employe were determined by obtaining
a statement of the wages earned by a fellow employe equally competent,
who was employed by the same employer in the same grade, and it was
held that this was necessary on account of the shortness of time during
which the claimant had been working for her employer. Regan v. Travelers
Ins. Co., Mass. Indus. Ace. Bd.
1 "The term 'average weekly wages' is defined in section 11, part 2,
of Act 10, Public Acts 1912, and the method of computing and determining
such 'average weekly wages' of an injured employ^, is set forth in said
section with considerable detail. Where the employ^ receives a weekly
salary or has been steadily employed throughout the year, the determina-
tion of the question is a simple matter, and in cases where the employe1
has been working substantially full time, but for a period substantially
less than one year, the method of computation seems to be clearly covered
WAGES WHICH ARE THE BASIS OF COMPENSATION 755
Michigan
working at the time of the accident, whether for the employer
or not, during substantially the whole of the year immedi-
ately preceding his injury, his average annual earnings
shall consist of three hundred times the average daily wage
or salary which he has earned in such employment during
the days when so employed. If the injured employe" has
not worked in such employment during substantially the
whole of such immediately preceding year, his average
by the statute. In the case of steady employment throughout one or more
years, the average annual earning of the employe" for the last preceding
year is determined and the aggregate thereof, when divided by 52, gives
the 'average weekly wages.' In the case of steady employment for a
period substantially less than one year, the 'average weekly wages' is
determined by multiplying the average daily wage of the employ^ by 300
and dividing by 52.
"In the case under consideration, where it appears that the employ^
continues to work throughout the year, but is engaged less than full time,
the rule for determining the average weekly wages becomes less obvious,
and possibly such rule in some instances must bend to conditions and cir-
cumstances. However, from a careful examination of the provisions of
section 11, part 2, of the act, and similar provisions in the compensation
laws of other states and the construction put upon the same by the courts,
the board is of the opinion that the general rule in this class of cases is to
determine the average weekly wages by multiplying the daily wage by
300 and dividing by 52.
"We recognize that there are some classes of employment where, from
the nature of business, the employment is limited to certain days weekly,
and in these and other cases the workmen are employed more or less by
others during the time not spent in the service of the employer for whom
they were working when injured. It is obvious that a different rule would
apply in some case arising out of the last mentioned classes of employ-
ment, and that such cases would have to be determined upon the particu-
lar facts and circumstances found to exist. These could be determined
by the board only when they came before it in due course for hearing and
adjustment." Ruling of Michigan Industrial Accident 'Board, November,
1912.
A miner was actually at work 131 days in a mine which was operated
148 days during the entire year. It was held that in determining his daily
wage the amount which he actually earned should be divided by the num-
ber of days he actually worked. Anna AndrewjesM v. Wolverine Coal Co.,
Mich. Indus. Ace. Bd., March, 1913.
756 bradbury's workmen's compensation law
Minnesota
annual earnings shall consist of three hundred times the
average daily wage or salary which an employe of the same
class working substantially the whole of such immediately
preceding year in the same or a similar employment in the
same or a neighboring place, shall have earned in such em-
ployment during the days when so employed. In cases
where the foregoing methods of arriving at the average
annual earnings of the injured employe" cannot reasonably
and fairly be applied, such annual earnings shall be taken
at such sum as, having regard to the previous earnings of the
injured employ^, and of other employes of the same or most
similar class, working in the same or most similar employ-
ment, in the same or neighboring locality, shall reasonably
represent the annual earning capacity of the injured em-
ploye" at the time of the accident in the employment in which
he was working at such time. The fact that an employe"
has suffered a previous disability, or received compensation
therefor, shall not preclude compensation for a later injury,
or for death, but in determining compensation for the later
injury, or death, his average annual earnings shall be such
sum as will reasonably represent his annual earning capacity
at the time of the later injury in the employment in which
he was working at such time, and shall be arrived at accord-
ing to and subject to the limitations of the provisions of
this section. The weekly loss in wages referred to in this
act shall consist of such percentage of the average weekly
earnings of the injured employ^, computed according to the
provisions of this section, as shall fairly represent the pro-
portionate extent of the impairment of his earning capacity
in the employment in which he was working at the time of
the accident, the same to be fixed as of the time of the acci-
dent, but to be determined in view of the nature and extent
of the injury."
MINNESOTA
The computation is based on the wages the employe
receives at the time of the injury. Part II, § 13.
"WAGES WHICH ARE THE BASIS OF COMPENSATION 757
New Hampshire
NEBRASKA
"Part II, §26. Wherever in this Act the term 'wages'
is used, it shall be construed to mean the money rate at
■which the service rendered is recompensed under the contract
of hiring in force at the time of the accident, and shall not
include gratuities received from the employer or others,
nor shall it include board, lodging or similar advantages
received from the employer, unless the money value of such
advantages shall have been fixed by the parties at the time
of hiring. In occupations involving seasonal employment
or employments dependent upon the weather, the employees
weekly wages shall be taken to be one-fiftieth of the total
wages which he has earned from all occupations during
the year immediately preceding the accident, unless it be
shown that during such year, by reason of exceptional causes,
such method of computation does not ascertain fairly the
earnings of the employe, in which case the period for calcu-
lation shall be extended so far as to give a basis for the fair
ascertainment of his average weekly earnings. In continu-
ous employments, if immediately prior to the accident the
rate of wages was fixed by the day or hour, or by the out^
put of the employ^, his weekly wages shall be taken to be
five and one-half times his average earnings at such rate
for a working day of ordinary length, excluding earnings
from overtime and using as the basis of calculation his earn-
ings during so much of the preceding six months as he worked
for the same employer."
NEVADA
The act provides for payment of certain percentages of
the workmen's "average monthly earnings," but this term
is not denned. See § 25.
NEW HAMPSHIRE
The term average wages is not specially denned in the
New Hampshire Act. See § 6.
758 bradbury's workmen's compensation law
New Jersey
NEW JERSEY J
"§ III, 23. * * * 'Wages' defined. Wages fixed by out-
put. Wherever in section two of this act the term 'wages'
is used, it shall be construed to mean the money rate at
which the service rendered is recompensed under the con-
tract of hiring in force at the time of the accident, and shall
not include gratuities received from the employer or others.
nor shall jt include board, lodging or similar advantages
received from the employer, unless the money value of
such advantages shall have been fixed by the parties at
the time of hiring. Where prior to the accident the rate
of wages is fixed by the output of the employe^ his weekly
wages shall be taken to be six times his average daily earn-
ings for a working day of ordinary length, excluding over-
time. This rate of weekly wages shall be calculated by
dividing the total value of the employe's output during
the actual number of full working days during the preceding
1 Where, by reason of inclement weather the workman was not employed
regularly, but the highest amount earned in one week was $15.75, and the
lowest $2.40, it was held that the amount earned during the entire period
should be taken and divided by the number of weeks employed to deter-
mine the wages upon which the compensation should be based. Re Wal-
ton; (Mercer Common Pleas, May 10th, 1912); 35 N. J. Law J. 184.
Where a longshoreman worked irregular hours, it was held that in de-
termining the amount of his wages the amount earned for night work
should be added to the amount earned in the day time, and this rule was
not changed by the fact that for the night work he received extra compen-
sation. Bonaldi v. Hamburg Am. Line, 36 N. J. Law J. 302.
A workman applying for work was asked if he understood the use of
saws, to which he replied that he did, and he was put to work without any
agreement as to the amount of wages which he was to receive. On the
same day that he started to work he was injured by one of the saws. It
was held that the workman was entitled to compensation of at least the
minimum amount specified in the statute of $5 a week, for the number
of weeks specified in the act for the loss of a thumb and the partial loss
of the use of the first finger and the loss of the use of the fourth finger.
Mueller v. Oelkers Mfg. Co., (Essex Common Pleas, February, 1913); 36
N. J. Law 117.
WAGES WHICH ARE THE BASIS OF COMPENSATION 759
New York
six months, by the number of days the workman was actually
employed. All parts of this calculation shall refer to employ-
ment by the same employer."
NEW YORK
"§3, subd. 9. 'Wages' means the money rate at which
the service rendered is recompensed under the contract of
hiring in force at the time of the accident, including the
reasonable value of board, rent, housing, lodging or similar
advantage received from the employer."
"§ 14. Weekly wages basis of compensation. Except as
otherwise provided in this chapter, the average weekly
wages of the injured employe at the time of the injury shall
be taken as the basis upon which to compute compensation
or death benefits, and shall be determined as follows:
"1. If the injured employe shall have worked in the
employment in which he was working at the time of the
accident, whether for the same employer or not, during sub-
stantially the whole of the year immediately preceding
his injury, his average annual earnings shall consist of three
hundred times the average daily wage or salary which he
shall have earned in such employment during the days when
so employed;
"2. If the injured employe shall not have worked in
such employment during substantially the whole of such
year, his average annual earnings shall consist of three
hundred times the average daily wage or salary which an
employe of the same class working substantially the whole
of such immediately preceding year in the same or in a
similar employment in the same or a neighboring place
shall have earned in such employment during the days
when so employed;
"3. If either of the foregoing methods of arriving at
the annual average earnings of an injured employe1 cannot
reasonably and fairly be applied, such annual earnings shall
be such sum as, having regard to the previous earnings of
the injured employe and of other employe's of the same or
most similar class, working in the same or most similar
760 bradbury's workmen's compensation law
Ohio
employment in the same or neighboring locality, shall reason-
ably represent the annual earning capacity of the injured
employe1 in the employment in which he was working at the
time of the accident;
"4. The average weekly wages of an employe" shall be
one-fifty-second part of his average annual earnings;
"5. If it be established that the injured employe" was
a minor whe» injured, and that under normal conditions
his wages would be expected to increase, the fact may be
considered in arriving at his average weekly wages."
OHIO1
"§ 1465-84; § 37, Act of 1913. The average weekly wage
of the injured person at the time of the injury shall be taken
as the basis upon which to compute, the benefits.
"§ 1465-85; § 38,> Act of 1913. If it is established that
1 An employe having been regularly employed by the same employer
for a period longer than one year the average weekly wage is determined by
dividing the aggregate amount of his earnings preceding his death by 52.
Re Anna King, Claim No. 1645, Ohio St. Lia. Bd. Awd., Jan. 29, 1913. In
the last-mentioned case it appeared that during the last year the work-
man's earnings had fluctuated from $4 to $12 a week, and that during
the entire year he had earned $507. The Board held that the sum of $507
should be divided by 52, which made an average weekly wage of $9.75,
on the basis of which compensation was awarded.
An employe received an injury the day after he began work from which
he died. Prior to this time he had not been employed at all for a consider-
able portion of time. The contract of employment was at the rate of
$9.44 a week, which was the usual wages paid in the locality for the kind
of work in which he was engaged. It was held that where the period of
employment has been so short as to furnish no basis for determining the
average weekly wage that the rate of wages received by the workman at
the time of receiving the injury, and the wages usually paid in the vicinity,
for the same class of work, must be taken into consideration in determin-
ing the average weekly wage. The Board therefore held that compensa-
tion should be paid on the basis of $9.44 as the average weekly wage of the
deceased employed Re Frances R. Williams, Claim No. 296, Ohio St. Lia.
Bd. Awd., Nov. 15, 1912.
Where an employe has been continuously employed for a considerable
WAGES WHICH ARE THE BASIS OF COMPENSATION 761
Rhode Island
the injured employe- was of such age and experience when
injured as that under natural conditions his wages would
be expected to increase, the fact may be considered in arriv-
ing at his average weekly wage."
OREGON
The Oregon Act contains no provision on this subject,
as specific amounts are allowed as compensation irrespective
of the wages earned by the employe.
RHODE ISLAND
"§ 13. The 'average weekly wages, earnings, or salary'
of an injured employe shall be computed as follows:
"(a) If the injured employe1 has worked in the same em-
ployment in which he was working at the time of the acci-
dent, whether for the same employer or not, during sub-
period of time, his average weekly wage is determined by dividing the
aggregate amount of his earnings by the number of weeks he was em-
ployed. Re Elida A. Baird, Claim No. 504, Ohio St. Lia. Bd. Awd., Nov.
11, 1912. In the last-mentioned case the deceased workman was employed
at the weekly wage of $13.50. As a matter of fact he earned more, for
while he occasionally lost time he more than made it up by working over-
time, for which he was paid in addition to the $13.50. It appeared that
during the 39 weeks preceding the injury he had earned $586.51, which
made an average of $15.04 per week. The original claim was based on the
average weekly wage of $13.50, and the Board ruled that "the claimants
having made their claim for compensation based upon an average weekly
wage of $13.50, an award will be made on that basis, and the claim will
be continued indefinitely, so that should additional information be fur-
nished showing the wages earned by the deceased for one full year preced-
ing his death, and it should appear that his actual earning capacity ex-
ceeded that amount, the finding now made may be modified accordingly."
A pension from the United States Government on account of services
rendered in the Army or Navy, or on account of disability incurred in the
Military or Naval service, will not be considered in determining the aver-
age weekly wage, or in determining the amount of compensation. Re
Harriet H. Horn, Claim No. 1013, Ohio St. Lia. Bd. Awd., Dec. 23, 1912.
762 bradbury's workmen's compensation law
Rhode Island
stantially the whole of the year immediately preceding his
injury, his 'average weekly wages' shall be three hundred
times the average daily wages, earnings, or salary, which
he has earned in such employment during the days when
so employed and working the number of hours constituting
a full working day in such employment, divided by fifty-
two. But where the employe- is employed concurrently by
two or mo^e employers, for one of whom he works at one
time and for another of whom he works at another time,
his 'average weekly wages' shall be computed as if the wages,
earnings, or salary received by him from all such employers
were wages, earnings, or salary earned in the employment
of the employer for whom he was working at the time of
the accident.
"(b) If the injured employe- has not so worked in such
employment during substantially the whole of such im-
mediately preceding year, his 'average weekly wages' shall
be three hundred times the average daily wages, earnings,
or salary which an employe- of the same class working sub-
stantially the whole of such immediately preceding year in
the same or a similar employment, in the same or a neighbor-
ing place, has earned in such employment during the days
when so employed and working the number of hours con-
stituting a full working day in such employment divided by
fifty-two.
"(c) In cases where the foregoing methods of arriving
at the 'average weekly wages, earnings, or salary' of the
injured employe" cannot reasonably and fairly be applied,
such 'average weekly wages, earnings, or salary' shall be
taken at such sum as, having regard to the previous wages,
earnings or salary of the injured employe^ and of other
employe's of the same or most similar class, working in the
same or most similar employment in the same or a neighbor-
ing locality, shall reasonably represent the weekly earning
capacity of the injured employe- at the time of the accident
in the employment in which he was working at such time.
"(d) Where the employer has been accustomed to pay
to the employe- a sum to cover any special expense incurred
by said employe by the nature of his employment, the sum
WAGES WHICH ARE THE BASIS OF COMPENSATION 763
West Virginia
so paid shall not be reckoned as part of the employees wages,
earnings or salary.
"(e) The fact that an employe has suffered a previous
injury, or received compensation therefor, shall not pre-
clude compensation for a later injury or for death; but in
determining the compensation for the later injury or death,
his 'average weekly wages' shall be such sum as will reason-
ably represent his weekly earning capacity at the time of
the later injury, in the employment in which he was working
at such time, and shall be arrived at according to, and sub-
ject to the limitations of, the previous provisions of this
' section."
TEXAS
"Part IV, § 1. * * * 'Average Weekly Wages' shall
mean the earnings of the injured employe" during the period
of twelve calendar months immediately preceding the date
of injury, divided by fifty-two; but if the injured employe"
lost more than two weeks during such period, then the
earnings for the remainder of the twelve calendar months
shall be divided by the number of weeks remaining after
time lost has been deducted. When, by reason of the short-
ness of the time of the employment of the employ^, it is
impracticable to compute the average weekly wages as
above defined, it shall be computed by the Industrial Acci-
dent Board in any manner which may seem just and fair
to both parties."
WASHINGTON
There is nothing relating to this subject in the Washington
Act, as the payments are of specific amounts irrespective
of the wages of the employed
WEST VIRGINIA
"§ 37. The average weekly wage or earnings of the in-
jured person at the time of injury shall be taken as the basis
upon which to compute the benefits. The time of injury
764 bradbury's workmen's compensation law
Wisconsin
within the meaning of this act shall be such reasonable time
prior to the injury as shall enable the commission to make
a fair award, taking into consideration both the rate of
wage or earning of such person prior to his entering the
service in which he was injured may be taken into
consideration."
WISCONSIN
"§ 2394-10. 1. The average weekly earnings referred to
in section 2394-9 shall be one fifty-second of the average
annual earnings of the employ^.
The average annual earnings for employes operating,
running, riding upon, or switching passenger, freight or
other trains, engines or cars for a railroad company operating
a steam railroad as a common carrier, shall be taken at not
less than $500 nor more than $1250 per annum; and for all
other employes such average annual earnings shall be taken
at not less than $375 nor more than $750. Between said
limits such average annual earnings shall be determined as
follows:
"(a) If the injured employe1 has worked in the employ-
ment in which he was working at the time of the accident,
whether for the same employer or not, during substantially
the whole of the year immediately preceding his injury,
his average annual earnings shall consist of three hundred
times the average daily wage or salary which he has earned
in such employment during the days when so employed.
"(b) If the injured employe" has not so worked in such
employment during substantially the whole of such im-
mediately preceding year, his average annual earnings shall
consist of three hundred times the average daily wage or
salary which an employ^ of the same class working substan-
tially the whole of such immediately preceding year in the
same or a similar employment in the same or a neighbor-
ing place shall have earned in such employment during the
days when so employed.
" (c) In cases where the foregoing methods of arriving at
the average annual earnings of the injured employe1 cannot
WAGES WHICH ARE THE BASIS OF COMPENSATION 765
Wisconsin
reasonably and fairly be applied, such average annual earn-
ings shall be taken at such sum as, having regard to the
previous earnings of the injured employ^, and of other em-
ployes of the same or most similar class, working in the
same or most similar employment, in the same or a neighbor-
ing locality, shall reasonably represent the average annual
earning capacity of the injured employ^ at the time of the
accident in the employment in which he was working at
such time.
"If an employ^ is a minor and is permanently disabled,
his weekly earnings shall be determined on the basis of the
earnings that such minor, if not disabled, probably would
earn after attaining the age of twenty-one years.
"(d) The fact that an employ^ has suffered a previous
disability, or received compensation therefor, shall not
preclude compensation for a later injury, or for death, but
in determining compensation for the later injury, or death,
his average annual earnings shall be such sum as will reason-
ably represent his average annual earning capacity at the
time of the later injury, in the employment in which he was
working at such time, and shall be arrived at according to,
and subject to the limitations of the previous provisions
of this section.
"2. The weekly loss in wages referred to in section 2394-9
shall consist of such percentage of the average weekly earn-
ings of the injured employe, computed according to the
provisions of this section, as shall fairly represent the pro-
portionate extent of the impairment of his earning capacity
in the employment in which he was working at the time
of the accident, and other suitable employments, the same
to be fixed as of the time of the accident, but to be deter-
mined in view of the nature and extent of the injury."
CHAPTER XIV
NOTICES OF INJURIES AND OF CLAIMS FOR
COMPENSATION
Page
ARTICLE A— Inteoduction 766
Page
1. In general 766 2. Decisions under the Brit-
ish statute 767
ARTICLE B — Specific Provisions op Various Statutes 769
Page
Arizona 769 Nevada 780
California 770 New Hampshire 780
Connecticut 772 New Jersey 781
Illinois 773 New York 782
Iowa 774 Ohio 783
Kansas 774 Oregon 784
Maryland 775 Rhode Island 784
Massachusetts 775 Texas 785
Michigan 778 Washington 787
Minnesota 779 West Virginia 787
Nebraska 779 Wisconsin 788
ARTICLE A— INTRODUCTION
1. In general.
Many of the American compensation acts were founded
on the British statute, as will be discovered by consulting
§ II of that statute in Chapter XXXVI. As a general
rule the compensation acts are much less stringent as to
notice than were the old employers' liability acts. Never-
theless it is important that there should be a reasonable
enforcement of the provisions for notice, because laxity
in this respect opens the door to fraudulent claims and
malingering. Most of the act's contain provisions relieving
employes from the effect of mistakes in giving notice, or
766
CLAIMS FOB COMPENSATION 767
Decisions under the British statute
in failing to give any notice whatever, under certain cir-
cumstances.
2. Decisions under the British statute.
A plea that a workman does not know of the Compensa-
tion Act is not such a mistake as will excuse the making
of a claim for compensation within the statutory period.
Judd v. Metropolitan Asylums Board (1912), 5 B. W. C. C.
420. Whether or not a particular state of facts constitutes
reasonable cause for failure to give notice is a question of
law. Moore v. Naval Colliery Co. (1911), 5 B. W. C. C.
87. Where the effect of an injury is latent and the em-
ployer has not been prejudiced the workman will be re-
lieved from the failure to give notice even though the
notice is given nine months after the accident. Fry v.
Cheltenham Corporation (1911), 5 B. W. C. C. 162.
Where the notice was given to a foreman, and he wrote
the particulars thereof in a book supplied by the employers
for the purpose, it was held that this was written notice
within the meaning of the act. Stevens v. Insoles (1911),
5 B. W. C. C. 164. A waitress was injured by accident in
June, 1910. She told her employer the same day. No
effects of the accident were apparent until she became
ill in August and she did not know until November that
the illness was caused by the accident. Notice was given
in November or December, 1910 and it was held that the
employers were not prejudiced by the delay and com-
pensation was awarded. Eaton v. Evans (1911), 5 B. W.
C. C. 82. A saleswoman in a retail store received a shock
from a fire which burned up the store. Thinking she was
suffering from a temporary nervous derangement only,
she did not give any notice of the accident until six months
later, when she discovered that she had been suffering
from a serious nervous disease. The court found that
the delay was due to a reasonable cause and that the em-
ployers were not prejudiced by the delay. Compensation
768 bradbury's workmen's compensation law
Decisions under the British statute
was therefore awarded. Hoare v. Arding and Hobbs (1911),
5 B. W. C. C. 36. An insurance agent, employed to col-
lect premiums from door to door, slipped on some stairs
while on his rounds, and injured himself. He gave verbal
notice of the accident to the employers' manager a day
or two later aqd again a month later. He gave no formal
notice, thinking that his injuries were only slight. Seven
weeks after the accident he left his employers' service,
and formal notice was only given eleven weeks after that.
It was held that the accident arose out of the employment
and that there was reasonable cause for the delay in giving -
the notice. Refuge Assurance Co. v. Millar (1911), 49
Sc. L. R. 67; 5 B. W. C. C. 5,22.
An elderly cripple met with an accident. He gave no
notice to his employers, not knowing that he had perma-
nently overstrained his diseased heart, and fearing that
if he obtained compensation the insurance company would
prevent his being taken back to work on recovery, and
intending not to claim compensation if he recovered quickly.
Four months after the accident, he learned for the first
time that he was incapacitated for life, and he thereupon
gave notice and brought proceedings. It was held that
the delay in giving notice was due to a reasonable cause
and compensation was awarded. Breakwell v. Clee Hill
Granite Co. (1911), 5 B. W. C. C. 133.
A workman who was injured spoke to a sub-contractor
about it and stated that he supposed the sub-contractor
would inform the principal contractor. The principal, how-
ever, did not learn of the injury until nearly five months
later, and on a claim being made for compensation, it was
held that the principal had been prejudiced and there was
no evidence of mistake or other reasonable cause for the
delay in giving notice and compensation was refused.
Griffiths v. Atkinson (1912), 5 B. W. C. C. 345.
A workman was temporarily employed as a laborer
when he slipped and fell, striking his left breast with the
CLAIMS FOR COMPENSATION 769
Arizona
handle of his pick. He remained away from work for a
few days and then went to work for another employer.
He stated that the breast had given him pain on and off
for twelve months after the accident. Six months after
the accident he noticed a swelling in the breast, which he
attributed to the injury; a month later a tubercular abscess
formed, which burst after some weeks, and he was then
admitted to a hospital. Two months later he made a
claim for compensation. It was held that there was not
any mistake or reasonable cause for the delay in giving
notice and compensation was refused. Egerton v. Moore
(1912), 5 B. W. C. C. 284.
ARTICLE B— SPECIFIC PROVISIONS OF VARIOUS STATUTES
ARIZONA
FORM
Notice of injury 1
(§74)
To
Name and address of employer.
Please take notice that pursuant to § 74 of Chapter 7 of the Laws
of Arizona of 1913, relating to Employers and Employes, com-
monly known as the Workmen's Compensation Act, that the un-
dersigned was injured while in your service at the time and place
and with the result hereinafter stated: %
1. The injury occurred on the day of ,
19.., at
2. The cause of said injury was as follows: .
» The above notice must be served on the employer or his representative
within two weeks after the injury, unless the injury is fatal or renders the
workman incompetent to give the notice. A copy must also be sent by
mail to the Attorney General. § 74. See the Same section for further
particulars relating to the service of the notice.
49
770 bradbtjry's workmen's compensation law
California
3. The nature and degree of the injury sustained were as fol-
lows:
You will further take notice that the undersigned. claims com-
pensation by reason of said injury in accordance with the provi-
sions of said statute.
Dated the day of , 19. ..
Name of employe
Address of employe
CALIFORNIA
FORM
Notice of injury '
(§20)
To
Name and address of employer
Please take notice that pursuant to Chapter 176 of the Laws of
California of 1913, commonly known as the Workmen's Compen-
sation Act, that whose address
1 The above notice must be served on the employer within thirty days
after the occurrence of the accident. § 20, which see for further particulars
as to requirements of notice. Actual knowledge of the injury is equivalent
to notice. § 20.
Applicant was working on electric lines during a wind storm. One of
the cross arms was blown around and struck him on the shin bones of
both legs. A week later the left shin had become quite troublesome, in-
flammation set in, and applicant /limped badly. He- did not leave work
until sixteen days after the cross-arm struck his legs. An operation re-
sulted and ten days later applicant was ready to resume work. Payment
of compensation was resisted by defendant on the ground that the disabil-
ity was caused by disease and not by accident and that notice of the injury
was not given within the time prescribed by the Act. Held that the
evidence established the fact of injury as alleged by the applicant and that
the only grounds afforded for apprehension that the disability might- have
chiefly arisen from a -former disorder was applicant's own fear that such
might prove to be the case. Further held that there was no intention to
mislead the employer, for a report had been made to his superior, the
CLAIMS FOR COMPENSATION 771
California
is (was) was injured while in
your service at the time and place and with the result hereinafter
stated:
1. The injury occurred on the. day of ,
19, . . at
2. The cause of said injury was as follows: .
3. The nature and degree of the injury sustained were as fol-
lows:
(and such injury resulted in death on the day of
,19...)-
You will further take notice that the undersigned claims com-
pensation by reason of said injury (death) in accordance with the
provisions of said statute.
Dated the day of , 19. ..
Name of Employe (or dependent.)
Address of Employe (or dependent.)
foreman, fifteen days after the injury, and therefore it was immaterial
that a written notice, as required by law, was not given. The sum of
$43.27 was awarded for 25/7ths weeks, and in addition the failure ofthe
defendant to furnish medical and surgical attention made it liable for
the amount expended, namely, $69.15. Merrill v. General Construction
Company. Cal. Indus. Ace. Bd.
Under § 10 of the Roseberry Act of 1911 it was held that if failure to
serve notice within thirty days after the accident was not due to any in-
tent to mislead the employer, and if he was not in fact misled, the claimant
was not barred from recovery under the act. McAvin v. City Electric Co.,
Cal. Indus. Ace. Bd., March 8, 1912; aff'd by Superior Court.
772 BRADBUBY*S WORKMEN'S COMPENSATION LAW
Connecticut
CONNECTICUT
Form No. 9
Notice of Injury «
(Part B, § 21)
To of :
Name of employer Address of employer
Notice is hereby given that the undersigned, while in your em-
ploy at on the
day of , 191 . . , sustained injuries arising out of and in
the course of his employment as follows: (state nature of injury
in ordinary language).
Compensation is claimed in the interest of
Dated at , Connecticut, this
day of , 19...
Signature of injured employe1.
Address.
By
Agent, Attorney.
This line to be used in case notice is signed by a person
other than the injured.
Witnessed by
Two witnesses should sign.
1 The above notice must be served on the employer as soon as prac-
ticable after the injury but not later than thirty days after the happening
of the accident and during the continuance of incapacity. Part B, § 21.
The above form was prepared by the Compensation Commission of
Connecticut.
v
CLAIMS FOR COMPENSATION 773
Illinois
ILLINOIS
FORM
Notice of injury >
(§24)
To
Name and address of employer.
Please take notice that the undersigned claims compensation
pursuant to the provisions of the Workmen's Compensation Act
of the State of Illinois approved June 28, 1913, by reason of the
injuries specified below occurring in your service to
whose address is (was)
1. Said injury occurred on the .day of ,
19.., at
2. The cause of said injury was as follows:
Compensation is claimed at the rate of ($ )
dollars per week, beginning on the day of ,
19 . . , until disability ceases, (in the case of specific injuries or
death the number of weeks specified in the statute) together with
medical, surgical and hospital attention as provided in said Act.
Dated the day of , 19. ..
Name of workman.
Address of workman.
1 The above notice must be given as soon as practicable after the acci-
dent but not later than thirty days after the accident. In cases of mental
incapacity of the employe the notice must be given within six months after
the accident. It may be served personally or by registered mail addressed
to the employer at his last known residence or place of business. § 24.
The claim for compensation must be made within six months after the
accident. § 24. In death cases see § 7 (f) as to who can claim compensa-
tion.
774 bkadbuey's workmen's compensation law
Kansas
IOWA
FORM
.Notice of injury 1
(§9)
To *
You are hereby notified that on or about the day
of ,19. ., personal injury was sustained by
while in your employ at
(Give name of place employed and point
where located when injury occurred and that compensation will be claimed therefor.)
Signed. .
KANSAS
FORM
Notice of accident 2
To
Name and address of employer.
Please take notice that r whose address
is (was) was injured while
1 The foregoing form of notice is contained in § 9 of the Iowa statute.
The notice must be given within fifteen days after the injury either by the
employe or someone on his behalf, or by the dependents or someone on
their behalf. § 9. Under certain circumstances it may be given within
ninety days after the accident. § 9. The statute provides that no special
form of notice shall be required, but may substantially conform to the
notice given above. The notice must be served in the same way that orig-
inal notices may be served in civil cases and the service may be made by
any person over sixteen years of age. § 9.
2 The above notice must be given within ten days after the accident
and the claim for compensation must be made within three months after
the accident, or in case of death, within six months from the date thereof.
The notice must be served personally or may be served by registered mail.
If the injury causes death the notice should be sent by the person claiming
compensation and it should be stated therein that the injuries caused
death to the workman whose name is specified. § 22.
CLAIMS FOR COMPENSATION 775
Massachusetts
in your service on the day of , 19. ., at
That the cause of said injury was as follows:
That the nature of said injury is as follows:
(and resulted in death on the
day of , 19 . . ) and that compensation is
demanded pursuant to Chapter 218 of the Laws of 1911, and
amendments, commonly known as the Workmen's Compensation
Act.
Dated the day of , 19. . .
Name of workman (or person claiming
compensation).
Address.
MARYLAND
"§ 7. The contract may provide that upon penalty of
forfeiture of the benefits of the insurance, the employe shall
give reasonable and timely notice to his employer, to be
fixed by the terms of this contract, of any accident which
may entitle him to the benefit of such insurance."
MASSACHUSETTS
FORM
Notice of injury 1
(Part II, §§ 15, 16 and 17)
This is to notify you .
Name of employer, or insurance association or company.
that on the day of , 19. . , at about
. . . o'clock, ,1 received personal injury while in your employ
a.m. or p.m.
i The above form was prescribed by the Industrial Accident Board of
Massachusetts. The notice must be given to the employer or to the insur-
ance company insuring the employer as soon as practicable after the
happening of the accident. Part II, §§ 15,. 16 and 17.
776 bradbury's workmen's compensation law
Massachusetts
in the city (town) of in the
Name or description of building or place of employment.
and that the accident was caused to
me by reason of . . . ■.
Describe cause of injury.
Name of employe.
City or town.
Address
Street and number-
Claim for compensation for injury 1
(Part II, §§ 15 and 23)
This is to notify you
Name or association or company with which employer is insured.
that I claim compensation from you under the workmen's compen-
sation act, chapter 751, Acts of 1911, and amendments thereto, for
personal injury sustained while in the employ of
Name of employer.
Of ,
Street and number. City or town.
The time of my injury was
Here state date and time of day as near as possible.
The place of injury was
State name or description of building, or place, where injury was sustained.
1 The above form of claim was prescribed by the Massachusetts Indus-
trial Accident Board. The original claim should be filed with the Indus-
trial Accident Board and may be sent by mail. At the time of filing, a
copy thereof should also be sent by the employe to the insurance company
in which his employer is insured. The claim should be made within six
months after the injury. Part II, §§ 15 and 23. If a claim for serious and
wilful misconduct of the employer, or of any person regularly entrusted or
exercising the powers of superintendence is made, such a claim should be
stated in the foregoing notice,
CLAIMS FOB COMPENSATION 777
Massachusetts
The cause of my injury was
. 'Describe cause of injury.
The nature of my injury is as follows:
Describe injury with such exactness as possible.
Signature of injured employe.
Street and number.
City or Town.
Date of making this claim.
"An employ^ making a claim for compensation under
this act shall furnish the association or insurance company
against whom said claim is made with a copy thereof by
mail or otherwise forthwith, upon the filing of the same
with the Industrial Accident Board. This rule shall be
without prejudice to any rights acquired by the filing of
said claim with the Board under the provisions of Part
II, section 23, chapter 751 of the Acts of 1911, and amend-
ments thereto, or by other provisions of said act." Rule
No. 4, Mass. Indus. Ace. Bd.
778 bradbury's workmen's compensation law
Michigan
MICHIGAN
FORM
Notice to employer of claim for injury l
(Under Act No 10 of Public Acts Extra Session 1912)
(Employers' Liability and Workmen's Compensation Law)
(Part II, §§ 15, 16, 17 and 18)
To :;
Write name of employer plainly on above line.
Write address of employer plainly on above line.
You will take notice that according to the provisions of Act
No. 10 of Public Acts, Extra Session 1912
hereby makes claim for compensation
for injury received by ... ,
while in your employ.
Name of employe"
Poetomce address
The accident occurred the day of ,
191 , at , Michigan.
The nature of the injury is as follows:
Signature .
Address. . .
Dated at
this day of , 191
1 The foregoing form of notice was prepared by the Michigan Industrial
Accident Board. It should be made out in duplicate and one should be
served personally or sent by mail to the employer and the other copy
should be sent to the Industrial Accident Board, Lansing, Michigan, within
thirty days after the accident. Part II, §§ 15, 16, 17 and 18.
CLAIMS FOB COMPENSATION 779
Nebraska
MINNESOTA
FORM
Notice '
(§§ 19 and 20)
" You are hereby notified that an injury was received by (Name)
who was in your employ at (Place)
while engaged as (kind of
work) on or about the day of
, 19 . . , and who is now located at (give town, street
and number) that so far as now known, the
nature of the injury was and that compensation
may be claimed therefor.
(Signed)
Giving address.
Dated , 19. .."
NEBRASKA
FORM
Notice of injury 2
(Part II, § 33)
To
Name and address of employer.
Please take notice that whose address
is (was) ....:: was injured
1 The foregoing form is contained in the statute. It should be served
within fourteen days after the occurrence of the injury, but may be served
within ninety days under certain circumstances. Part II, § 19. The no-
tice may be served personally or by registered mail. § 20.
2 The above notice must be given as soon as practicable after the hap-
pening of an accident and must be given within six months after the
occurrence, except in the case of the death of the employe, or his physical
or mental incapacity, in which event it must be given within six months
after the death or the removal of such physical or mental incapacity.
§ 33. The notice may be served personally or by leaving it at the residence
or place of business of the employer or sending it by registered mail. § 33.
Claims for compensation must be made within one year after the accident.
§38.
780 bradbury's workmen's compensation law
New Hampshire
while in your service on the day of
19 ,at
and the cause of said injury was as follows:
If the injury caused death, ao state.
Notice of said injury (or death) is hereby given pursuant to the
statute known as Ihe Workmen's Compensation Act of the State
of Nebraska.
Dated the day of. , 191
{Signature and address of person injured or of a person in his behalf or in the event of his death,
by his legal representative or a person in his behalf.)
NEVADA
The application for compensation must be filed with the
Department within one year after the day upon which the
injury occurred, or the right to compensation accrued.
§ 34 (d). Blanks are furnished by the Department for all
applications for compensation against the said fund.
NEW HAMPSHIRE
FORM
Notice of accident 1
To
Name and address of employer.
Please take notice that whose address is
(was) was injured while employed by you on
the day of , 19. . at
(■■••)
(and said injuries resulted in death on the day of
1 The above notice should be given as soon as practicable after the hap-
pening of the accident and before the workman voluntarily leaves the em-
ployment in which he was engaged when the injury occurred and during
his disability. .§ 5. The claim for compensation should be made within
six months from the occurrence of the accident but may be made at a
later date under certain circumstances specified in the statute. It may be
served personally or by registered mail. § 5.
CLAIMS FOR COMPENSATION 78 J.
New Jersey
, 19. .) and claim is hereby made for compensation
by reason of said injury (death) pursuant to the Act of the Legis-
lature of New Hampshire known as the Workmen's Compensation
Act.
Dated the day of , 19. .
Name of workman, or in case of death
name of person making claim.
Address of claimant.
NEW JERSEY
FORM
Notice of injury *
(§ 2, subd. 15 and 16)
To (name of employer) :
You are hereby notified that a personal injury was received by
(name of employe1 injured), who was in your employ at (place)
while engaged as (nature of employment), on or about the ( )
day of ( ), nineteen hundred and ( ), and
that compensation will be claimqd therefor.
Signed,
( )•
1 The foregoing form is set forth in the statute itself. § 2, subd. 16.
The notice should be given within fourteen days of the occurrence of the
injury, but may be given at a later date as specified in the statute. § 2,
subd. 15. The notice may be served personally on the employer or upon
any agent of the employer upon whom a summons may be served in a
civil action or by sending through the mail. Sec. § 2, subd. 16.
A workman who was carrying a heavy article fell on June 24, 1912, and
the foreman in charge of the work had knowledge of the fall. Disability
did not result, however, and the man continued at work. On February 4,
1913, he sent notice to his employer of disability alleged to have been the
result of the fall. It was held that inasmuch as the foreman had knowl-
edge of the injury the notice was sufficient under the statute, but compen-
sation was denied on the ground that the disability was not due to any
injury received from the fall. Bergemann v. Schwarzenbach Huber & Co.
(Morris Common Pleas), 36 N. J. Law J., 209.
782 bradbury's workmen's compensation law
New York
NEW YORK
FORM
Notice of injury *
(§ 18)
To...., %
Name and address of employer.
To the Workmen's Compensation Commission, Albany, N. Y.
Notice is hereby given, pursuant to the Workmen's Com-
pensation Law of New York of the injury (and death) of an
employ^ of on the date, at the place and under
the circumstances hereinafter stated.
(1) The name and address of said employe1 is
(2) He was injured on the day of ,
19. . (and said injury resulted in his death on the
day of , 19..)
(3) The nature of said injury was as follows:
(4) The cause of said injury was as follows:
Dated the day of , 19. .
Name of person giving notice. '
Address of person giving notice.
1 The above notice must be given to the Commission and to the em-
ployer within ten days "after disability" and in case of death of the em-
ploye resulting from such injury within thirty days after such death.
The notice may be given by any person claiming to be entitled to compen-
sation or by someone in his behalf. It may be sent to the Commission by
registered mail. It must be served on the employer by delivering it to
him personally or by sending it by registered mail addressed to the em-
ployer at his or its last known place of residence, but if the employer is a
partnership the notice may be given to any one of the partners, and if
the employer is a corporation it may be given to any agent or officers
thereof upon whom legal process may be served, or to any agent in charge
of the business in the place where the injury occurred. "The failure to
CLAIMS FOR COMPENSATION 783
Ohio
OHIO
The Act provides that the Industrial Commission shall
prescribe the notices and the forms thereof which shall
be given in all cases of accident, etc. § 1465-44; § 8 of
Act of 1911, which remains unrepealed by the Act of 1913.
By § 1465-74 of the Act as renumbered and which is § 27 of
the Act of 1913, it is provided that in cases where the em-
ployer carries his own risks that the Industrial Commission
shall prescribe the notices to be given. By Rule 13 of the
Rules of the Industrial Commission relating to the ascer-
tainment of the amount of compensation, etc., it is provided :
"The Commission will prepare and furnish free of charge all
proper forms required by these rules and the provisions of the
Compensation Act and require such forms to be used in
all instances where prescribed."1
give such notice, unless excused by the Commission, either on the ground
that notice for some sufficient reason could not have been given, or on the
ground that the State Fund, insurance company, or employer, as the case
may be, has not been prejudiced thereby, shall be a bar to any claim
under this chapter." § 18.
1 By Rules 4 and 5 of the State Liability Board of Awards (now In-
dustrial Commission) it was provided as follows:
"Rule 4- — Injury not resulting in death, notice of. An employe who has
been injured in the course of his employment and who contemplates filing
an application for an award, shall, within one week from receiving such
injury, notify or cause notice to be given the Board of the time, place and
nature of his injury and the name of his employer. Forms of such notices
can be obtained from the employer. Such notices should be mailed to
'State Liability Board of Awards, Columbus, Ohio.'
"Upon receiving such notice the Board forthwith will mail to the in-
jured employe proper forms and blanks for his use in perfecting his claim,
and notify the employer thereof. Unless such notice is given, no applica-
tion for an award will be considered by the Board."
"Rule 5. — Injury resulting in death, notice of. When death results from
an injury received by an employd in the course of his employment, the
provisions of Rule 4 shall apply, except that notice of death must be given,
by the attending physician, undertaker, employer, executor, administrator,
or a beneficiary, within one week from the time of death."
784 Bradbury's workmen's compensation law
Rhode Island
By Rule 9 of the Industrial Commission it is provided
that if the employer and employe^ or dependents, fail to
arrive at an agreement as to the amount of compensation
payable, within thirty days after the injury or death, one
party may file an application with the Commission to have
the question determined, of which application the other
party shall receive notice.1
OREGON
Claim for compensation must be made on blanks fur-
nished by the commission and the form of said blanks is
entirely within the jurisdiction of the commission.
RHODE ISLAND
FORM
Notice of injury =
(Art. 2, §§ 17, 18, 19, and 20)
To ,
Name and address of employer.
Please take notice that a claim for compensation is hereby made
1 In a case of the death of a workman leaving a widow and minor child,
it was held not necessary for the application for compensation to be filed
by the administrator or executor of the deceased; that the minor child
being under disability of infancy and in the custody of her mother that
part of the compensation apportioned to such child would be made payable
to the mother for the use of the child. Re Laura M. Shaffer, Claim No. 41,
Ohio St. Lia. Bd. Awd., June 14, 1912.
2 The notice must be given within thirty days after the happening of
the injury and the claim for compensation must be made within one year
after the injury, or in case of death of the employe, or his physical or
mental incapacity, within one year after death or the removal of such
physical or mental incapacity. Art. II, § 17. The notice must be signed
by the person injured or by a person in his behalf or in the event of his
death, the legal representative or by a dependent or by a person in behalf
of either. Art. II, § 181 The notice must be served by mail as stated in
Art. II, § 19. Notice may be dispensed with in certain instances. See
§20.
CLAIMS FOR COMPENSATION 785
Texas
pursuant to the law of Rhode Island of 1912, known as the Work-
men's Compensation Act, by the employe* who was injured in your
service as hereinafter specified.
(1) Said injury occurred on the day of ,
19...
(2) The cause of said injury was as follows:
(3) The nature of said injury was as follows:
(4) The name and address of the person injured was as follows:
Dated the day of . . . , 19 . .
Name of claimant.
Address of claimant.
TEXAS
FORM
Notice of injury
(Part II, § 4a)
This is to notify you .
Name of employer, or insurance association or company.
that on the day of , 19. ., at about
.o'clock, ,'. ., I received personal injury while in your em-
a.m. or p.m.
ploy in the of in the
City town county
and that the accident
Name or description of building or place of employment.
1 The foregoing form was prescribed by the Industrial Accident Board
of Texas. See Part 2, § 4 (a). The notice must be given as soon as prac-
ticable after the injury. Part 2, § 4 (a).
50
786
bradbury's
workmen's
COMPENSATION
LAW
Texas
was
caused to
me by
reason of
Describe cause of
injury.
Name of employe.
Address
City or town.
Street and number.
FORM
Claim for compensation for injury '
(Part II, § 4 a)
This is to notify you
Name of employer or the association or company with which employer is insured.
that I claim compensation from you under the Employers' Liabil-
ity Act for personal injury sustained while in the employ of
, of
Name of employer. Street and number.
The time of my injury was
City or town.
Here state date and time of day as near as possible.
The place of injury was
State name or description of building, or place, where injury was sustained.
1 The foregoing form was prescribed by the Industrial Accident Board
of Texas. The original claim should be filed with the Industrial Accident
Board and may be sent by mail to the Board at Austin, Texas. At the
same time of filing a copy should be served on the employer or on the
insurance company which insures the compensation payments of the em-
ployer. The claim must be made within six months after the occurrence
of the injury or in case of the. death of the employe. or his physical or
mental incapacity within six months after death or the removal of such
physical or mental incapacity. Part 2, § 4 (a). If it is contended that the
injury was caused by the violation by the employer of any statute enacted
for the safety of employes the facts should be stated in the foregoing
notice.
CLAIMS FOR COMPENSATION 787
West Virginia
The cause of my injury was
Describe cause of injury.
The nature of my injury is as follows:
Describe injury with such exactness as possible.
Signature of injured employ^.
Street and number.
City or town.
Date of making this claim.
WASHINGTON
Claims for compensation against the State Fund must
be made on blanks furnished by the Department. See § 12.
WEST VIRGINIA
The application for compensation must be made on
forms prescribed by the Department to the State Insur-
ance Fund. See § 39.
788 BRADBURY'S WORKMEN'S COMPENSATION LAW
Wisconsin
WISCONSIN
FORM
Notice to employer of claim for injury under Workmen's
Compensation Act 1
(§ 2394-11)
To'.
Write name of employer plainly on above line.
Write address of employer plainly on above line.
You will take notice that according to the provisions of the
Workmen's Compensation Act, Laws of Wisconsin
hereby makes claim for compen-
sation for injury received by while in your employ.
Name of employe'
Post Office Address . . . . :
The accident occurred the day of ,
191 . , at Wisconsin.
1 This notice should be filled out by injured employe or some one in his
behalf. In case of death of the employe the notice is to be filled out by
the dependent. The notice should be served within 30 days of accident on
the employer by delivering a copy of the above notice to the employer
personally or by registered mail. Fill out in duplicate. Hand or mail one
copy to the employer; mail the other copy to the Industrial Commission,
Madison, Wis. The foregoing is a note to the blank as furnished by the
Industrial Commission. The notice must be served within thirty days
after the accident unless excused as provided in § 2394-11.
A workman employed to assist in unloading bridge iron had his ankle
bruised by a falling beam. He did not claim compensation until four
months later when he claimed permanent disability for six weeks. The
employer, being a municipal corporation, defended the claim on the
ground, among others, that it was not made within thirty days. The Com-
mission held that the delay in making the claim was not because the work-
man intended to defraud and mislead and that the employer had not in
fact been misled and compensation was granted in the amount of $33.14
for six weeks' disability. Thomas J. Brown, v. City of Mauston, Wis.
Indus. Com., Feb. 29, 1912.
CLAIMS FOR COMPENSATION 789
Wisconsin
The nature of the injury is as follows:
Signature .
Address. .
Dated at
this day of
CHAPTER XV
ADMINISTRATION AND PROCEDURE
Page
ARTICLE A— Introduction 791
Page
1. Various methods of ad-
ministration 791
2. Liberal rules as to
procedure 795
3. Right of workman to
take out letters of
administration on es-
tate of deceased em-
ployer 795
4. Specifying amount when
making claim for com-
pensation 795
5. Necessity of appoint-
ment OF GUARDIAN AD
litem when interests
of incompetent in-
volved 795
6. Agreement to pay com-
pensation IS NOT A CON-
sent to submit to
arbitration 796
7. Agreement for compen-
sation BAR TO ARBITRA-
TION proceedings 796
8. Effect of agreement to
pay compensation
"during incapacity". 797
9. Award "during total or
partial incapacity".. 797
10. Amending pleadings by
arbitrator 797
11. Burden of proving the
790
injury was caused by
accident IS ON the
workman 797
12. Inferences in the ab-
sence of direct proof . 798
13. Burden of proof as to
serious and wilful
misconduct 800
14. Evidence 800
15. Physician's certificate
as evidence 801
16. Sufficiency of finding
of incapacity 801
17. Finding on question of
fact as to which
there is any evidence
to support 802
18. Suspensory award 804
19. Award to terminate at
specified date in fu-
TURE 804
20. Admission in answer
that compensation has
been paid amounts to
admission of claim
MADE 804
21. Apportioning compensa-
t i o n among depend-
ents; PROCEDURE 804
22. Enforcing payment of
award; body execu-
tion 804
ADMINISTRATION AND PROCEDURE 791
Various methods of administration
Page Page
23. New trial; arbitrator 25. What amounts to "re-
CANNOT grant 805 covery" of compensa-
24. Signing receipts by tion 805
workmen 805 26. Offset of overpayment
of compensation 805
ARTICLE B — Digests of Various Statutes, with Notes and
Forms 806
Page
Arizona 806 Nevada 863
California 806 New Hampshire 867
Connecticut 814 New Jersey 867
Illinois 815 New York 873
Iowa 834 Ohio 874
Kansas 835 Oregon 878
Maryland 836 Rhode Island 878
Massachusetts 836 Texas 879
Michigan 842 Washington 881
Minnesota 856 West Virginia 881
Nebraska 863 Wisconsin 887
ARTICLE A— INTRODUCTION
1. Various methods of administration.
The administration and procedure under no two of the
compensation acts of the American States are exactly alike.
The contrast in many instances is very great. In fact, the
revolution wrought by the adoption of the compensation
principle is nowhere more strongly emphasized than in the
manner in which controversies growing out of claims for
compensation are determined. A very strong tendency has
developed to abolish entirely trial by jury in all such dis-
putes. Moreover, in some cases, the ordinary courts have
been abolished as well, so far as such controversies are con-
cerned. A very long step has been taken in this direction,
with a suddenness which must cause a shock to all those
who have been educated to the belief that the jury system
was the principal remaining safeguard to the rights of the
792 bradbuby's workmen's compensation law
Various methods of administration
average citizen, as against the encroachment of so-called
special privilege.
Arguments which might, without exaggeration, be termed
a hue and cry, have been advanced in condemnation of
judges and judge-made law and have been coupled with
the demand that both judges and judicial decisions shall
be subject to recall by popular vote. The most remarkable
part of the present movement is, that heretofore employers
and lawyers defending master and servant negligence cases
invariably have been more fearful of the verdict of a jury
than of the decision of any court or judge. It has become a
common-place remark, in such litigations, that if the case
went to the jury a judgment would be rendered in favor of
the employed Yet in this class of cases alone trial by jury
has been abolished. To take its place new courts (although
they are not called courts) have been created with ap-
pointed judges and with powers more extensive than ever
before have been possessed by executives, administrative
officers or bodies, or judicial tribunals in America. Ob-
viously, this is a big step. Whether it is in advance or back-
wards time only can tell.
Curiously enough, New York, which is the most important
State in the Union as regards population, manufacture and
wealth, has taken the longest step on this heretofore un-
trodden path. Acting, apparently, on the authority given
by the people themselves, in the Constitutional amendment
of 1913, the Legislature has created a body called a Work-
men's Compensation Commission, with important executive,
administrative, judicial, and even legislative functions.
As to each of these functions its decision is made supreme
and absolutely final, on all questions of fact, and on many
questions of law. It may create deputies, without limit as to
number, whose decisions, when approved by their creator,
are equally final. (§§ 61 and 64.) In exercising such vast
powers these Commissioners "shall not be bound by the
common law pi statutory rules of evidence or formal rules
ADMINISTKATION AND PROCEDURE 793
Various methods of administration
of procedure, except as provided by this Chapter." (§ 68.)
The Commission may make rules which will have the effect
of statutes so long merely as they are "not inconsistent
with this chapter;" relating to nine specified matters, in-
cluding "The nature and extent of the proofs and evidence,
and the method of taking and furnishing the same, to establish
the right to compensation;" the "method of making investi-
gations, physical examinations and inspections;" "the con-
duct of hearings, investigations and inquiries, " and "carrying
into effect the provisions of this chapter." (§ 67.) And the
decisions of the Commission made under the Act proper, and
under rules having the force of statutes made by the Commis-
sion itself, "shall be final on all questions of fact." (§ 20).
Moreover, it not only enacts the law, in many important par-
ticulars, but it is at once client, judge and jury, and in this
triple capacity decides questions of fact in controversies to
which it is itself a party and makes determinations which no
power on earth can question, so far as the facts are concerned.
This Commission also collects a State insurance fund.
It determines the premiums to be charged and the reserves
necessary to pay losses. It appoints all assistants. When a
claim is made against it, as the administrator of the fund,
it hears and determines all questions arising on such a con-
troversy, under rules of a statutory nature made by itself
and which can be changed at will, and here again, its de-
cisions on all questions of fact are absolutely final.
It is a highly political institution, because it will distribute
more patronage, probably, than any other body in the State.
It has power to create an army of public officers and fix their
remuneration and tenure of office. The Commission has
many more important powers and duties which it is unnec-
essary to here enumerate.
So while abolishing trial by jury and taking away from the
regular courts of record all jurisdiction over compensation
cases, a new court has been created, the workings of which
will be watched with very great interest.
794 bradbury's workmen's compensation law
Various methods of administration
Many constitutional questions are involved in this new
movement which it would not be profitable to discuss in
this place.
Many of the other States have established industrial
boards or commissions, with more or less extensive powers,
but in none of the States has the legislature gone so far as it
has in New York*n this direction. Doubtless, it is necessary,
or at least advisable, that any compensation law should be
supervised by some public body. It has been complained
in New Jersey, for example, that this was the one weakness
of that statute. That is, that there was no one whose duty
it was to see that the compensation payments were properly
made. Commissioner Bryant of the Labor Department of
New Jersey has stated that in investigations which his
Department conducted a number of cases were found in
which inadequate payments were made.
The remedy, however, under the New Jersey law, for cases
of this character seems to be entirely adequate. If the em-
ployer has failed to make the payments which the law re-
quires, any receipt or release which has been taken is of no
avail in a proceeding brought by the employe to have the
compensation determined. The employe' does not have to
show that fraud has been practiced, but merely that pay-
ments have not been made as required by the statute. So
far as the disclosures made up to the present time are con-
cerned, the evil which is to be met, does not seem to justify
the elaborate and expensive system which has been estab-
lished in New York to meet it. As employes become more
and more familiar with the law, cases of inadequate pay-
ment will be found to be very rare, under the rule in New
Jersey where any agreement can be examined and set aside
on the ground merely that the payments were not as great
as the statute required.
In a few of the States, as already indicated, controversies
are determined by judges of the local courts without a jury.
The proceeding is considered as one in equity and is deter-
ADMINISTRATION AND PROCEDURE 795
Guardian when interests of incompetent involved
mined expeditiously and without unnecessary technicality.
The same procedure prevails under the British and Canadian
acts. In Article B in this Chapter will be found an outline of
the practice in each State. In the remainder of this Article
is discussed certain general principles relating to procedure
which are applicable in the absence of special statutory
provisions to the contrary.
2. Liberal rules as to procedure.
Documents in arbitration proceedings under the Act
should not be treated with the nicety and strictness of plead-
ings in judicial proceedings in the higher court. Lowe v.
Myers & Sons (1906), 2 K. B. 265; 8 W. C. C. 22.
3. Right of workman to take Out letters of administration
on estate of deceased employer.
Where an employer against whom compensation had
been awarded died, and his next of kin refused to take out
letters of administration, it was held that the workman
who was entitled to compensation could apply to have such
letters taken out. Matter of William Byrne, Deceased (1910),
44 Irish L. T. 98; 3 B. W. C. C. 591.
4. Specifying amount when making claim for compensa-
tion.
It is unnecessary, in making a claim under the Work-
men's Compensation Act, to specify the amount claimed.
Thompson v. fl. W. Gould & Co. (1910), A. C. 409; 103 L. T.
81;3B.W.C. C.392.
5. Necessity of appointment of guardian ad litem when in-
terests of incompetent involved.
Proceedings under the Workmen's Compensation Act in
respect of the death of a workman, were brought on behalf
of A, a daughter, who had been residing with him and acting
as his housekeeper, and B, his wife, who was then, and had
796 bhadbuey's workmen's compensation law
Agreement for compensation bar to arbitration proceedings
been for many years, an inmate of the district lunatic asylum.
The matter was settled as between the employer and A by
the employer agreeing to pay £100, which was lodged in
court. No guardian ad litem to B having been appointed, an
application was made by the resident medical superintendent
of the asylum of which B was an inmate, to have the said
sum of £100 apportioned between A and B, on the bases
of both of them being dependents of the deceased. It was
held on appeal that as no guardian ad litem had been ap-
pointed for the lunatic neither the respondent nor the lunatic
were before the court and there was no jurisdiction to make
any order. Kerr v. Stewart (1909), 43 Irish L. T. 119;
2 B. W. C. C. 454.
6. Agreement to pay compensation is not a consent to sub-
mit to arbitration.
On an application to register a memorandum of agree-
ment to pay compensation the judge has no power to alter
the amount and treat that agreement as a submission by the
employer to pay any sum the judge thinks reasonable. Hall
v. Furness, Withy & Co. (1909), 3 B. W. C. C. 72. When a
memorandum of agreement has been presented to be re-
corded, the judge has no power to do more than declare
whether or not the memorandum is one which ought to be
recorded and he has no power to make any substantive order
dealing with the whole matter, or to treat the agreement as
a submission by the employer to pay any sum which the
judge under the circumstances may think just and proper.
Mortimer v. Seeretan (1909), 100 L. T. 721; 2 B. W. C. C.
446.
7. Agreement for compensation bar to arbitration proceed-
ings.
An implied agreement for compensation is a bar to pro-
ceedings in arbitration. Busby v. Richardson (1901), 3
W. C. C. 54.
ADMINISTRATION AND PROCEDURE 797
Burden of proving injury caused by accident is on the workman
8. Effect of agreement to pay compensation " during in-
capacity."
Where an agreement has been entered into, whereby
the employers agree to pay compensation "during the time
of the incapacity of the workman," and the employers
thereafter cease payments, the employers may show in any
proceeding by the workman to recover compensation for the
period subsequent to the time of suspension of payments,
that the incapacity ceased when the payments were dis-
continued. Ibrahim Said v. J. H. Welsford & Co. (1910),
3 B. W. C. C. 233.
9. Award " during total or partial incapacity."
It is improper to make an award "to continue during
total or partial incapacity" as it is improper to attempt to
give at the same time compensation both for the "ascertained
total incapacity and the unascertained future partial in-
capacity." Higgins v. Poulson (1912), 5 B. W. C. C. 340.
10. Amending pleadings by arbitrator.
Under the British Columbia Compensation Act of 1902
an arbitrator has the same power to amend pleadings in the
proceeding as a judge has in a civil action. Moore v. Crow's
Nest Pass Coal Company (1910), 15 Br. C. R. 391; 4 B. W.
C. C. 451.
11. Burden of proving the injury was caused by accident
is on the workman.
A collier died of apoplexy during work hours in a mine.
The majority of the doctors said that his arteries were in
a very diseased condition, and that apoplexy might have
come upon him when asleep in bed, or when walking about,
or when over-exerting himself. There was no evidence that
the apoplexy came upon him when he was incurring a strain.
It was held that as the evidence as to the cause of death was
equally consistent with an accident, and with no accident,
798 bbadbury's workmen's compensation law
Inferences in the absence of direct proof
the applicants for compensation had not discharged the onus
of proving it, which was upon them. Barnabas v. Bersham
Colliery Co. (1910), 102 L. T. R. 621; 3 B. W. C. C. 216.
Where a bus driver fell from the bus and there was conflicting
medical evidence as to the cause of death, it was held that
the burden was on the dependent to prove that death was
caused by accident, and as this burden had not been sus-
tained compensation was refused. Thackway v. Connelly and
Sons (1909), 3 B. W. C. C. 37. In the last-mentioned case
the court laid down the rule, citing several other decisions
that it is incumbent upon the plaintiff to make out that the
accident in respect of which compensation is claimed, arose
out of and in the course of the injured man's employment,
not upon the employer to prove the contrary.
12. Inferences in the absence of direct proof.
Even though there is no direct evidence that an injury
to a workman arose out of and in the course of his employ-
ment an inference to this effect may be drawn where the
known facts are more consistent with the theory that the
injury did so arise than with the theory that the accident
occurred in some other manner. Mitchell v. Glamorgan Coal
Co. (1907), 23 T. L. R. 588; 9 W. C. C. 16. In the case
last cited the workman, a miner, returned home in his work-
ing clothes, with one finger crushed. The applicant for
compensation dressed the wound and the workman returned
to work for a few days when blood poisoning set in and he
died. The court held that while it was possible that the work-
man was injured on his way home the court would be justified
on the facts stated to draw the inference that the workman
was injured in the course of his employment.
A man of seventy was employed at an undertaker's,
part of his duty being to lift coffins. He went to work one
day apparently well, and on his return home complained to
his wife of having been hurt that day; there were marks
upon his side and chest, and his leg was swollen. He died
ADMINISTRATION AND PROCEDURE 799
Inferences in the absence of direct proof
about a week afterward, from pneumonia supervening on
pleurisy caused by injury. There was no direct evidence
showing that an accident had been sustained by the deceased
in the course of his employment. It was held that there was
evidence to support the inference that the man died from
accident. Wright v. Kerrigan (1911), 45 Irish L.1 T. 82;
4 B. W. C. C. 432. In this case one of the judges said as to
the admissibility of statements made by a deceased to his
doctor, with regard to his bodily injuries and their immediate
cause: "Such statements are invariably admitted on various
grounds, the chief of which is that there is no other possible
evidence. Those statements made, not necessarily to a
doctor, but to any person, as to bodily injuries, are ad-
missible."
The chief officer of a steam vessel fell overboard be-
tween 7 and 8 a. m. on a fine morning, at a time when he
was on duty and in charge of the vessel on deck. No one
saw him fall overboard. Before 7 a. m. and during his
watch, which commenced at 4 a. m., he had gone below com-
plaining of a headache and giddiness, and had taken a dose
of castor oil, but had returned to his duty on deck. The
County Court judge, in the absence of direct evidence as to
how the accident happened, inferred that it arose out of,
as well as in the course of the employment. It was held
that the judge was justified by the balance of the probability
in drawing this inference. Owners of Steamship "Swansea
Vale" v. Rice (1911), 104 L. T. 658; 4 B. W. C. C. 298.
The fact of a seaman's disappearance from his vessel,
and his unexplained drowning, does not raise a prima facie
inference that he met with an accident arising out of as well
as in the course of his employment. A sailor having gone on
deck from his cabin in the course of his employment on a hot
night for the purpose of getting some fresh air, disappeared,
and the next day his body was found in the tidal basin close
to the ship. It was held that the applicant had not complied
with the onus resting upon her of proving that the accident
800 bradbury's workmen's compensation law
Evidence
arose out of as well as in the course of the employment, and
she was not entitled to compensation. Marshall v. Owners
of Ship "Wild Rose" (1909), 100 L. T. 739; 2 B. W. C. C. 76.
A workman received an injury in the course of his employ-
ment, which necessitated the amputation of one of his fingers.
He was put under anaesthetics and the finger was amputated.
As he was recovering from the effects of the anaesthetics
the surgeons decided to remove a bad tooth of which the
workman had complained; further anaesthetics were ad-
ministered, and an unsuccessful attempt was made to re-
move the tooth. The workman shortly afterwards died.
It was held that it was as probable that death resulted from
a spasm induced by an attempt to swallow oozing blood in
his mouth, as that it resulted from the anaesthetic for the
first operation, and consequently that the widow had not
discharged the onus which rested upon her of proving that
the workman's death resulted from his injury by the accident.
Charles v. Walker (1909), 25 T. L. R. 609; 2 B. W. C. C. 5.
A sailor on board ship in a harbor went on deck late at
night to get some fresh air. He was found dead in the water
in the morning. It was held that the mere fact of a seaman
disappearing from his ship and being found drowned along-
side is not sufficient to discharge the onus of proving that
the accident arose out of the employment. (House of Lords) ,
Marshall v. Owners of Ship "Wild Rose" (1910), 3 B. W. C.
C. 514.
13. Burden of proof as to serious and wilful misconduct.
The burden of proving that the workman has been guilty
of serious and wilful misconduct is on the employer who sets
it up as a reason for refusing compensation. Johnson v.
Marshall, Sons & Co. (1906), 94 L. T. 828; 8 W. C. C. 10.
14. Evidence.
The statement made by an employe" in the absence of
his employer, by a deceased man, as to his bodily or mental
Administration and procedure 801
Sufficiency of finding of incapacity
feelings, are admissible in evidence, but those made as to
the cause of his illness are not admissible in evidence and
where there is no other evidence of an accident arising out
of and in the course of the employment than statements
made by a deceased employe in the absence of his employer,
an award cannot be sustained. Gilbey v. The Great Western
Railway Co. (1910), 102 L. T. 202; 3 B. W. C. C. 135. A
statement made by a deceased workman to a fellow workman
as to the cause of the injury he received, is not admissible
in evidence. Perm v. Spiers & Pond (1908), 1 B. W. C. C.
401. But see Wright v. Kerrigan (1911), 45 Irish L. T. 82;
4 B. W. C. C. 432.
Statements of a deceased man to his physician as to the
cause of an accident are not admissible in evidence. Amys
v. Barton, (1911), 5 B. W. C. C. 117.
Where a workman died from blood poisoning and the claim
for compensation was made by his dependents, it was held
that statements made by the workman to the effect that he
had not met with an accident, could not be received in evi-
dence against the dependents, it being held that the right
of the dependent was entirely separate and apart from the
right of the workman and could not be held to be a declara-
tion against interest in such a case. Tucker v. Oldbury
Urban District Council (1912), 5 B. W. C. C. 296.
15. Physicians' certificates as evidence.
Physicians' certificates are not competent evidence of the
cause of an injury in a proceeding under a claim for com-
pensation. Richards v. Sanders & Sons (1912), 5 B. W. C. C.
352.
16. Sufficiency of finding of incapacity.
A finding that a workman was incapacitated "for work
at his trade of stone breaking by the loss of an eye" was
held to be in effect a finding that he was incapacitated "for
work." Boyd v. Doharty (1908), 46 Scotch L. R. 7V, 2
B.-W, C. C. 257.
51
§02 bradbUry's WOrkMkn's compensation Law
Finding on question of fact as to which there is evidence to support
17. Finding on question of fact as to which there is any
evidence to support.
A workman while engaged in carrying joists for a house,
fainted, and subsequently died. Medical witnesses for the
workman gave it as their opinion that death was due to
rupture of the heart caused by the work, while medical
witnesses for tjje employers gave it as their opinion that
death was due to heart disease. The arbitrator, in conse-
quence of this evidence, submitted the matter to a medical
referee to report. The medical referee reported that the
workman died from disease of the heart. The arbitrator
found that the workman died from a rupture of the heart,
caused by the strain of the work and awarded compensation.
It was held that the arbitrator was not bound to accept the
medical referee's report as conclusive, and that, as there was
some evidence to justify the award, it must stand. Scotstoun
Estate Co. v. Jackson (1911), 48 Scotch L. R. 440; 4 B. W.
C. C. 381 . In the last-mentioned case the court said : ' ' There
is nothing in the statute that in any way absolves the ar-
bitrator from his duty as arbitrator. It is only a report that
he gets from the medical referee, and therefore I think it
would be impossible to affirm that the arbitrator was bound
to accept the medical referee's report or opinion, that is to
say, to accept it as conclusive of the whole matter. He
gets a report, and must weigh that report just as he weighs
the rest of the evidence."
A collier was injured in 1903, and after five months'
absence returned to work; some of the work he then did was
heavier than his work before the accident. He was dis-
missed in 1909, and claimed compensation on the ground
that the consequences of his injury prevented him from ob-
taining work. The medical evidence was conflicting, and
the case was referred to a medical referee, who reported that
the man was fit for full work, but more liable to strains than
before the accident. On this report the County Court judge
made an award of one penny a week. It was held on appeal
ADMINISTRATION AND PROCEDURE 803
Finding on question of fact as to which there is evidence to support
that the matter was a pure question of fact and that there
was evidence to justify the County Court judge's award.
Wells v. Cardiff Steam Coal Collieries Co. (1909), 3 B. W. C.
C. 104.
A workman while engaged in laying drain pipes, was
struck on the back by a stone and was injured. A day
or two afterwards he was seen by a doctor, who diagnosed
pneumonia, and sent him to a hospital, where he remained
for three days, when he insisted on being taken home. He
was accordingly assisted home, a distance of some ten min-
utes' walk, by some neighbors. This was done in spite of
warning by the doctor in attendance at the hospital that
such a course was dangerous to life. He died two days after-
ward. Upon an application by his widow for compensation
the arbitrator found that death resulted from the accident.
It was held that there was evidence to support the finding.
Dunnigan v. Cavan & Lind (1911), 48 Scotch L. R. 459;
4 B. W. C. C. 386.
An injured workman was paid compensation for sixty-
one weeks by his employers. Subsequently the employers
offered the workman light work, which he refused, without
attempting to do it. The County Court judge held that the
workman had acted unreasonably in refusing to go and see
what the work offered was, and that, if he had accepted the
offer and returned to work, by the date of the arbitration
he would have been under no disability. He therefore
stopped compensation, but made a declaration of liability.
It was held on appeal that the decision was on a ques-
tion of fact, and that there was evidence to support it.
Furness, Withy & Co. v. Bennett (1910), 3 B. W. C. C.
195.
Where the County Court judge holds that the workman
is shamming, and there is evidence to support the decision,
this is a question of fact with which the Court of Appeal
will not interfere. Roberts v. Benham (1910), 3 B. W. C. C.
430.
804 BRADBUKY'S WORKMEN'S COMPENSATION I/AW
Enforcing payment of award; body execution
18. Suspensory award.
A suspensory award should be made where, although the
man can work, yet the bad effects of the accident still re-
main. So held, where a seaman was ruptured and a medical
referee reported that he was fit for his full work but must
wear a truss. Griga v. Owners of Ship "Harelda" (1910),
26 T. L. R. 272? 3 B. W. C. C. 116.
19. Award to terminate at specified date in future.
The judge has no power to make an award which shall
continue for a certain length of time and then terminate
on a date mentioned in the future. Baker v. Jewell (1910),
3B7W.C. C.503.
20. Admission in answer that compensation has been paid
amounts to admission of claim made.
A statement in an answer that compensation has been
paid is an admission of fact and evidence that a claim has
been made. Lowe v. Myers & Son (1906), 95 L. T. 35; 8
W. C. C. 22.
21. Apportioning compensation among dependents; pro-
cedure.
Where an employer has agreed with dependents as to the
amount of compensation, arbitration under the Act, naming
the employer as respondent, is not necessary to enable
such amount to be apportioned among the dependents of
the deceased, but the sum should be brought in and lodged
in the County Court to the credit of the applicants and re-
spondents. Harland & Wolff v. Radcliffe (1909), 43 Irish
L. T. 166; 2 B. W. C. C. 374; Rhodes v. Soothill Wood Colliery
Co. (1908), 100 L. T. 15; 2 B. W. C. C. 377.
22. Enforcing payment of award; body execution.
A committal order on a judgment summons can be made
in order to enforce an award. Johnson v. Adshead, 2 W. C.
ADMINISTRATION AND PROCEDURE 805
Offset of overpayment of compensation
C. 158. An award for compensation may be enforced by a
committal order under the Debtor's Act. Bailey v. Plant
(1900), 3 W. C. C. 209.
23. New trial; arbitrator cannot grant.
An arbitrator has no power to grant a rehearing in the
nature of a new trial of an action after he has made his
award, as he sits as an arbitrator and not as a judge. Moun-
tain v. Parr (1899), 80 L. T. 342; 1 W. C. C. 110.
24. Signing receipts by workman.
A workman was incapacitated by accident. His em-
ployers tendered full compensation but asked him to sign
a receipt for the payments to the effect that each payment
involved no admission of liability to pay any compensation
thereafter. The workman refused to sign the receipt, and
brought proceedings for arbitration. The Sheriff-Substitute
dismissed the proceedings on the ground that no question
had arisen. It was held on appeal that there was a question
as to the duration of compensation, and the proceedings
were competent. Freeland v. Summerlee Iron Co. (1912),
49 Sc. L. R. 841; 5 B. W. C. C. 598.
25. What amounts to " recovery " of compensation.
A workman was injured by the negligence of third parties.
He received compensation from his employers expressly re-
serving his rights against the third parties. It was under-
stood that if he succeeded against the third parties he would
repay his employers the compensation he had received from
them. He brought an action against the third parties. It
was held that the workman had not "recovered" compensa-
tion and the action was not barred. Wright v. Lindsay
(1911), 49 Sc. L. R. 210; 5 B. W. C. C. 531.
26. Offset of overpayment of compensation.
When compensation at an agreed rate has been paid to
a certain period, and it appears that the workman was not
806 bradbury's workmen's compensation law
California
entitled to as much compensation as has been actually paid,
the court, nevertheless, will not offset the over-payment
under the agreement so as to credit compensation due at a
subsequent period. Doyle v. Cork Steam Packet Co. (1912),
5 B. W. C. C. 350.
ARTICLE B— DIGESTS OF VARIOUS STATUTES WITH NOTES
AND FORMS1
ARIZONA
No special body is appointed to administer the law in
Arizona. The parties agree upon the compensation payable
and reduce their agreement to writing. If they cannot agree
they can settle it by arbitration or by submission to the
Attorney General of the State. If either party refuses to
enter into an arbitration, or to submit the case to the Attor-
ney General, then the workman can bring an action in any
of the courts of the State which would have jurisdiction of
an action between the parties. § 75.
CALIFORNIA2
The Act of 1913, which took effect on January 1, 1914,
created an Industrial Accident Commission composed of
1 Manifestly it would be out of the question to repeat in this place
the lengthy provisions of the various acts on the questions of adminis-
tration and procedure. Enough has been included to give an indication
of the plan under each act, with references to the sections of the acts
where the details can be found, in the texts of the acts in Chapter XXIV.
A number of essential forms have also been given, together with the
rules of the various boards and commissions which administer the statutes.,
Most of these boards require that blanks shall be used which they furnish
without cost. Some of the commissions administering State insurance
funds require that such blanks be used in all instances. It would mean
mere padding therefore to reproduce them in this place.
2 The provisions of the act are to be liberally construed with a view
to effect its objects and to promote justice. Christ v. Pacific Telephone
and Telegraph Co., Cal. Indus. Ace. Bd., April 25, 1912.
Until the workman makes a demand on the employer and the employer
ADMINISTRATION AND PROCEDURE 807
California
three members. This Commission has complete charge of
the administration of the Act with power to create a safety
bureau, and a department to administer the State insurance
fund. §§ 3 to 11 inclusive.
Any dispute in relation to compensation is brought be-
fore the Commission by notice and the matter is heard with-
out pleadings. §§ 22, 23 and 24. After the Commission has
made its finding, any party may file a certified copy of the
findings and award with the Clerk of the Superior Court and
judgment must be entered by the Clerk in conformity
therewith. § 26. The decision of the Commission is subject
to review by the courts as provided in §§ 27, 84 and 85 of the
Act.
refuses or neglects to pay compensation there can be no dispute or con-
troversy concerning compensation which gives jurisdiction to the In-
dustrial Accident Board. Christy v. Standard Oil Co., Cal. Indus. Ace. Bd.,
May 10, 1912.
The administration of the act demands the utmost good faith on those
who come under its terms. In many instances the only available evidence
of the nature and extent of the injury is the testimony of the injured
workman and if the workman's testimony be discredited and it clearly
appears that he lacks good faith and that he has made a deliberate at-
tempt to capitalize an old injury the entire claim' should be viewed with
doubt and suspicion. Christy v. Standard Oil Co., Cal. Indus. Ace. Bd.,
May 10, 1912.
The burden of proof is upon the person claiming compensation to
show that both employer and employe1 are subject to the compensation
provisions of the act, that the employ^, at the time of the accident, was
performing service within the scope growing out of and incidental to
his employment, and that the accidental injury was caused by accident.
McAvin v. City Electric Co., Cal. Indus. Ace. Bd., March 8, 1912; aff'd
by Superior Court. Also to prove the nature and extent of his disability
and also the probable loss of earning capacity resulting therefrom. Christ
v. Pacific Telephone & Telegraph Co., Cal. Indus. Ace. Bd., April 25,
1912.
The allowance of an amendment to a pleading rests within the discre-
tion of the Board and amendments should be permitted whenever the
purposes of the act will be forwarded by so doing. Christy v. Standard
Oil Co., Cal. Indus. Ace. Bd., May 10, 1912,
808 bradbury's workmen's compensation law
California
FORM NO. 10
APPLICATION FOR ADJUSTMENT OF CLAIM
INDUSTRIAL ACCIDENT COMMISSION
OF THE
STATE OF CALIFORNIA
Applicant . . ,
vs.
CLAIM NO.
Defendant. . .
The petition of the above-named applicant respectfully
shows to your honorable Commission as follows, to wit:
I
That on the day of , 191.,
was
(Name of persop injured.) (Killed or injured.)
by reason of an accident arising out of and in the course of h . . . .
employment by the above-named '.
(Name of Employer.)
That your petitioner is the
(If applicant is a dependent, state relationship.)
person injured.
II
That a question has arisen with respect to the compensation to
be paid therefor and the general nature of the claim in controversy
is as follows, to wit:
Give the date that employer refused to pay the compensation demanded, and state briefly
the exact matter in dispute, as for example:
(A) Employer denies liability for compensation; or,
(B) A dispute has arisen concerning the amount or duration of
the compensation payable.
ADMINISTRATION AND PROCEDURE 809
California
III
That the following is a statement of particulars relative to this
application:
1. Name of injured employe*
Address
Occupation
2. Name of employer
Address
Place of business
Business address
3. Name and address of all other parties to this application, and
reason such parties are joined
4. Place of accident
5. Nature of work on which injured person was engaged at time
of accident
6. Description of accident and cause of injury
7. State whether or not medical and surgical, etc., treatment re-
quired, and whether furnished by employer or not
8. Name of attending physician
Address
9. Nature of injury
10. Has injured person fully recovered? If so, when?
1 1 . Particulars of disability, whether total or partial, and estimated
duration thereof. If death resulted, so state, giving date of
death ,
12. Average earnings of employe1 prior to accident, including over-
time: $ per week; $ per month; $ per year.
810 bradbuey's workmen's; compensation law
California
13. Amount injured person is earning, or is able to earn in some
suitable employment or business after the accident: $
per week; $ per month.
14. Payment, allowance or benefit received from employer during
period of disability: $ account medical care and at-
tendance; $ per week for weeks' total dis-
ability; $ per week for weeks' partial disabil-
ity.
15. Additional amount claimed as compensation: $ account
medical care and attendance; $ per week for
weeks' total disability; $ per week for
weeks' partial disability.
16. Date of service on the employer of notice of accident
17. If notice not served within thirty days, reason for omission to
serve same
18. If application is filed to adjust claim for death, state name,
address and relationship of all dependents. If to adjust
claim for medical attendance or funeral expenses, state name
and address of all other such creditors and amount of claims,
if known: Name , Address. .......; Name ,
Address ; Name , Address ; Name
, Address
IV
(Here state any further facts that may be desired)
Wherefore your petitioner prays, That the above-named
respondent. . be required to answer this petition, that a time and
place be fixed for hearing hereof and due notice thereof given, and
that upon such hearing, an order or award be made by your Hon-
orable Commission granting such relief as the said applicant . .
may be entitled to in the premises.
Dated at (Signed)
this day of , 191 . . Address
NOTE. — When application ia completed and signed by the applicant, the original, together
with one copy for each respondent, should be filed with or mailed to the Industrial Accident
Commission, Either party may be represented io person, by attorney or other agent,
ADMINISTRATION AND PROCEDURE 811
California
FORM NO. 11
NOTICE OF FILING OF APPLICATION
INDUSTRIAL ACCIDENT COMMISSION
OF THE
STATE OF CALIFORNIA
CLAIM NO. . .
Applicant . . ,
vs.
Defendant. ..
To the above-named defendant
You are hereby notified that the application of
entitled as above to adjust a claim for compensation arising out of
injuries sustained by
the death of
(a copy of which is. attached hereto) has been filed in the office of
the Industrial Accident Commission of the State of California,
Street, , California.
In the event that you desire to make any answer to the said
application your attention is called to the following rules adopted
by this Board, relative to the same, to wit:
" Rule VII — Answer. When any defendant desires to disclaim
any interest in the subject-matter of the claim in controversy, or
considers that the application is in any respect inaccurate or in-
complete or desires to bring any fact, paper or document to the
attention of the Board as a defense to the claim or otherwise, he
must, within ten days after the service of the application, file with
or mail to the Board his answer, setting forth the particulars in
which the application is inaccurate or incomplete and the facts
upon which he intends to rely. A copy thereof must likewise be
served upon each party to the proceedings. Any material allega-
812 bbadbttry's workmen's compensation law
California
tion contained in the application and not controverted in the an-
swer will be deemed to be admitted."
"Rule VIII — Service. Where a pleading or document is
served by mail, it shall, unless the contrary be proved, be deemed
to have been served, at the time when the letter containing the
same would have been delivered in the ordinary course pf post.
Proof of such maiUng shall be prima facie proof of service."
And you are further hereby notified that unless you appear and
answer within ten days after the service on you of this notice, said
Applicant. . will apply to the Board for the relief prayed for.
Witness: Industrial Accident Commission
Of the State of California,
. this day of , 191..
Member — Secretary.
State of California,
City and County of
, being duly sworn, deposes and says: That he is, and
was at the times of the service of the papers herein referred to, a
citizen of the United States, over the age of eighteen years, and
not a party to the within-entitled proceeding; that he personally
served the within notice on the hereinafter-named defendants, by
delivering to and leaving with each of said defendants personally,
in the City and County of , State of California, at the
times set opposite their respective names, a copy of said notice
attached to a copy of the complaint referred to in said notice.
Names of Defendants Served: Date of Service:
Subscribed and sworn to before me
this day of , A. D. 191 . .
Industrial Accident Board
Of the State of California.
ADMINISTRATION AND PROCEDURE 813
California
FORM NO. 12
NOTICE OF HEARING
INDUSTRIAL ACCIDENT COMMISSION
OF THE
STATE OF CALIFORNIA
Claim No. . .
Applicant. .,
vs.
Defendant ...
The People of the State of California Send Greeting to:
Defendant . . ,
You are hereby notified that the application of
entitled as above, to adjust a claim for compensation arising out of
injuries sustained by
the death of
has been set for hearing and will be heard at
on the day of , 191., at o'clock . . .M.,
and you are hereby further notified that in default of your at-
tendance at the time and place above mentioned, the Industrial
Accident Commission of the State of California will proceed to
hear and dispose of the said application in the manner provided
by law.
Witness: Industbial Accident Commission
Of the State of California.
By
Member — Secretary.
Dated at San Francisco, California, this
day of.. ..■■■■, 191..
814 bradbury's workmen's compensation law
Connecticut
CONNECTICUT
The administration of the Act is vested in five Commis-
sioners, one for each Congressional district. All communi-
cations relating to the administration of the Act should be
addressed to the Compensation Commissioner of the dis-
trict in which the controversy arises. The names and
addresses of the Commissioners are as follows:
Fiest District (Hartford County). Commissioner, George B.
Chandler, 209 Pearl Street, Hartford.
Second District (Tolland, Windham, New London and Middlesex
Counties). Commissioner, Dr. James J. Donohue, 748 Main
Street, Willimantic.
Third District (All of New Haven County, except the towns of
Southbury, Middlebury, Waterbury, Wolcott, Oxford, Nauga-
tuck, Prospect, Beacon Falls, Seymour, Ansonia and Derby).
Commissioner, Talcott H. Russell, 42 Church Street, New Haven.
Fourth District (Fairfield County). Commissioner, Edward T.
Buckingham, 1024 Main Street, Bridgeport.
Fifth District (All of Litchfield County and the following towns
in New Haven County; Southbury, Middlebury, Waterbury,
Wolcott, Oxford, Naugatuck, Prospect, Beacon Falls, Ansonia,
Seymour and Derby). Commissioner, Frederic M. Williams,
Lilley Building, Waterbury.
Forms for the administration of the Act are distributed
to the town clerks of the various towns throughout the State
from whom any party in interest may secure the same.
Form No. 11 is an agreement in regard to compensation
between the employer and the employe. Form No. 12 is
an agreement in case injuries result in death. Form No. 13
is a notice from the employer of a failure to agree in regard
to compensation which must be served on the Commis-
sioner. Form No. 14 is a notice from the employe1 of failure
to agree in regard to compensation which must be served
on the commissioner.
The proceedings before a commissioner on a disputed
claim are as specified in Part B, §§ 17 to 27 inclusive.
ADMINISTRATION AND PROCEDURE 815
Illinois
The commission has not issued any rules and states the
reason therefor (in Bulletin No. 1) is that as the Act contem-
plates an informal procedure, without technical pleadings,
the commissioners do not deem it wise at the present time
to issue rules of procedure which in most cases would be
mere paraphrases of the Act.
ILLINOIS l
Under the Act of 1913 an industrial board consisting of
three members is created. §§ 13, 14, 15 and 16.
All questions arising under the Act, if not settled by agree-
ment of the parties, are determined by the Industrial Board.
§ 19. Upon notice being given to the Industrial Board that
parties have failed to reach an agreement notice is sent .to
1 The rules of the Illinois Industrial Board were received too late to put
all of thent in their proper places and therefore they are inserted below:
Rules for Reporting Accidents
All accidents which result in disability continuing for more than six
working days shall be reported to the Board.
All accidents involving the loss of a member shall be so reported.
All accidents causing disfigurement or death shall be reported to this
Board.
Rule 2. Reports of non-fatal accidents, as provided in Rule 1, must be
made to this Board within fifteen days after the date the accident occurs.
Rule 8. Fatal accidents must be reported to the Board immediately.
Rule 4. Reports of accidents shall be made on blank form 45 of the
Illinois Industrial Board.
Rule 5. When the disability of the injured employ^ terminates and also
when the payments of compensation for the loss of a member, or disfigure-
ment, or for death, has been fully made, final receipt, form 42, showing the
date disability terminated and the total amount of compensation paid,
signed by the employ^, or his dependents in the case of death, shall be
filed with this Board.
Rule 6. In cases of permanent. disability reports of compensation paid
accompanied by. receipts therefor on form 43 signed by the injured em-
816 Bradbury's workmen's compensation law
Illinois
the parties to appoint arbitrators and if either party fails
to appoint an arbitrator within seven days, the Board fills
the vacancy. § 19a. Hearings are then held and the deci-
sion of the Arbitration Committee is filed with the Industrial
Board. § 19b. Unless a petition for review is filed by either
party within fifteen days after receipt of a copy of the de-
ploye must be filed*with this Board between the 15th and 25th of each
month.
Rules of Procedure
Rule 7. Notice of Disputed Claim, form 9, accompanied by Application
for Adjustment of Claim, form 10 (10 to be in duplicate), mast be filed
with this Board. Application should set forth with reasonable detail and
certainty the general nature of the claim in controversy, giving such in-
formation as will enable the respondent to know what the subject of the
matter in dispute is.
Rule 8. Upon receipt of Notice of Disputed Claim and Application for
Adjustment this Board will notify both parties to appoint their respective
representatives on a committee of arbitration, and will send to the re-
spondent a copy of the Application for Adjustment of Claim. .The Board
will appoint an agent as chairman of the arbitration committee, and in
the event of failure of either party to appoint such representative on said
committee within seven days after notice the Board will select a suitable
person to fill the vacancy and notify the party for whom such appoint-
ment is made to that effect, as provided in Section 19, paragraph (a).
Rule 9. No person financially interested in the outcome of an arbitra-
tion case will be permitted to act as arbitrator. This includes the agents,
officers and attorneys of the persons so interested.
Rule 10. The hearings of the committee will be had in the vicinity where
the injury occurred after proper notice of the time and place of such hear-
ing shall have been given to each of the parties.
Postponements of such hearings will not be granted. It is therefore
essential that parties have their witnesses ready at the time and place set
for arbitration so as to make their proofs complete. In the event of either
party failing to appear at the time and place set such evidence as may be
introduced by the other party will be admitted and the award will be en-
tered accordingly.
Ride 11. Hearings before the committee of arbitration shall be simple
and informal and proof will be necessary only on the particular subject
in dispute as set forth in the Application for Adjustment of Claim, pro-
vided, that if in the judgment of the chairman of the committee of arbitra-
ADMINISTRATION AND PROCEDURE 817
Illinois
cision the decision of the Arbitration Committee is entered
as the decision of the Industrial Board. The decision of the
Board is conclusive but the Supreme Court has power to
review questions of law involved in any such decision. § 19
(f). Upon presentation of a certified copy of the decision of
the Board to the Circuit Court of the County in which the
accident occurred the court must render judgment in ac-
cordance with the Board's decision. § 19 (g).
The forms for all procedure under the Act are furnished
by the Illinois Industrial Board at Chicago. The more im-
portant forms are inserted below. In most instances, how-
ever, the forms provided by the Board must be used. The
form numbers given are those adopted by the Board for the
forms supplied by the Board.
tion it is necessary to hear evidence on other matters for the purpose of
arriving at a proper decision such evidence may be admitted.
Rule 12. Petitions for lump sum settlement of compensation must be
filed with the Industrial Board.
Petitions must be signed by both parties and set forth the nature and
extent of the injury, or if death occurred must so state. Petitions should
also show the weekly, monthly or annual wage, and total amount of com-
pensation due, and such sum reduced to its present value with annual
rests. The Board will make such investigation as is necessary and set a
date for hearing.
Petitions must show the post office address of both parties, or their
agents.
January 24, 1914.
52
818 bradbury's workmen's compensation law
Illinois
FORM NO. 10
Application for Adjustment of Claim
State of Illinois Industrial Board
- • * ;
Applicant .
vs.
Respondent . . .
The petition of the above-named applicant. . respectfully shows
to your Honorable Board as follows, to-wit:
I
That on the day of , 19. .,
. was by reason of an accident arising
(Name of person injured.) (Killed or injured.)
out of and in the course of h . . . . employment by the above named
(Name of employer.)
That your petitioner is the person injured.
(If applicant is a dependent, state relationship.)
II
That a question has arisen with respect to the compensation to
be paid therefor, and the general nature of the claim in controversy
is as follows: to-wit:
(Give the date that employer refused to pay the compensation demanded, and state briefly
the exact matter in dispute, as for example:
(A) Employer denies liability for compensation, or,
(B) A dispute has arisen concerning the amount or duration
of the compensation payable.)
Ill
That the following is a statement of particulars relative to this
application:
ADMINISTRATION AND PROCEDURE 819
Illinois
1. Name of injured employe-
Address
Occupation
2. Name of employer
Address
Place of business
Business address
3. Names and addresses of all other parties to this application,
and reason such parties are joined
4. Place of accident
5. Nature of work on which injured person was engaged at time
of accident
6. Description of accident and cause of injury
7. State whether or not medical and surgical, etc., treatment re-
quired, and whether furnished by employer or not
8. Name of Attending Physician
Address
9. Nature of injury
10. Has injured person fully recovered? If so, when?
11. Particulars of disability, whether total or partial, and estimated
duration thereof. If death resulted, so state, giving date of
death
12. Average earnings of employe prior to accident, excluding over-
time: $ per week; $ per month; $
per year.
13. Amount injured person is earning, or is able to earn in some
suitable employment or business after the accident: $
per week; $ per month.
820 bradbtjry's workmen's compensation law
Illinois
__ /
14. Payment, allowance or benefit received from employer during
period of disability: $ account medical care and at-
tendance; $ per week for weeks' total dis-
ability; $. per week for weeks' partial dis-
ability.
15. Additional amount claimed as compensation: $ ac-
count medictd care and attendance; $ per week for
weeks' total disability; $ per week for
weeks' partial disability.
16. Date of service on the employer on notice of accident
17. If notice not served within thirty days, reason for omission to
serve same
18. If application is filed to adjust claim for death, state name,
address and relationship of all dependents: Name ;
Address
If to adjust claim for medical attendance or funeral expenses,
state name and address of all other such creditors and
amount of claims, if known: Name , Address
; Name , Address
IV
(Here state any further facts that may be desired.)
Wherefore your petitioner prays, That the above named re-
spondent be required to answer this petition, that a time and place
be fixed for hearing hereof and due notice thereof given, and that
upon such hearing, an order or award be made by your Honorable
Board granting such relief as the said applicant may be entitled to
in the premises.
Dated at this day of , 19. ..
(Signed)
Address
ADMINISTRATION AND PROCEDURE 821
Illinois
FORM NO. 9
Notice of Disputed Claim
To the Industrial Board,
Chicago, Illinois:
Take notice, that of
(Insert name of employer.)
and
(Insert name of employe.)
have failed to reach an agreement between themselves with ref-
erence to a claim for compensation under the Workmen's Com-
pensation Act of the State of Illinois (Illinois Laws, 1913, page 335)
arising out of an alleged accidental injury on the
day of , 19. . , and the undersigned therefore
requests that said claim may be arbitrated in accordance with the
provisions of said Act, and that your Honorable Board may take
the requisite steps in accordance with the provisions of said Act
for the appointment of a Committee of Arbitration to hear and
determine said claim.
Dated this day of 19. . .
(Employer or employe, as the case may be.)
Address
FORM NO. 11
Request for Appointment of Arbitrators
State of Illinois,
ss
.County,
Applicant,
vs.
Respondent.
To
BEFORE THE INDUSTRIAL
BOARD
Chicago, Illinois.
You are hereby Notified to appoint a representative on a
Committee of Arbitration, to arbitrate the above matter, and to
file your notice of such appointment with the Industrial Board,
Chicago, Illinois, within seven (7) days after the receipt of this
822 bradbtjry's workmen's compensation law
Illinois
notice, in default of which said Industrial Board will appoint a
suitable person to act for you as a member of said Committee of
Arbitration, for the purpose of hearing and determining all ques-
tions in dispute between the parties in the above entitled matter.
Dated this day of 19. . .
Industrial Board of Illinois,
(seal) By
Secretary.
FORM NO. 20
Petition for Review of Decision of Committee of Arbitration
State of Illinois Industrial Board
State of Illinois,
County of
ss.
Petitioner,
vs.
Respondent.
Now comes of
and respectfully petitions the Honorable Industrial Board of the
State of Illinois as follows:
The said Board shall review the decision of the Committee of
Arbitration, duly appointed according to law, in the matter of
vs
which decision of said Committee of Arbitration was filed with the
Industrial Board on>the day of , 19. . .
Petitioner presents herewith an agreed statement of the facts,
as presented to said Committee of Arbitration upon the hearing
hereof (or stenographic report of proceedings, as the case may be).
Petitioner represents that the grounds upon which he presents
this petition for review are that the disability of the applicant
herein has recurred (increased, diminished, or ended, as the case
may be).
Petitioner further represents that said decision of the Committee
of Arbitration should be reviewed by the Industrial Board, for the
ADMINISTRATION AND
PROCEDURE
823
Illinois
following
ground for
additional
review, in
reasons, to wit: (set
accordance with Sec.
up any
XIX).
other
proper
Petitioner therefore prays that proper notice in accordance with
the statute may be given to the parties interested herein, and that
a date may be set by the Honorable Industrial Board for a hearing
upon this petition for review, and that upon such hearing said
Board may modify or vacate the order and decision of the Com-
mittee of Arbitration, as in the opinion of said Board the facts and
circumstances shall warrant.
And your petitioner will ever pray.
(Employer or employ^, as the case may be.)
Attorney for Petitioner.
FORM NO. 24
Petition for Review of Agreement or Award
State of Illinois Industrial Board
Petitioner,
vs.
Respondent.
Petitioner of
respectfully represents/that on the day of ,
19 . . at Illinois, an agreement (or award, as the
case may be) was duly made in the above-entitled matter of com-
pensation due from growing
out of an accidental injury arising out of and in the course of the
employment of as an employ^ of
Petitioner further represents that said agreement (or award, as
the case may be) should be reviewed by your Honorable Industrial
Board upon the ground that the disability of has,
subsequent to the date of said agreement (or award, as the case
824 bradbury's workmen's compensation law
Illinois
may be), recurred (increased, diminished, or ended, as the case
may be).
(Allege what compensation has been paid, if any, and any other facts and circumstances
proper for the Board to consider under the statute upon petition for review.)
Petitioner therefore prays that proper notices may be given to
all parties interested under this petition for review, and that this
petition may be set down for hearing at some date to be fixed by
your Honorable Industrial Board, and that upon such hearing
upon review, said compensation payments as fixed in said agree-
ment (or award, as the case may be) may be re-established (in-
creased, diminished or ended, as the case may be).
And your petitioner will ever pray.
Petitioner.
Attorney for Petitioner.
FORM NO. 28
Employer's or Beneficiary's Petition for Lump Sum
State of Illinois,
lss.
. County,
Petitioner,
vs.
BEFORE THE INDUSTRIAL
BOARD
Chicago, Illinois.
Respondent.
Now, comes petitioner herein, and respect-
fully represents that he is (or, in death cases, say the deceased em-
ploye was) and was on the day of ,
19. . , an employ^ in the service of an em-
ployer at Illinois; that both said employer and
petitioner (or, in death cases, say said deceased employ^) were
working under and subject to the provisions of the Workmen's
Compensation Act (Laws of Illinois, 1913, page 335), and that on,
to-wit: the day of , 19. ., peti-
tioner (or, in death cases, say said deceased employ6) was acci-
ADMINISTRATION AND PROCEDURE 825
Illinois
dentally injured (and, in death cases, add: "as a result of which,
said employ^ died").
Petitioner further shows that said employer has paid compensa-
tion on account of said injury (or death) as follows: (State what
has been paid, and in what installments; and if no compensation
has been paid, so state.)
(In death cases add: Petitioner further shows that . .he is a de-
pendent of said employe, in this, that . . he is the surviving widow
(child, children, as the case may be) with whom said employe lived
at the time of his death, and whom he was under legal obligations
to support; or in case of parents, grandparents or other lineal heirs,
state that said employe contributed to petitioner's support within
four years previous to the time of said injury; if the petition is
presented by an administrator or executor, allege that petitioner
is the duly qualified and acting administrator or executor, as the
case may be, of said deceased employe.)
Petitioner further shows that . . he believes it to the best inter-
est of the parties that compensation now due and to become due
be paid in a lump sum, for the following reasons: (Set them out,
showing necessity for such payment, and proper anticipated use
of the money, etc.)
Petitioner therefore respectfully prays that proper notices may
be given to the interested parties, and particularly to said employer
at Illinois, and
that a hearing may be had at some day to be fixed by your Honor-
able Board, and that upon such hearing said Board may order the
commutation of the compensation to an equivalent lump sum,
equal to the total sum of the probable future payments capitalized
at their present value upon a three per cent basis, with annual
rests, in accordance with the provisions of said Workmen's Com-
pensation Act.
And your petitioner will ever pray.
Petitioner.
P. 0. Address
Attorney for Petitioner.
826 bradbury's workmen's compensation law
Illinois
FORM NO. 29
Petition for Lump Sum
Answer of Respondent
State of Illinois,
County,
ss.
Petitioner,
vs.
Respondent.
BEFORE THE INDUSTRIAL
BOARD
Chicago, Illinois.
Now comes Respondent herein, and for answer
to the petition of herein, praying for a lump sum,
settlement of claim for compensation arising out of the alleged ac-
cidental injury sustained by on the
day of , says:
(Admit such facts as are not controverted and deny those allegations which are controverted.)
Respondent further answering, says that believes that
it is not for the best interests of the parties' that the compensation,
if any, which is now due or which is to become due on account of
said alleged accidental injury to be paid in a lump sum, for the
following reasons, to-wit:
(Set out reasons, showing no necessity for such payment, liability to waste, etc.)
Respondent therefore prays that said alleged compensation now
due and to become due be not ordered paid in a lump sum, and
that said petition may be dismissed.
Respondent.
Post Office Address
Attorney for Respondent.
ADMINISTRATION AND PROCEDURE 827
Illinois
FORM NO. 36
Demand for Security for Payment of Compensation
State of Illinois Industrial Board
Chicago, Illinois,
,19..
To
Demand is hereby made upon you under the authority given the
Industrial Board by Section XXVI of an Act, entitled: "An Act
to promote the general welfare of the people of this State by pro-
viding compensation for accidental injuries or death suffered in
the course of employment within this State; providing for the en-
forcement and administering thereof, and a penalty for its viola-
tion, and repealing an Act entitled, ' An Act to promote the general
welfare of the people of this State by providing compensation for
accidental injuries or death suffered in the course of employment,
approved June 10, 1911, in force May 1, 1912.' "
That within ten days of the receipt by you of this written notice,
you either:
1. File with the Industrial Board a sworn statement, showing
your financial ability to pay compensation provided for in said
Act, normally required to be paid; or,
2. Furnish security, indemnity or a bond guaranteeing the pay-
ment by you of the compensation provided for in said Act, nor-
mally required to be paid; or,
3. Furnish the Board with satisfactory evidence that you have
insured to a reasonable amount your normal ability to pay such
compensation in some corporation, association or organization au-
thorized, licensed or permitted to do such insurance business in
this State; or,
4. Make some other provision for the securing of. the payment of
compensation provided for in said act, normally required to be
paid.
You are further notified that you are required by the provisions
of said act to furnish the Industrial Board at Chicago, Illinois,
within twenty days of the receipt of this written demand and no-
828 Bradbury's workmen's compensation law
Illinois
tice, evidence of your compliance with one of the above four al-
ternatives, and that the steps taken by you pursuant to this notice
and demand for compliance with the requirements of said Act as
above stated, shall be subject to the approval of the Industrial
Board.
You are further notified that if one or more of the above named
four alternatives are not complied with by you within ten days of
the receipt of tms demand and notice, or if such compliance on
your part shall not be approved by the Industrial Board, and you
fail to properly comply with this written demand, within ten days
after the receipt by you of written notice of non-approval, then
and in such case you shall be liable for compensation to any injured
employe, or his personal representative, according to the terms of
said Act, or for damages in the same manner as if you had elected
not to accept this act, at the option of such employe or his personal
representative.
Prompt compliance with the above demand is respectfully urged.
Dated at Chicago, Illinois, this day of A. D.
19...
Industrial Board,
(seal) By
Member of Board.
FORM NO. 39
Notice by Employe of Exercise of Option to Proceed for Compensa-
tion, or for Damage
State op Illinois Industrial Board
To
You are hereby notified that by reason of your failure to comply
with the demand of the Industrial Board of the State of Illinois,
under Section 26 of the Workmen's Compensation Act (Laws of
Illinois 1913, p. 335), that you furnish sworn statement of financial
ADMINISTRATION AND PROCEDURE 829
Illinois
ability, or security, indemnity or bond, or sufficient amount of
insurance, or other satisfactory provision for securing the payment
of compensation provided by said Act, I, The undersigned, hereby
exercise the option given to me by the provisions of said act to
proceed against you for (compensation or damages, as the employe
shall elect,) and that I have accordingly filed proceedings therefor
on this date in at
on account of accidental injuries sustained by me while in your
employment on the day of A. D. 19. ..
Dated at Illinois, this day of
,19.-.
(Signed)
FORM NO. 40
Notice of Employe of Accidental Injury and Claim for Compensation
Therefor
State of Illinois Industrial Board
To
(Write name of employer here.)
(Write address of employer here.)
You will take notice that the undersigned was on the
day of A. D. 19. ., injured by an accident arising
out of and in the course of his employment, while employed by you
at Illinois.
Name of Employe
Post Office Address . . ,
Relationship to claimant
(State whether notice given by injured person or by dependent.)
Claim for compensation is for
Cause of the accident *
Nature of the injury is as follows
830 bbadbury's workmen's compensation law
Illinois
FORM NO. 41
Notice of Claim for Partial Permanent Disability after Return to Work
To The Industrial Board,
Chicago, Illinois.
Take notice, that the undersigned, an employe in the service of
, an employer engaged in this business of
at Illinois, was accidentally injured in
the course of such employment, on the day of
, 19 . . , at the of said employer,
at Illinois; that the cause of said accident was
and the nature of the injury is
on account of which the undersigned employe is partially though
permanently incapacitated from pursuing his usual and customary-
line of employment; that on the day of
, 19 . . , the undersigned employe" returned to the
employment of said employer. , in whose service
he was injured as aforesaid.
Further take notice, that the undersigned employe" hereby makes
formal claim for compensation against said employer
,for $ being weeks
days, at $ per week or .day,
on account of said accidental injury, of , 19. . ,
and the Industrial Board is hereby requested to immediately send
a copy of this notice by registered mail to said employer
at as provided by
Section 8 (d) of the Workmen's Compensation Act, Laws of
Illinois 1913, page 335.
Dated ,19...
(EmployS)
P. 0. Address
ADMINISTBATION AND PROCEDURE 831
Illinois
FORM NO. 42
Settlement Receipt
Received of
(Name of employer.)
the sum of dollars
and cents, making in all, with weekly payments
already received by me, the total sum of dollars
cents, in settlement of compensation under the
Illinois Workmen's Compensation Law, for all injuries received
by me on or about the day of , 19. .,
while in the employ of
. (Name of employer, city or town, street and number.)
subject to review by the Industrial Board.
Witness my hand this day of , 19. ..
Witness, '.
(Name of employe.)
Address
(Street and number.) (City or town.)
FORM NO. 43
Receipt on Account of Compensation
Received of
(Name of employer.)
the sum of dollars and
cents, being the proportion of my weekly
wages from the day of , 19. ., to
the day of , 19.., under the
Illinois Workmen's Compensation Act, subject to' review by the
Industrial Board, said accident occurring on the
day of , 19. ., while in the employ of
/
(Name of employe.)
(Street and number.)
Date.
832 bradbury's workmen's compensation law
Illinois
FORM NO. 44
General Release
Know all men by these phesents, That I, ,
of in the County of in the State
of Illinois have received of the
the sum of dollabs
($ ) in full payment, satisfaction, compensation and
indemnity, for all injuries, loss or damage by me sustained or suf-
fered, in mind, body or estate, having especial reference to the
injuries hereinafter described, but hereby expressly including all
other loss, incapacities or injuries by me suffered, claimed to have
been occasioned by an accident which occurred on the
day of A. D. 19. . at
(Where accident occurred.)
in the town of in the County of and
State of Illinois, by which I sustained the following injury:
and by which I was otherwise hurt and injured.
And in consideration of the prompt payment of said sum of
money and the further consideration of the compromise and settle-
ment, without suit or proceedings of any kind, of my claim, by me
made against said
I, the said
for myself, my heirs, executors and administrators, do hereby for-
ever release and hold harmless the said
of and from any and all rights of action, claims of compensation for
disability, incapacity, disfigurement, and medical, surgical and
hospital service and expense in connection with said injury, and
all other claims, demands or liability in any way arising out of, or
which in any manner hereafter may arise out of or result from, said
accident for injuries occasioned, loss of time, loss of service, loss of
property, loss of earning capacity, moneys expended, or liability
incurred, and any and all claims, demands or liability, of whatever
nature, for or on account of any act or thing done or omitted to be
done by said
officers, agents, servants or employes, or any one of them, in its
behalf; including all claims or demands due or which may or might
ADMINISTRATION AND PROCEDURE 833
Illinois
become due under the Workmen's Compensation Act, 1913.
(Laws 111., 1913, p. 335.)
I further represent and covenant that at the time of receiving
said payment and signing and sealing this Release, I am of lawful
age and legally competent to execute it, and that before signing
and sealing the same, I have fully informed myself of its contents
and executed it with full knWledge thereof, including the knowl-
edge that I sign away all right to begin any suit, proceeding or
action arising by reason of injuries sustained in said accident,
whether such injuries exist now or shall develop hereafter.
Witness my hand and seal this day of
A. D. 19...
[seal]
Witnesses:
State op Illinois,
County of
Personally appeared before me this day of ... .
A. D. 19 , to me known to be the
person who executed the within Release, and acknowledged the
same to be his free act and deed; and I certify that before the
execution thereof, the foregoing Release was read over and fully
explained to the same person by me, and that he declared before
execution thereof that he fully understood the same.
Notary Public.
TRANSLATION CERTIFICATE
I; , do hereby certify that I
have translated the foregoing Release from the English to the
language, to the within named ,
and that he signed the same with a full understanding of its con-
tents and legal effect.
53
834 bradbuey's workmen's compensation law
Iowa
FORM NO. 46
Report of Permanent Disability
State of Illinois — Industrial Board
The undersigiwd hereby reports accidental injury in which per-
manent disability has resulted to the employe1 as follows:
Employer's name Business
Main Office: Street and No City or Town
City or town in which accident happened
Employees name Street and No
City or Town
Sex Age Married or Single American or
foreign born
Occupation when injured (machinist, carpenter, laborer, etc.) ....
Wages
Date of accident o'clock M.
Direct cause of injury
Nature of accident (describe fully) .
If non-fatal, the length of disability:
Permanent disability of employe* resulted or will result on. ... 19. .
Attending physician, surgeon or hospital
Amount paid By whom
Has compensation been paid? To whom
Amount
Date of report Made out by
IOWA
The administration of the Iowa Act is under the super-
vision of a single officer known as the Iowa Industrial Com-
missioner who may appoint necessary assistants. Part II,
ADMINISTRATION AND PROCEDURE 835
Kansas
§ 24. All agreements as to compensation must be reduced
to writing and filed with the Commissioner and unless he
disapproves the same within twenty days they stand ap-
proved. Part II, § 26.
If there is a failure to agree an arbitration committee is
formed and the Industrial Commissioner is the chairman of
every such committee. Part II, § 27. The finding of the
arbitration committee is filed with the Industrial Commis-
sioner. Part II, § 30. If a claim for review is filed from the
decision of the arbitration committee it is heard by the
Industrial Commissioner alone who may revise the decision
of the committee in whole or in part and may refer the matter
back to the committee for further findings of fact. Part II,
§ 33. Any party in interest may present a certified copy
of the decision of the Industrial Commissioner or the de-
cision of the Committee of Arbitration from which no claim
of review has been filed, or a memorandum of agreement
approved by the Commissioner, in the District Court in the
County in which the injury occurred, whereupon the court
shall render a decree in accordance therewith and notify
the parties. Part II, § 34.
KANSAS
There is no special officer appointed under the Kansas
law to administer the Act or supervise proceedings there-
under. Questions in relation to compensation may be
settled by agreement. § 23. If an agreement cannot be
reached disputes may be settled by arbitration. §§ 24 to 30
inclusive. Upon the filing of an award under an arbitration
a judgment may be entered in the District Court. § 31.
If the parties cannot agree upon the compensation, or
refuse to arbitrate their differences, the workman's right to
compensation may be determined in an action in any court
of competent jurisdiction. § 30.
836 bbadbury's workmen's compensation law
Massachusetts
MARYLAND
Questions relating to compensation may be settled by
agreement or by arbitration. § 13.
MASSACHUSETTS
The Act is administered by an Industrial Accident Board
consisting of five members with its principal office in Boston.
Questions relating to compensation may be settled by agree-
ment, but these agreements are not binding until they are
approved by the Board. Part III, § 4. If the parties do
not agree on the compensation they may call upon the Board
to form an arbitration committee. Part III, §§ 5 and 6.
The decision of the arbitration committee is filed with the
Industrial Accident Board and unless a claim for review is
filed by either party within seven days the decision is final.
Part III, § 7. If a claim for review is filed it is heard by the
Industrial Accident Board. Part III, § 10. Any party in
interest may present a certified copy of the decision of the
Board or of an arbitration committee, from which no claim
for review has been filed, or a memorandum of agreement ap-
proved by the Board, to the Superior Court * for the county
1 "At the threshold lies a question of practice. The insurer, being a
party in interest, presented its petition to the Superior Court, together
with certified copies of the decision of the Industrial Accident Board.
The petition alleges the interest of the employe^ employer and insurer,
the date of the decision and the insurer's desire to have determined ques-
tions of law set out in the decision. Part III, § 11, as amended by St.
1912, c. 571, § 14, provided that 'any party in interest may present
certified copies of an order or decision of the Board * * * and all papers
in connection therewith to the Superior Court * * * whereupon said
Court shall render a decree in accordance therewith and notify the parties.
Such decree shall have the same effect, and all proceedings in relation
thereto shall thereafter be the. same as though rendered in a suit duly
heard and determined by said Court, except that there shall be no appeal
ADMINISTRATION AND PROCEDURE 837
Massachusetts
in which the injury occurred, or for the County of Suffolk,
whereupon said court shall render a decree in accordance
therewith and notify the parties. Part III. § 11.
therefrom on questions of fact.' While this section does not require any-
thing more than the bare presentation of the copies of the designated pro-
ceedings of the Industrial Accident Board, it is not improper that a petition
be filed setting forth briefly the nature of the questions to be decided.
When the case came on to be heard in the Superior Court a decree was
entered in accordance with the decision of the Board. The Judge also
allowed a bill of exceptions, stating that it was for the purpose of enabling
this Court to determine the proper manner of bringing before it pro-
ceedings of this sort.
"The Workmen's Compensation Act has a procedure all its own. Where
the Act is adopted by the parties, a relation arises between the employe1
and the employer, under which in the event of a personal injury to the
employ^ there shall be speedy ascertainment of the new kind of compen-
sation provided by the Act, coupled with a voluntary relinquishment
by both parties of the right to trial by Jury as to matters covered by the
Act. One main purpose of the Act is to establish between employe1 and
employer, in place of the common-law or statutory remedy for personal
injury, based upon tort, a system whereby compensation for all personal
injuries or death of the employe1 whether through unavoidable accident
or negligence or otherwise (except through his serious and wilful mis-
conduct), shall be determined forthwith by a public board, and paid by
the insurer. For the accomplishment of these ends a simple method is
furnished operating without delay or unnecessary formality. The prac-
tice should be direct and flexible in order to adapt the remedy to the
needs of the particular case. In one aspect a case under the Act resembles
an action at law, for it seeks ultimately the payment of money. Payments,
however, in most instances are by instalments. In another aspect it is
akin to the specific performance of a contract, designed to cover the whole
range of misfortunes likely to arise in the course of employment in a
state with many and diversified industries. Moreover, the compensation
is to be paid not directly by the employer, but by the insurer, who is
either the "Massachusetts Employes Insurance Association" provided
by Part IV of the Act or any liability insurance company authorized to do
business within the Commonwealth. The employe1 has no immediate
relation with the insurer. He is the beneficiary under a contract between
the employer and insurer. A beneficiary under any instrument to which
he is not a direct party more naturally looks to equity rather than the
law for relief. Part III, § 11, requires a "decree" to be entered, and
838 bradbury's workmen's compensation law
Massachusetts
FORM
Agreement in regard to compensation 1
We, , residing at
(Name of injured employe.)
city or town of and the
»
(Name and address of insurance association or company.)
have reached an agreement in regard to compensation for the in-
jury sustained by said employ & while in the employ of
(Here insert name and address of employer.)
(Here insert the time, including hour and date of accident, the place where it occurred, the
nature and cause of injury, and other cause or ground of claim.)
refers to the proceedings as a "suit." A decree in our practice is entered
commonly in equity alone. Judgment is the word expressive of the end
of an action at law. Suit while a word of comprehensive signification, is
applied usually in our practice to proceedings in equity, while action is
the word descriptive of proceedings at law. Our statutes in general,
although perhaps not with absolute uniformity, refer to proceedings in
equity as suits, § R. L. c. 159, and to those at law as actions, § R. L.
c. 167. Giving due weight to the equitable phraseology employed in
this section, to the beneficent purposes of the Act, which can be enforced
better through the relief afforded by equity, and to the character of pro-
ceeding itself and the parties thereto, it follows that in the main causes
under the Act in Court should be treated as equitable rather than legal
in nature, procedure and final disposition.
"The Act provided only for an appeal, and makes no reference to ex-
ceptions. Although exceptions are permitted in our system of equity,
that is a statutory engraftment, not according to general chancery pro-
1 "Every agreement in regard to compensation under this act is subject
to approval by the Industrial Accident Board, and a memorandum of the
same must be filed with the Board, whether said agreement is written
or oral, and whether it is made by one or both parties, or in the form of a
receipt. Any weekly payment or settlement under the act, whether
purporting to be final or otherwise, may be reviewed by the Board. (Sec-
tion 20, Part II, and sections 4 and 12, Part III, chapter 751, of the Acts
of 1911, and amendments thereto, and rule adopted by the Board.)
"The above paragraph of this rule shall be written or printed at the
head of every agreement regarding compensation, and of every receipt
taken by the insurer from the employed" Rule No. 6, Mass. Indus.
Ace. Bd.
ADMINISTRATION AND PROCEDURE 839
Massachusetts
The terms of the agreement follow:
(Here state the sum per week agreed upon subject to the terms of the Act.)
(Witness.) (Name of injured employe.)
(Name of insurance association or company.)
cedure, an appeal is simpler and on all grounds better practice. But where
exceptions are taken, there can be no final decree until exceptions are dis-
posed of. The present Act, however, requires a decree, which in the ordi-
nary case must be final in its nature, to be entered by the Superior Court.
This precludes the possibility of exceptions. It follows that the suit
must be brought here by appeal from the decree of the Superior Court,
and not by exceptions. As exceptions could not be allowed legally, the
case is here rightly on appeal." Gould v. Sturtevant and Am. Mut. Lia.
Ins. Co., 215 Mass. 000; 102 N. E. Rep. 693.
"In the decree entered in the Superior Court the ruling of the Board
of Arbitration was followed, providing that the payments should be di-
vided equally between the widow and the dependent minor daughter,
rather than that of the Industrial Accident Board that the widow alone
was entitled to the payments. This was not in accordance with the Act,
as has been pointed out. Apparently the judge of the Superior Court
exercised his own judgment as to the kind of decree which the law re-
quired upon the facts found. That is correct. Part III, § 11, of the Act
as amended by St. 1912, c. 571, § 14, provides that when copies of the
'decision of the Board * * * and all papers in connection therewith'
have been transmitted to the Superior Court, 'said Court shall render a
decree in accordance therewith.' This means such a decree as the law
requires upon the facts found by the Board. It does not make the action
of the Superior Court a mere perfunctory registration of the approval
of the 'conclusions' of law reached by the Industrial Accident Board.
The section in question doubtless was enacted because of the intimation
in the Opinion of the Justices, 209 Mass. 607, 612, to the effect that the
decision of the Board must be enforced by appropriate proceedings in
Court. The obligation placed upon the Superior Court by the require-
ment to enter a decree in accordance with the decision is to exercise its
judicial function by entering such decree as will enforce the legal rights
of the parties as disclosed by the facts appearing on the accord." Mc-
Nichol v. Patterson, Wilde & Co. and Employers' Lia. Assur. Corp., 215
Mass. 000; 102 N. E. Rep. 697.
"The Act does not contemplate the allowance of exceptions, and they
must be dismissed. The case is properly here on appeal." Id.
Although a proceeding under the Workmen's Compensation Act is
not an equity cause, the practice, speaking broadly, follows that prevailing
840 beadbury's workmen's compensation law
Massachusetts
FORM
Receipt on account of compensation
Received of
(Name of insurance association or company.) .
the sum of * , dollars,
and cents, being the proportion of my weekly wages for
the period from the .day of , 191., to the
day of , 191. , under the Massachusetts Workmen's Com-
pensation Act, subject to review by the Industrial Accident Board.
(Witness.) (Employe.)
(Street and No.) (Street and No.)
(City or Town.) (City or Town.)
in equity and not that in law. Pigeon v. Employers' Lia. Assur. Corp.,
215 Mass. 000; 102 N. E. Rep. 932.
The word " court" is broad enough to include the Committee of Arbitra-
tion and the Industrial Accident Board as instituted by the Workmen's
Compensation Act and should be given such construction in relation to
R. L. Chap. 175, § 66, providing that "a declaration of a deceased person
shall not be inadmissible in evidence as hearsay if the court finds that it
was made in good faith before the commencement of the action and upon
the personal knowledge of the declarant." Pigeon v. Employers' Ida.
Assur. Corp., 215 Mass. 000; 102 N. E. Rep. 932. In the last-mentioned
case the deceased employe' was a driver and stated shortly before the ac-
cident that he was going to take the horses to water. On the way to the
watering trough the horses ran away and the employe" was killed. It was
held that this declaration by the employe" was admissible in evidence in a
proceeding on behalf of dependents before an Arbitration Commission and
the Industrial Accident Board for compensation.
The Massachusetts Industrial Accident Board has no authority to
arbitrate injury cases not under the Workmen's Compensation Act.
Bulletin No. 2, Mass. Indus. Ace. Bd., Jan., 1913, p. 12.
ADMINISTRATION AND PROCEDURE 841
Massachusetts
FORM
Application for review of claim before full board
To the Industrial Accident Board, Boston, Mass.
Gentlemen: — The undersigned, as provided in Part III, sec-
tion 7, chapter 751 of the Acts of 1911, and amendments thereto,
makes application for a review of the findings of the Committee
on Arbitration in the claim of
vs. . . , ■.
This claim for a review is based on the following ground: —
,191..
Note. — "No party shall as a matter of right be entitled to a
second hearing on any matter of fact."
FORM
Appointment of next friend of minor
Under Part II, § 14 of the Act, which permits a minor to nom-
inate a next friend to receive compensation the Board has adopted
a simple form which may be used in such cases as follows:
I, , being a minor, hereby request
(Name and address of employe.)
my mother (or as the case may be), whose name is
to exercise all my rights and privileges under the Workmen's
Compensation Act, and I hereby nominate and declare my said
mother to be my next friend for said purposes.
Dated at the on the day of , 191..
(Signature of employe.)
842 bra.dbury's workmen's compensation law
Michigan
MICHIGAN *
The Act is administered by the Industrial Accident
Board consisting of three members appointed by the Gover-
nor. Part III, § 1. The Board prints and furnishes free of
charge to employers or employes all blanks necessary in the
administration of the act. Part III, § 4. Questions relating
1 Rules of Procedure, Michigan Industrial Accident Board
what accidents to be reported
Rule 1. All accidents which result in disability continuing for more
than one full working day shall be reported to the Board; all accidents
involving the loss of a member shall be so reported irrespective of the
question of disability resulting; all accidents causing death shall be re-
ported to the Board.
WHEN TO BE REPORTED
Rule 2. All employers subject to the Compensation Law shall make
reports to the Board weekly of all accidents to their employe's which come
within the classes of accidents designated in Rule 1. Such reports shall
be on and in accordance with the requirements of the weekly report blank,
"Form No. 5-a," of said Board.
FIFTEENTH-DAT REPORT
Rule S. In all cases where the disability resulting to the injured employe"
continues for more than fourteen days, a further report, on and in accord-
ance with the requirements of report blank, "Form No. 6," shall be made
to the Board on the fifteenth day of such disability: Provided, That in
all cases where the accident causes the loss of a member or death, such re-
port on Form No. 6 shall be made to the Board within ten days after such
accident or such death, as the case may be.
IMMEDIATE REPORT REQUIRED
Rule 4- Id. all cases where a claim for compensation is filed with the
Board by an injured employe^ if it appears that the report required by
Rule 3 has not been made and filed by the employer on account of dis-
agreement as to the continuance of the disability or for any other reason,
the Board shall thereupon require such employe1 to forthwith file a report
ADMINISTRATION AND PROCEDURE S43
Michigan
to compensation may be settled by agreement, but they
are subject to the approval of the Board. Part III, § 5. If
the parties fail to agree as to the compensation the Board
of the accident on and in accordance with the requirements of blank Form
No. 6 of said Board.
MEMORANDUM AGREEMENT
Rule 5. When an agreement in regard to compensation is made be-
tween the employer and the injured employ^, the same shall be in writing
on and in accordance with Form No. 10 of the Bpard, and such agreement,
together with the supplemental report in accordance with the requirements
of form No. 7, shall be immediately filed with the Board.
SUPPLEMENTAL REPORT
Rule 6. In cases where the employer and employe1 fail to reach an
agreement in regard to compensation and either of such parties files
application with the Board for arbitration of the matter, such em-
ployer shall, within fifteen days after the filing of such application for
arbitration, make and file with the Board a supplemental report of the
accident on and in accordance with the requirements of Form No. 7 of
said Board.
RECEIPTS FOR COMPENSATION
Rule 7. After an agreement relating to compensation is made between
the employer and the injured employ 6, and approved by the Board; and
also in cases where an application for arbitration has. been filed and an
award of compensation made by the Board, receipts for weekly payments
of compensation made upon Form No. 11, signed by such employe1 or
his dependents, shall be filed in the office of the Board monthly.
FINAL REPORT
Rule 8. When the disability of the injured employe" terminates; and
also when the payment of compensation for the loss of a member, or in
case of death, has been fully made, final report thereof shall be filed with
the Board, on and in accordance with Form No. 7-a, together with settle-
ment receipt on and in accordance with Form No. 12, signed by the
employe1 or his dependents, as the case may be.
Rule 9. Wherever the word "employer" is used in the foregoing rules,
numbered from 1 to 8 inclusive, it shall be construed to cover either the
employer, or the insurance company carrying the risk, or the Commis-
sioner of Insurance, as the case may be.
844 bradbury's workmen's compensation law
Michigan
forms an arbitration committee which hears the matter and
reports to the Board. If a claim for review is filed the matter
is heard by the Board, which has power to hear the parties,
LUMP SUM PAYMENTS
Ride 10. It is manifest that the clear purpose of the legislature was to
provide that the compensation receivable under this law should go to the
persons or families5 entitled to the same in weekly payments, it being the
opinion of the legislature that when so paid it would more effectually
meet and relieve the wants of the injured employes and their families,
than if paid in a lump sum. This view has the full endorsement and con-
currence of the Board. Therefore, lump sum payments will only be au-
thorized in exceptional cases where circumstances create a necessity for
such action. Application for lump sum payments can only be made after
an "Agreement in Regard to Compensation" has been filed with and
approved by the Board, or an award of compensation made; and such
application is required to be in the form of a sworn petition setting forth
in detail the facts and circumstances on which application is based. Desire
of the applicant to go to another state or country or to buy property, or
to invest in business, etc., do not constitute reasons for lump sum payment.
In general conditions created by the acts of the injured employe1 or his
dependents after the accident, do not constitute ground for such payment.
As a general rule, the circumstances and conditions that will justify such
payment are those existing prior to the accident or created by it, such as
mortgage indebtedness on the home of the employed In such case, both
the indebtedness and attendant conditions must be set forth in detail,
and if secured by mortgage, the location and description of the property
must be given, the name and address of the mortgagee, and the office
or place where the mortgage is filed or recorded.
APPEALS TO SUPREME COURT
Ride 11. In case an appeal is taken to the Supreme Court by cer-
tiorari, it is incumbent upon the appellant to prepare the return to such
writ in much the same way that a bill of exceptions is prepared in cases
appealed by writ of error. Such proposed return should be submitted
to and served upon the opposite party, or his attorney, so as to give
opportunity to prepare and submit amendments in substantially the
same way as in settling bills of exceptions. The appellant at the time
of serving the proposed return on the opposite party should serve such
opposite party with notice of the time when the proposed return will be
presented to the Board for settlement. This practice will give both par-
ties an opportunity to be heard and to have all matters which they
ADMINISTRATION AND PROCEDURE 845
Michigan
together with such additional evidence as they may wish
to submit. Part III, § 11. The decision of the Board may
be reviewed by the Supreme Court on all questions of law.
deem important included in such return. In cases where the proposed
return is agreed upon between the parties, such agreement may be signi-
fied by a stipulation in writing attached to the proposed return.
FINDINGS OF FACT AND LAW
Rule IS. If either party in a case desires to have findings of fact and
law made by the Board for the purpose of an appeal to the Supreme Court,
such party shall prepare and submit to the Board proposed findings of law
and fact in substantially the manner required by rule in non-jury cases.
Such proposed findings shall be served upon the opposite party, together
with notice of the time when the same will be presented for settlement be-
fore the Board. Such opposite party may draft and submit amendments
to such proposed findings of fact and law, and also additional proposed
findings, if deemed necessary. In case of disagreement on such proposed
findings, the same will be settled by the Board in substantially the same
manner that is provided for settlement of the return to a writ of certiorari.
Parties will aid the Board in this work by agreeing upon the facts to be
found whenever possible, and in cases where they are unable to agree
they will aid the Board by reducing the matters in difference to the smallest
possible compass.
FURTHER RULES
The Industrial Accident Board on October 5, 1912, adopted certain
rules relating to the reporting of accidents, settlement of claims, receipts
for compensation and procedure to be followed in cases settled and dis-
posed of without arbitration or contest. These are known as "Rules of
Procedure'' and are numbered from one to nine inclusive. Said rules and
the procedure marked out by them cover the uncontested cases, and also
the reporting of accidents and other preliminary proceedings in cases
that later become contested and eventually proceed to arbitration.
In the administration of the law the Board has from time to time
adopted rules relating to practice and procedure in connection with con-
tested cases and claims, as experience seemed to require, and the same
are here set forth, under the bead of "Administration and Procedure,"
as follows:
SELECTION OF ARBITRATORS
Rule 1. It is a maxim of the law that no man can act as judge in hjs
own case, and this principle extends to and excludes all persons financially
846 bradbury's workmen's compensation law
Michigan
Part III, § 12. The application for review by the aggrieved
party must be made within thirty days "after such de-
termination" by certiorari, mandamus or any other method
interested in the outcome of the case, together with their agents, officers,
and attorneys. Persons so nearly related to any of the parties in" an arbi-
tration case that they may be fairly deemed to be financially interested
in the decision are also excluded under this principle. The rule is there-
fore established by* the Board that all persons who fall within any of the
above-named classes are disqualified from acting as arbitrators in cases
to be heard before committee on arbitration under the Workmen's Com-
pensation Law.
POSTPONEMENT Or CASES
Rule 2. The compensation law provides that arbitration be had in the
locality where the accident occurred. This is for the accommodation of
parties interested and to save expenses for travel and mileage for them-
selves and witnesses. In all arbitration cases one member of the Board
goes to place of accident, frequently traveling hundreds of miles to hear
the case. It is apparent under these conditions a postponement of such
hearing cannot be had and it is necessary for the parties to be prepared
for arbitration and to proceed with the same at the time and place set.
Any other rule would make the administration of the compensation law
expensive and ineffectual. The parties must also have their witnesses
ready at the time and place set for arbitration so as to make their proofs
complete.
INSURER DEEMED PARTY
Rule S. When arbitration is ordered in the case of any employer who
is insured, notice of the time and place of such arbitration shall be given
both to the employer and the company or organization carrying the risk;
and a copy of the award or judgment on such arbitration shall be sent by
mail from the offices of the Industrial Accident Board to such employer
and also to the carrier of the risk. In all such cases if an award of com-
pensation is made it shall be against the employer and also against the
carrier of the risk, both of whom shall be deemed parties to such pro-
ceeding.
AGREEMENTS AND AWARDS
Ride 4- In all cases where an award has been made, or agreement in
regard to compensation entered into by the parties and approved by the
Board, such award or agreement, as the case may be, shall continue in
force until modified by the order of the Board, or by a written agreement
ADMINISTRATION AND PROCEDURE 847
Michigan
possible under the rule and practice of the Supreme Court
or the laws of the State. Part III, § 12. Either party may
present a certified copy of the decision of the Board or of an
of the parties approved by the Board. The employer may not stop or
in any way change the rate of compensation provided for in such award
or. agreement except as herein provided. In cases where the employe1
returns to work at the termination of his disability the filing of the final
receipt for compensation will be deemed an agreement terminating the
period of disability.
WITNESSES AND PROOFS
Rule 5. The arbitration is the first and fundamental hearing in contested
cases, and is held at the place where the accident occurred in order to make
such hearing reasonably convenient and inexpensive to the parties. The
proofs should be fully taken at such arbitration, and such proofs in general
form the record and basis for the hearing on review before the full Board.
Where cases are taken before the full Board for review, additional testi-
mony may be taken when necessary by deposition under the provisions
of the general statutes of the state. The party appealing should furnish
the Board with a copy of transcript of the proofs. Witnesses will not be
heard orally before the full Board except on extraordinary occasions, and
then only in cases where permission to produce and examine such wit-
nesses has been granted by the Board on application prior to the date
of the hearing.
-Where a minor is injured the compensation may be paid direct to such
minor. Ruling of Mich. Indus. Ace. Bd., January, 1913.
A chief engineer having supervision of several plants where his duties
consisted in overseeing the installation, received the injury which re-
sulted in his death while attempting to board a street car. The following
day he spent the greater part of his time at the office of the company,
but complained of a severe headache. Symptoms of brain pressure be-
came evident and he subsequently died. It was held that the statements
of the deceased made to his wife on leaving home in an injured condition,
as to the manner in which the accident occurred, were admissible as part
of the res gestm. Hopkins v. Michigan Sugar Co., Mich. Indus. Ace. Bd.,
June, 1913.
Where an employe1 of a State Institution is injured in the course of his
duties his claim for damages must be paid out of the funds of the Institu-
tion by which he is employed, and such disbursement should be included
as part of the current expenses of the maintenance of such Institution.
Opinion of Attorney General of Michigan, on the application of the Board
of State Auditors, in re Michigan School for the Blind. January 22, 1913.
848 bradbury's workmen's compensation law
Michigan
approved agreement or of a decision of an arbitration com-
mittee where no claim to review is made to the Circuit Court
in the county in which the accident occurred, whereupon the
court must enter judgment in accordance therewith. Part
HI, § 13.
FORM NO. 10
Agreement in regard to compensation
We,
(Name of injured employe.)
residing at city or town of
and
(Name of employer, insurance company or commissioner of insurance.)
have reached an agreement in regard to compensation for the in-
jury sustained by said employe while in the employ of
(Name and address of employer.)
The time, including hour and date of accident, the place where
it occurred, the nature and cause of injury and other cause or
ground of claim, are as follows:
The terms of the agreement follow:
(Here state the sum per week agreed upon, subject to the terms of the Act; also wages earned
by injured at time of accident.)
Witness:
(Name of injured employe.)
(Name of employer, insurance company,
or insurance commissioner.)
By
Dated at this day of . . . . . . , 191 . .
NOTE. — If the employer, or the insurance company carrying such risk, or commissioner of
insurance, as the case- may be, and the injured employ 6 reach an agreement in regard to com-
pensation under this act, a memorandum of such agreement shall be filed with the Industrial
Accident Board, and, if approved by it shall be deemed final and binding upon the parties
thereto. Such agreement shall be approved by said board only when the terms conform to the
provisions of this act — Section 5, part III.
FORM NO. 11
Receipt on account of compensation
Received of the sum of
(Name of employer, insurance company or commissioner of insurance.)
dollars and cents
administration1 and procedure 840
Michigan
being the proportion of my weekly wages from the
day of , 19. ., to the day of 19. .,
under the Michigan Workmen's Compensation Law, subject to
review by the Industrial Accident Board, said accident occurring
on the day of , 191 . , while in the
employ of
$
(Name of employe\)
(Street and number.)
Date
(City or town.)
If the employer, or the insurance company carrying such risk, or commissioner of- insurance,
as the case may be, and the injured employe1 reach an agreement in regard to compensation
under this act, a memorandum of such agreement shall be filed with the Industrial Accident
Board, and, if approved by it, shall be deemed final and binding upon the parties thereto. Such
agreement shall be approved by said board only when the terms conform to the provisions of
this act — Section 5, part III.
FORM NO. 12
Settlement receipt
Received of
(Name of employer, insurance company or commissioner of insurance.)
the sum of dollars
and cents, making in all, with weekly pay-
ments already received by me, the total sum of
dollars and cents, in settle-
ment of compensation under the Michigan Workmen's Compensa-
tion Law, for all injuries received by me on or about the
day of , 19. . , while in the em-
ploy of
(Name of employer, city, or town, street and number.)
subject to review and approval by the Industrial Accident Board.
Witness my hand this. day of , 19 . .
Witness '•'■
(Name of employe.)
Address
(Street and number.)
(City or town.)
If the employer or the insurance company carrying such risk, or commissioner of insurance,
as the case may be, and the injured employe reach an agreement in regard to compensation
under this act, a memorandum of such agreement shall be filed with the Industrial Accident
Board, and, if approved by it, shall be deemed final and binding upon the parties thereto. Such
agreement shall be approved by said board only when the terms conform to the provisions of
this act. — Section 5, part III.
54
850 bradbtjry's workmen's compensation law
Michigan
FORM NO. 13
Notice and application for adjustment of claim
State of Michigan,
County of
»
Applicant
vs.
Respondent(s).
, the above named applicant,
hereby gives notice to said Industrial Accident Board that the
above named parties have failed to reach an agreement in regard
to compensation under Act No. 10 of the Public Acts of 1912, extra
session; and hereby makes application to said Industrial Accident
Board for the adjustment of such compensation between said
parties, and the adjudication and determination of the same.
Said applicant further shows that the accident upon which claim
for compensation is based in this matter occurred on the
day of , 191., at the town of
, county of , and State of
Michigan, and resulted in:
(State fully result of injury.)
The postoffice address of the above-named applicant is
and the postoffice address of the respondent(s) is as follows:
The above named applicant prays for the following relief in the
premises, viz. :
(State amount of claim as near as may be.)
Wherefore the applicant prays that a time and place be fixed by
said Board for the arbitration and adjudication of said matter,
and that due notice thereof be given to all of the parties hereto
and that an order or award be made by the Industrial Accident
ADMINISTRATION AND PROCEDURE 851
Michigan
Board granting such relief as the applicant may be entitled to in
the premises.
(Signed)
(Applicant.)
Dated at , this day of , 191 . .
NOTE — Either party to the dispute may apply to the Board for the adjustment of the matter
in difference. The original notice and application shall be seut by mail to the Industrial Ac-
cident Board, Lansing, Michigan. If the accident did not result fatally, describe particularly
the nature and extent of the injury. If death resulted to the employe from the accident, so
state, giving the full name of such deceased employed
FORM NO. 14
Notice of hearing
Applicant.
Respondent(s).
To the above named parties and each of them:
Notice is hereby given that on the day of ,
191., notice and application for adjustment of claim for compen-
sation in the above entitled matter was filed with the Industrial
Accident Board at its office in Lansing, Michigan, and that a true
copy of said notice and application is hereto attached.
You will further take notice that the arbitration of said claim
in accordance with the provisions of Act No. 10 of the Public
Acts of 1912, extra session, will be held on the day of
at
in the town of , county of , State of Mich-
igan, commencing at o'clock in the noon
of said day; and that said applicant(s) and said respondent(s) are
each required to name one member of the committee of arbitration
provided for in said act within seven days after receiving this no-
tice, and to give notice of such selection to the said Board at its
office in the city of Lansing.
You are further notified to be present at the time and place fixed
for said hearing and arbitration, and to be prepared to proceed
with the same.
INDUSTRIAL ACCIDENT BOARD,
By
Secretary.
Dated at Lansing, Michigan, this day of , 191 . .
852 bradbury's workmen's compensation law
Michigan
FORM NO. 15
Notice of appointment of member of committee of arbitration
Applicant,
vs.
*
Respondent^).
To the Industrial Accident Board,
Lansing, Michigan.
Gentlemen:
You are hereby notified that
whose postoffice address is
has been chosen as a member of the committee of arbitration in the
above-entitled matter by the undersigned.
(Applicant.) (Respondentia].)
Dated at , this day of , 191
NOTE — If this blank is filled out by the applicant, the word "respondent^)" should be
crossed'out under the signature. If filled out Tby the respondent(s), the word "applicant"
should be crossed out in the manner above indicated. Please fill out the above blank and for-
ward to the Industrial Accident Board, Lansing, Michigan, in the enclosed envelope within
seven days after it is received by you. Write the full name of the member of the committee of
arbitration chosen by you as plainly as possible.
FORM NO. 17
Award on arbitration
Applicant,
vs.
Respondent(s).
Notice and application for adjustment of claim for compensation
having been filed with said Board in the above-entitled matter,
and thereafter said Board having requested both of the parties to
appoint their respective representatives on the committee of ar-
bitration, and said committee of arbitration having been duly
formed, consisting of
representing said applicant, and
representing said respondent(s), and
ADMINISTRATION AND PROCEDURE 853
Michigan
member of the Industrial Accident Board, as chairman thereof;
and said matter having come on to be heard before the aforesaid
arbitration committee at in the city
of , county of , and State
of Michigan, on the day of , 19 . . , at
o'clock in the noon, and after hearing the proofs and al-
legations of the said applicant(s) and said respondent(s), and said
committee having made careful inquiry and investigation of said
matter and being fully advised in the premises, doth find, deter-
mine and adjudge that the said applicant, ,
is entitled to receive and recover from said respond-
ent(s) the sum of dollars per week
for a period of
weeks, from the day of , 191., and that said ap-
plicant is entitled to receive and recover from said re-
spondent(s) on this date dollars, being
the amount of such compensation that has already become due
under the provisions of law, the remainder of said award to be paid
to said , applicant, by said respondent(s) in
weekly payments, commencing one week from the date of the
award.
Committee of Arbitration.
By
Chairman.
Dated and entered this day of , A. D. 19. ..
FORM NO. 18
Stipulation, and waiver of arbitration
Applicant,
vs.
Respondent(s).
The facts in this case being undisputed and the only matter in
difference between the parties hereto being the construction and
application to said facts of the Workmen's Compensation Law,
being Act No. 10, Public Acts 1912, extra session, and the parties
854 bradbury's workmen's compensation law
Michigan
hereto desiring to obtain a decision of said matter by the full board
without resorting to arbitration, do hereby stipulate and agree
as follows:
1. That the accident to the employe^ upon which the claim for
compensation in this cause is based, occurred on the
day of , 19. . in the town of
county of State of Michigan, and that the
same arose out of and in the course of his employment. That the
character and nature of the injury and the result thereof is as
follows:
(State in detail the nature of the injury, disability or death resulting, etc.)
2. That the facts relating to the wages of
said employ6 are as follows:
If average weekly wage is undisputed, so state; if disputed, state
all material facts relating to same
3. The other material facts in said cause not included in para-
graphs 1 and 2 are as follows:
4. That the arbitration of the matters in difference between the
parties hereto, provided for in said Workmen's Compensation Law,
be and the same is hereby waived, and the decision of said matters
is hereby submitted to the Industrial Accident Board, sitting as a
full board, the same as if this cause had proceeded to arbitration
under said law, and the decision on arbitration therein had been
appealed from and said cause thereby brought before the full
board on appeal from such decision. It is further stipulated and
agreed that the decision of said board in this cause pursuant to
this stipulation, and based upon the facts set forth herein shall be
valid and binding, and shall have the same validity, force and
effect as if said cause had proceeded to arbitration in due course,
and was brought before the full board on appeal duly taken from
the decision of an arbitration committee therein.
In witness whereof the parties hereto have signed this stipulation
at in the county of State of
Michigan, this day of , 191 . .
Signed in presence of
(Applicant.)
(Respondents.)
ADMINISTRATION AND PROCEDURE 855
Michigan
State of Michigan,
County of
ss.
On this day of , 19. . .
before me , a notary
public in and for said county personally appeared
known to me to be the persons described in and who signed the
foregoing stipulation, and acknowledged that they signed the
same as their free act and deed. And I further certify that I read
over all of said stipulation to said persons, and fully acquainted
them with the contents thereof before the same was acknowledged
and signed by him (them).
Notary Public.
My commission expires the day of , 19. ..
State of Michigan,
County of
ss.
On this day of , 19. . .
before me , a notary
public in and for said county personally appeared
known to me to be the person who signed the foregoing stipulation
on behalf of
the employer therein mentioned, and acknowledged that he ex-
ecuted the same on behalf of said
being duly authorized so to do, and that the same is his free act and
deed as for said employer.
(State position or office.)
Notary Public.
My commission expires on the day of , 19. . .
FORM NO. 19
Application for review of claim before full board
(Part 3, §§ 11 and 12)
To the Industrial Accident Board, Lansing, Mich.
Gentlemen: — The undersigned, as provided in Part 3,' Sec. 8, of
Act No. 10, Public Acts 1912, makes application for a review of the
856 bradbury's workmen's compensation law
Minnesota
findings of the Committee on Arbitration in the claim of . . .
This claim for review is based on the following grounds:
vs.
»
Dated at this day of ,19.
MINNESOTA
The parties may settle all questions relating to compensa-
tion between themselves. Part II, § 22. But the settle-
ment must be approved by a judge of the District Court.
Part II, § 22. Upon failure of the employer to pay the com-
pensation for thirty days in accordance with the approved
agreement the employe may apply, upon a notice of five
days, for judgment, and such judgment shall have the same
force and effect and may be specified as other judgments
of the same court. Part II, § 22. In case of dispute the
matter may be submitted to a judge of the District Court
who is authorized to hear the case in a summary manner
and his decision on all questions of fact is conclusive, sub-
ject to the right of appeal on questions of law. Part II,
§ 22 (2). The Labor Commissioner of the State has general
supervision of the Act and is required to advise employes
of their rights thereunder. Part II, §§ 24 and 28. The
specific procedure in case of dispute is provided for in
Part II, § 30.
ADMINISTRATION AND PROCEDURE 857
Minnesota
FORM
Settlement disability case
State of Minnesota,
County of » .
In the matter of compensation for injury
To Employe"
Against Employer
and Insurer
District Court
Judicial District
Settlement and
Petition.
The undersigned, being the only parties interested in the above-
entitled matter, hereby petition the Court for approval of the
following agreement and settlement, and agree and represent to the
Court as follows:
That they are subject to the provisions of Part II of Chapter 467
of the Laws of Minnesota of 1913; that the said Employe^ aged
years, residing at Minnesota, who can
(cannot) read and understand the English language, did, on
, 191., at o'clock M.,
sustain injury by accident while employed by said Employer, which
injury occurred at and resulted in
(Permanent Total, Permanent Partial, or Temporary.)
disability of said Employe, and consisted of
that said Employ^ was receiving at the time of the injury wages
at the rate of $ per week;
Therefore, it is hereby agreed that the Employe" is entitled to
and shall receive compensation for said injury from the Employer,
beginning , 191 . , at the rate of $
per week during disability (or) for weeks, payable
as follows:
all subject to the
limitations of said Act; and the Employe" agrees to give proper
receipts for each payment made hereunder.
The Employe" hereby acknowledges that he has received to date
medical and surgical treatment and benefits given by Section 18,
Part II, of said Act, and the Employer agrees to continue to fur-
nish the same, if ariy be necessary, to the extent and in the manner
required by said Section. The Employe" agrees to present himself
858 bradbury's workmen's compensation law
Minnesota
for examination, or if physically unable to do so, to submit himself
to examination by the physician or physicians designated by the
Employer, when requested.
This settlement is substantially in accordance with Sections 13
and 14 of said Act. When all payments hereunder have been made
the Employer shall be, and hereby is, released from all claims on
account of said injury, under said Act or otherwise. This settle-
ment contains the whole agreement between the parties hereto.
Dated at 191..
Witnessed by
Employe"
Employer
By
Insurer of Employer
State of Minnesota,
County of
On this day of A. D. 191.,
before me, a Notary Public within and for said County and State,
personally appeared to me known to be the iden-
tical person described in the foregoing instrument as Employe^ and
acknowledged that the same is true; and that, after reading the
same (or) having the same read to , and with a full un-
derstanding of the terms and the effect thereof,
executed the same as free act and deed and for the
uses and purposes therein expressed.
Notary Public, County, Minn.
My commission expires 19. ..
INTERPRETER'S OATH
State of Minnesota,
County of '
I, residing at
do hereby on my oath say, that I understand, read and speak
ADMINISTRATION AND PROCEDURE
859
Minnesota
readily the English language; that I correctly read over to
said injured Employe, and correctly interpreted to
in own language, the true and correct meaning
of each word in the foregoing instrument and the acknowledgment
thereof; and that executed said instrument and acknowl-
edged the execution of the same after I had interpreted and fully
explained the same to ; and I further say that I am con-
versant with the language spoken by said injured Employe, which
is that of
Subscribed and sworn to before me this
day of , 191..
Notary Public
County, Minn.
My commission expires , 19. ..
Interpreter.
PHYSICIAN'S CERTIFICATE
State of Minnesota,
County of
I, residing at
upon oath say, that I am a physician, duly licensed to practice in
the State of Minnesota; that I professionally attended
the person described as Employe" in the foregoing instrument; that
injury and the nature and extent of disability
are as follows:
Subscribed and sworn to before me
this day of ,191.
Notary Public
County, Minn.
My commission expires , 19 . . .
M. D.
8G0 BRADBURY'S WORKMEN'S COMPENSATION LAW
Minnesota
District Court
Judicial District.
Order Approving
Settlement and
Petition.
State of Minnesota,
County of
In the matter of compensation for injury
To Employe"
Against Employer
and Insurer
Upon reading and filing the foregoing settlement and agreement
and joint petitiorfof the parties, and being fully advised in the
premises, and it appearing that the allegations of said petition are
true and that said settlement is substantially in accordance with
the provisions of Part II of Chapter 467 of the Laws of Minnesota
of 1913, and Sections 13 and 14 thereof,
It is obdeked, That the said settlement, release and petition be,
and the same hereby are approved, and that the parties in all things
conform thereto.
Judge of District Court.
Dated at Minnesota, 191 . .
FORM
Settlement death case
District Court
" Judicial District.
Settlement and
Petition.
State of Minnesota,
County of
In the matter of compensation for injury
To Employe"
Against Employer
and
Insurer of Employer
The undersigned, being the only parties interested in the above-
entitled matter, hereby petition the Court for approval of the
following agreement and settlement, and agree and represent to
the Court as follows:
That they are subject to the provisions of Part II of Chapter 467
of the Laws of Minnesota of 1913; that said Employ^, aged
years, residing at Street,
City of State of Minnesota, did, on 191.,
at o'clock. . . .M., sustain injury while employed by said
Employer, which injury occurred at
(Here state exactly where accident occurred.)
ADMINISTRATION AND PROCEDURE 861
Minnesota
and resulted in the death of said Employe" on 191 . ; that
said deceased Employe" was receiving at the time of the injury
wages at the rate of $ per week; that
(Here state name, age, relationship and address of each dependent.)
and no others were his dependents at the date of his death who
were dependent upon him at the time of the injury;
(Wholly or partially.)
and that of such dependents
(Names of those who can read English.)
can, and cannot read
(Names of those who cannot read English.)
and understand the English language;
Therefore, it is hereby agreed that said dependents are entitled
to and shall receive compensation for said injury and death from
the Employer, beginning , 191 . , at the rate of
$ per week in the aggregate, during dependency, payable
as follows:
all subject to the limitations of said Act; and the said dependents
agree to give proper receipts for each payment made hereunder.
The dependents hereby acknowledge that all medical and surgical
treatment and benefits given by Section 18 of Part II of said Act
have been furnished. This settlement is substantially in ac-
cordance with Sections 13 and 14 of said Act. When all payments
hereunder have been' made the Employer shall be, and hereby is,
released from all claims on account of said injury and death under
said Act or otherwise. This settlement contains the whole agree-
ment between the parties hereto.
Dated this day of , 191 . .
Witnessed by
Dependents of Deceased Employe"
Employer
By
Insurer of Employer
By
862 bradbury'b workmen's compensation law
Minnesota
State of Minnesota, j
County of J
On this day of A. D. 191 , before me,
a Notary Public within and for said County and State, personally
appeared to me known to
be the identical persons described in the foregoing instrument as
dependents, and who executed said instrument as such, and each
acknowledged that the same is true; and that, after reading the
same (or) having the same read to him (or her), and with a full
understanding of the terms and effect thereof, he (or she) executed
the same as his (or her) free and voluntary act and deed for the
uses and purposes therein expressed.
Notary Public County, Minn.
My commission expires 19. .
INTERPRETER'S OATH
ss.
State of Minnesota,
County of
I, , residing at
do hereby on my oath say, that I understand, read and speak
readily the English language, and that I correctly read over to
dependents of said deceased,
and correctly interpreted to them (him or her) in their (his or her)
own language, the true and correct meaning of each word in the
foregoing instrument and the acknowledgment thereof; and that
they (he or she) executed said instrument and acknowledged +he
execution of the same after I had interpreted and fully explained
the same to them (him or her) ; and I further say that I am conver-
sant with the language spoken by said dependents, which is that
of
Subscribed and sworn to before me this
day of , 191..
Notary Public
County, Minn.
My commission expires . . . , 19 . . .
Interpreter.
ADMINISTRATION AND PROCEDURE 863
Nevada
District Court
Judicial District.
Order Approving
Settlement and
Petition.
State of Minnesota,
County of
In the matter of compensation for injury
To Employe"
Against Employer
and
Insurer of Employer
Upon reading and filing the foregoing settlement and agreement
and joint petition of the parties, and being fully advised in the
premises, and it appearing that the allegations of said petition are
true and that said settlement is substantially in accordance with
the provisions of Part II of Chapter 467 of the Laws of Minnesota
of 1913, and Sections 13 and 14 thereof,
It is ordered, That the said settlement, release and petition
be, and the same hereby are approved, and that the parties in all
things conform thereto.
Judge of District Court
Dated at Minnesota, 191..
NEBRASKA
The parties may settle all matters of compensation be-
tween themselves. § 36. In case of dispute the matter
is submitted to arbitration if both parties agree. § 37. In
case the parties do not agree to arbitrate the matter either
party may file a petition in the District Court and power is
given to this tribunal to hear the matter in a summary
manner. § 39. Appeals are allowed as in other cases.
NEVADA *
The Nevada Act provides for a State insurance fund ad-
>PART I
Rules and Directions for Employers
1. Whenever an accident occurs to any workman (in your mine, plant,
or establishment) it shall be the duty of the employer to at once report
864 bradbury's workmen's compensation Law
Nevada
ministered by the Nevada Industrial Commission. All
such accident to the Commission, for which use Industrial Commission
Blank No. 21. Blank reports for such purpose may be secured by apply-
ing for same to the Commission. These reports must be filled out ac-
curately, immediately, and in detail as required, by Section 33 of the law
and the rules and regulations of the Commission.
2. Where an injured workman files a claim for compensation, it shall
be the duty of the physician and also of the employer, to inform and ad-
vise the injured workman (or his relatives or dependents, in case of his
death) of his rights under the Nevada Industrial Insurance Act, and to
lend all necessary assistance in aiding the workman in making his claim
and such proof as the Commission may require. Such assistance is to be
"without charge to the workman," as required and provided in Section 34
of the law. Blanks for filing claims for compensation (Form Nos. 21 and
22) will be sent to the different employers, and if not, may be secured by
writing to the Commission. Each employer should have these and other
blanks on hand at all times so that prompt reports may be made to the
Commission of all accidents.
3. Each employer should assist his injured employe's in securing their
rights under the law. The entire matter is between the employer, employe^
and the Nevada Industrial Commission. In assisting your injured work-
men and doing all that you can for their benefit or relief, you in ho way
injure or prejudice yourself. Such assistance will tend to produce more
cordial relations between employer and workmen, and greatly expedite
and facilitate the operation and administration of the law. In all matters
of doubt or dispute address the Commission direct. No claim for com-
pensation is valid unless filed within one year after date of injury, and
all workmen should be so advised.
4. Section 29 of the law specifically provides that no employer of work-
men shall exempt himself of the burden, or waive the benefits of the law,
by any contract, rule, or regulation, and any such contract, rule, or regu-
lation shall be void.
5. Employers should inform and advise their injured workmen that
Section 28 of the law provides that no money paid or payable under the
Nevada Industrial Insurance Act shall, prior to issuance and delivery
of the warrant, be assigned, charged, or even be taken in execution, or
attached and garnished, nor shall be passed to any other person by opera-
tion of law. Any such assignment or charge shall be void.
6. Section 39 of the law relating to employer's responsibility for safe-
guards, and inflicting heavy penalties in case of injury due to the absence
of safeguards, should be maintained, and all departmental rulings under
any statute strictly observed. Otherwise serious penalties may be im-
ADMINISTRATION AND PROCEDURE 865
Nevada
claims for compensation are made to the Commission on
blanks supplied by that body.
posed in. case of accident. If any workman remove any such safeguard
this Commission should be advised. (See, also, Section 22 of Act.)
7. Section 37 of the law relating to employers who fail or refuse to make
their payments into the Insurance Fund should be carefully observed.
Default in the payment of any premium means great risk and peril on
the part of the defaulting employer.
8. Employers should notify this Commission of any work or establish-
ment which, because of poor, careless, or negligent management, is un-
duly dangerous and hazardous in comparison with other like or similar
works or establishments. This notice is necessary in order to protect
the careful employer. (See Section 22 of Act.)
9. The attention of the employer is directed to Section 36 of the law
which imposes an extremely heavy penalty for misrepresenting to the
Commission the amount. of the payroll upon which the employer's pre-
mium under the law is based. The employer who so misrepresents is
liable to the Commission ten (10) times the amount of the difference in
premium paid and the amount the employer should have paid. The travel-
ing Auditors of the Commission will at all times assist the employers in
computing their premiums under the law. If any employer misrepresents
his payroll, you should so advise the Commission. Such misrepresenta-
tions means loss to you eventually, and not to the Industrial Commission.
10. The Nevada Industrial Insurance Act in no way interferes with
any of the usual hospital arrangements between employers and employes.
Whenever possible it is desirable that such arrangements be continued in
order that injured workmen may receive immediate hospital and medical
attention.
11. The employment of competent foremen and superintendents and
the exercise of care in the management of all establishments within the
scope of the law, is necessary in order to reduce accidents to a minimum.
The premium rate will depend entirely upon the number of accidents to
workmen.
12. When any new industry is started, or any suspended business re-
sumes operation, the Commission should be advised so that payrolls can
be secured and the new or revived industry subjected to the requirements
of the law.
13. Employers desiring copies of the Nevada Industrial Insurance Act
may secure the same by applying to the Commission. Any other data
with reference to the law, its administration or operation, may be secured
from the Commission.
14. All statutes relating to safeguards and protection of machinery,
55
866 bradbury's workmen's compensation law
Nevada
and all departmental rulings or regulations with reference thereto, should
be carefully complied with and observed. One of the chief purposes of the
law is to reduce and minimize accidents, and conserve human life and
limb. Employes as well as employers should constantly bear this fact
in mind.
15. Section 35 of the law provides that the books, records, and pay-
rolls of the employer, pertinent to the administration of the Act, shall
always be open to inspection by the Commission or its traveling auditor,
agent or assistant, f6V the purpose of ascertaining the correctness of the
payroll, the men employed, and such other information as may be neces-
sary for the department and its management under this Act. Refusal to
permit such inspection is made a crime.
16. The Commission shall be in continuous session and open for the
transaction of business during all the business hours of each and every
day excepting Sundays and legal holidays. All sessions shall be open to
the public, and shall stand and be adjourned without further notice
thereof on its records. All proceedings of the Commission shall be shown
on its record of proceedings, which shall be a public record, and shall con-
tain a record of each case considered, and the award made with respect
thereto, and all voting shall be had by the calling of each member's name
by the Secretary, and each vote shall be considered as cast.
PART II
Rules and Directions for Workmen
1. Any injured workman entitled to compensation under the law must
file at once with the Commission his claim for compensation on Form
No. 22. These claim blanks can be secured by writing direct to the
Commission, Carson City, Nevada.
2. The injured workman must also file at once with the Commission
the certificate or report of the physician who attended him. This report is
Form No. 23 of the Commission, and may be secured by workmen or
physicians at the above office.
3. Section 34 of the law requires the attending physician to assist the
injured workman in making application for compensation.
4. In case of death the relatives or dependents of the deceased workman
must file claim for compensation upon blank forms to be furnished by the
Commission.
5. No claim for compensation will be considered, and no compensation
awarded unless all necessary blanks furnished and required by the Com-
mission are filled out accurately, carefully and completely to the satisfac-
tion of the Commission.
ADMINISTRATION AND PROCEDURE 867
New Jersey
6. No claim for compensation by any injured workman will be con-
sidered unless filed within one year after date of injury. Section 34 (d).
7. Whenever requested by the Commission, any injured workman shall
submit to a medical examination by one of the Commission's examining
physicians. In case of refusal to submit to such examination all compensa-
tion will be suspended, and nothing further will be done in the considera-
tion of the claim for compensation until the necessary and required official
examination occurs.
8. In case of removal of any safeguard or protective device on ma-
chinery by the superintendent, foreman, or any other person, the Commis-
sion should be immediately notified. If any injury results to any workman
because of the removal of any safeguard by himself, then in such case the
workman's compensation is reduced 25 per cent.
9. In case of injury the workman should consult the employer or
address this Commission at once for blank forms upon which to make
claim for compensation. Litigation under the law is unnecessary and
would be useless, before addressing the Commission.
10. Whenever necessary the Commission' reserves the right to supervise
the medical, surgical, and hospital treatment of the injured workman.
11. All workmen should assist each other and their employers in the
earnest attempt to avoid accidents. Fewer accidents mean less pain,
happier homes, and greater prosperity.
These rules are subject to amendment, change or alteration by the
Commission at any time, as experience and observation shall dictate.
Due notice of change of rules will be given.
NEW HAMPSHIRE
Any question as to compensation may be determined by
agreement or in an action in equity if the parties cannot
agree. § 9.
NEW JERSEY 1
The parties may agree as to compensation claims but if
they fail to agree either party may submit his claim, both
1 Under the New Jersey Workmen's Compensation Act the burden of
proving that the employe's death was caused by "an accident arising
out of and in the course of the employment" rests upon the claimant.
BnjoM v. Fissell, 000 N. J. Law 000; 86 Atl. Rep. 458.
An action for the computation of compensation under Section 12 of the
868 bradbury's workmen's compensation law
New Jersey
as to questions of fact and the nature and effect of the in-
juries and the amount of compensation therefor to a judge
of the Court of Common Pleas who would have jurisdiction
of a civil action between the parties. § 2, subd. 18. Either
party may present a petition setting forth the matters
specified in the statute, and a copy of the petition with a
notice of hearing, must be served on the other party. Upon
the return of the notice the matter is heard by the court
without a jury. § 2, subd. 20.
While there is no special provision requiring that agree-
ments for compensation must be approved the following
is to be found in § 2, subd. 20.
"No agreement between the parties for a lesser sum than
that which may be determined by the judge of the Court of
Common Pleas to be determined shall operate as a bar to
the determination of a controversy upon its merits, or to the
award of a larger sum, if it shall be determined by the said
judge that the amount agreed upon is less than the in-
jured employd or his dependents are properly entitled to
receive."
FORM
Petition
To the Honorable Howard Carrow, Judge of the Court of Com-
mon Pleas of the County of Camden:
The petition of Harry Fisher, of No. 211 Mount Vernon Street,
Camden, New Jersey, respectfully shows unto your Honor:
1. That prior to and on the third day of June, nineteen hundred
and twelve, he was employed by Louis Ballinger, a stevedore, of
the City and County of Camden, and State of New Jersey, as en-
gineer of a hoisting engine located at the end of the wharf of the
MacAndrews & Forbes Licorice Works.
New Jersey Workmen's Compensation Act may be brought by the person
to whom payment is to be made under Section 19. McFarland v. Central
R. R. Co., 000 N. J. Law; 87 Atl. Rep. 44.
ADMINISTRATION AND MtOCEDIJRE 869
New Jersey
2. That on the said third day of June, nineteen hundred and
twelve, while at work for the said Louis Ballinger at the end of the
wharf of the MacAndrews & Forbes Licorice Works, and while en-
gaged at his usual employment, your petitioner was injured by
having his right foot crushed between the fly wheel of the engine
which he was operating in the usual course of his employment and
the connecting rod, connecting the fly wheel with the piston, with-
out any fault or negligence on his part, whereby your petitioner lost
the two toes adjoining the big toe on his right foot, splitting the
foot open across the ball of the foot, and that by reason of which
injuries he suffered intense pain and agony, and that he is unable
as yet to move around without the aid of crutches, and that it is
likely to be a long time before your petitioner will be able to get
along by walking on his feet in the natural way.
3. That the average weekly wages of the said Harry Fisher were
Thirteen Dollars per week.
4. That the said Louis Ballinger was present when the above
accident happened and when the injury was sustained by your
petitioner, and, therefore, had actual knowledge of the occurrence
of the injury above set forth immediately after the same happened.
5. That by virtue of the provisions of an act of the Legislature of
the State of New Jersey, entitled, "An Act prescribing the liability
of an employer to make compensation for injuries received by an
employe* establishing an elective schedule of compensation, and
regulating procedure for the determination of liability and com-
pensation thereunder." Approved April 4th, 1911, and the acts
supplemental thereto and amendatory thereof, the said Louis
Ballinger was bound to furnish reasonable medical and hospital
service and medicine for two weeks after the occurrence of said
injury and after the expiration of two weeks after the occurrence
of said injury was bound to pay unto your petitioner fifty per cen-
tum of the weekly wages received at the time of the injury, during
the period of such disability, not to exceed the term of three hun-
dred weeks.
6. That your petitioner and Louis Ballinger are unable to agree
upon the amount to be paid.
7. Your petitioner therefore asks that your Honor will hear in a
summary manner the matters in dispute both as to the matters of
fact and the amount of compensation to be made to your peti-
870 bbadbury's workmen's compensation law
New Jersey
tioner, and will direct compensation to be made weekly or in one
or more lump sums as may appear to your Honor to be proper.
Harry Fisher,
Petitioner.
State of New Jersey,
County of Camden.
ss.
Harry Fisher, o£ full age being duly sworn according to law on
his oath says, that he is the petitioner in the foregoing petition
named and that the matters and facts therein set forth are true.
Harry Fisher.
Sworn and subscribed to before me
this 14th day of September, A. D.,
1912.
Lawrence M. Verga,
Notary Public of New Jersey.
FORM
Order for Hearing
Before Honorable Howard Carrow, Judge of the Court of Common
Pleas of the County of Camden:
In the Matter of the Petition of
Harry Fisher, for compensation
to be made by Louis Ballinger,
under the provisions of the Em-
ployers' Liability Acts.
Upon reading and filing the petition of Harry Fisher, the peti-
tioner herein, I, Howard Carrow, Judge of the Court of Common
Pleas of the County of Camden, do order, that Friday, the eleventh
day of October, nineteen hundred and twelve, at ten o'clock in the
forenoon of said day, or as soon thereafter as the same can be
heard, at the court house in the City of Camden, in the State of
New Jersey, be and the same is hereby fixed as the time and place
for the hearing of said petition.
Dated September 14th, 1912.
Howard Carrow,
Judge.
On Petition
Order.
ADMINISTRATION AND PROCEDURE 871
New Jersey
FORM
Notice of Hearing
Before Honorable Howard Carrow, Justice of the Court of Com-
mon Pleas of the County of Camden.
In the matter of the petition of
Harry Fisher, for compensa-
tion to be made by Louis Bal-
linger, under the provision of
the Employers' Liability Acts.
On Petition
Notice.
To Louis Ballinger:
Take Notice, That Harry Fisher, who was injured while work-
ing for you at his usual employment on the third day of June, nine-
teen hundred and twelve, has filed a petition addressed to the
Honorable Howard Carrow, Judge of the Court of Common Pleas
of the County of Camden, for compensation under an Act of the
Legislature of the State of New Jersey, entitled "An Act prescrib-
ing the liability of an employer to make compensation for injuries
received by an employe in the course of employment establishing
an elective schedule of compensation, and regulating procedure for
the determination of liability and compensation thereunder."
And the Judge has fixed the Friday, the eleventh day of October,
nineteen hundred and twelve, at the Court House, in the City of
Camden, at the hour of ten o'clock in the forenoon or as soon there-
after as the same may be heard as the time and place to hear the
same; and take further notice that at the time and place aforesaid
I shall move the hearing of said matter.
That annexed hereto and served herewith is a copy of the peti-
tion and order in the above matter.
Eknest L. Bartelt,
Attorney for Harry Fisher. .
872 bkadbury's workmen's compensation law
New Jersey
FORM
Determination and finding of fact '
Hudson County Court of Common Pleas.
May Callagy,
Petitioner,
vs. *
New Jersey Embroidery Works,
a corporation,
Respondent.
A petition having been filed in the above stated cause by the
petitioner, wherein she claims compensation by virtue of the
terms and provisions of an act of the Legislature of the State of
New Jersey entitled "An act prescribing the liability of an em-
ployer to make compensation for injuries received by an employe
in the course of employment, establishing an elective schedule of
compensation and regulating procedure for the determination of
liability and compensation thereunder," (Approved April 4, 1911)
and a time and place for the hearing of said cause having been
fixed, and an appearance and answer having been entered and filed
by the respondent, and service of the petition having been waived,
and the witnesses for both parties having appeared before me and
given their testimony at the time and place fixed for said hearing:
I do hereby find and determine as follows: That on the thirteenth
day of January, 1912, the petitioner while in the employ of the
respondent as a shuttle girl, received certain injuries as a result of
which the flesh of the index finger of her right hand was crushed,
her nail lost and her finger disfigured, but no bones broken; that
the said injury resulted directly from an accident arising out of
and in the course of petitioner's employment; that at the time
of the accident petitioner was receiving Four Dollars and Fifty
Cents a week as wages; that the petitioner is entitled to the sum of
1 Under § 2, subd. 20 of the New Jersey Act the Court of Common
Pleas should make a statement of the facts found by it in determining the
case and not merely refer to the petition and state that the facts are
found as therein set forth. Long v. Bergen Common Pleas, 36 N. J. Law.
J., 246; 000 N.J. Law 000,
ADMINISTRATION AND PROCEDURE 873
, New York
Ten Dollars being a sum equal to four weeks' wages and Seventeen
Dollars doctor's bills, or a total of Twenty-seven Dollars.
Robert Carey,
Judge of Hudson County
Court of Common Pleas.
NEW YORK
The entire administration of the Act is under the juris-
diction of the Workmen's Compensation Commission of five
members, which is created by § 60. This Commission has
power to appoint as many deputy Commissioners as it may
deem necessary, which deputy Commissioners hold office
during the pleasure of the Commission. § 61. It also ap-
points a secretary, an actuary, accountants, medical doc-
tors, clerks, stenographers, inspectors and other employes.
The authority, duties and compensation of all subordinates
and employe's, except as otherwise specifically provided in
the law, are fixed by the Commission. § 61. The Commis-
sion has power to adopt rules. § 61. And it may do all
things incidental to the hearing of cases and determining all
controversies in relation to compensation claims. §§ 68
to 76 inclusive. It also has power to establish a State In-
surance fund. §§ 90 to 105 inclusive.
There is no provision in the Act for agreements between
employers and employes as to compensation, either by the
approval of the Commission or otherwise. Apparently,
the only method of making compensation payments is for
the employe or dependent to present a claim for compensa-
tion to the Commission. The Commission then makes an
investigation and orders a hearing, after which it makes an
award. § 20.
"The Commission may, before making an award, require
the claimant to appear before an arbitration committee
appointed by it and consisting of one representative of em-
ployes, one representative of employers, and either a member
874 bradbury's workmen's compensation law
Ohio
of the Commission or a person specially deputized by the,
Commission to act as chairman, before which the evidence in
regard to the claim shall be adduced and by which it shall
be considered and reported upon." § 20. It will be seen
by the above that neither party is given the power to select
the arbitrator representing him. The Commission appoints
the arbitrators* the requirement merely being that one shall
be "representative of employes" and the other "represent-
ative of employers." The Commission may or may not
follow the decision of the arbitrators but upon all questions
of fact the decision of the Commission is final. § 20. After
an award compensation payments are not made direct, by
either an employer or an insurance company, to the employe1
or dependent, but the money must be sent to the Commis-
sion and by it paid to the employe. § 25.
OHIO1
The administration of the Ohio Act is entirely within the
jurisdiction of the Ohio Industrial Commission, which, by
the supplemental act taking effect March 18, 1913 (103
Ohio Laws, 95; See Chap. 24 hereof), supersedes the State
Liability Board of Awards, although the name of the Board
is not changed in the Compensation Act proper by any
amendment to that Act. All claims for compensation,
whether against the State insurance fund or against individ-
uals who are permitted to carry their own insurance, must
1 See Act approved May 3, 1913, in effect Aug. 7, 1913 (103 Ohio Laws,
396) providing that in the case of alien, non-resident dependents, informa-
tion in relation thereto shall be furnished to the Commission by the
respective foreign consuls.
The burden of proof in all claims for compensation rests upon the
applicant to furnish convincing proof to the Board as to every jurisdic-
tional fact, or to furnish proof of facts from which such jurisdictional
facts may be clearly deduced. Where, therefore, an employe' is taken
ill while at work and dies soon thereafter, there is no presumption that
he was killed in the course of his employment. Re Gertrude Patterson,
'Claim No. 1014, Ohio St. Lia. Bd. Awd., Dec. 16, 1912.
ADMINISTRATION AND PROCEDURE 875
Ohio
be presented to the Commission on blanks which are fur-
nished by the Commission, and these blanks must be used
in all cases. The rules of the Commission provide for a
preliminary notice which must be mailed within one week
after the date of the injury. Upon receiving this notice
blanks will be sent which must be filled out by the applicant
for compensation. These blanks should be secured from the
Ohio Industrial Commission, Columbus, Ohio.
There is no specific provision in the Act for agreements
between employers and employes as to the amount of com-
pensation, even though the employer is permitted to carry
his own risk but the Industrial Commission has adopted
rules 1 relating to such agreements as well as to the determi-
1 These rules are as follows:
"Rule 1. Employers who have elected to pay compensation, etc., di-
rect to their injured and the dependents of their killed employes shall
report each and every injury occurring to their employes, as required by
Sec. 52 of the compensation act, such reports to be made upon report
forms furnished by the Commission.
"Ride 2. It is the duty of the employer upon injury to any of his
employes in the course of their employment to promptly furnish com-
pensation, medical attendance, etc., to such injured employ^, or to their
dependents in case of death as the result of such injury, in accordance
with the provisions of the compensation act.
"Rule S. Within thirty days after agreement as to' the payment of
compensation to injured or the dependents of killed employes, and within
thirty days after furnishing medical, surgical, nursing or hospital attention
or medicines or funeral expenses, a statement of the same shall be filed with
The Industrial Commission.
"If the injury does not incapacitate the employe1 for a longer period
than one week, a simple statement by the employer of the amount or
value of the medical, surgical, nursing and hospital attention and medi-
cines will be sufficient.
"If the injury incapacitates the employe" for a longer period than one
week, such statement shall include the amount of medical, surgical, nurs-
ing and hospital attention and medicines and the amount of compensa-
tion agreed upon, and shall be signed by the employer and the injured
employ^.
"If the injury causes the death of the employe" within a period of
two years, such statement shall include the amount paid to the injured
876 Bradbury's workmen's compensation law
Ohio
nation of controversies arising between such employers and
employes.
employ^ prior to his death, and the amount agreed to be paid to his de-
pendents as defined in Section 35 of the act, and shall be signed by the
employer and the person or persons described in Section 36 of the act.
"Periodical payments required to be made by the compensation act
may be commuted to one or more lump sum payments only when the
approval of the Commission is given therefor. Either the employer or
the employe1 may make application for authority to make lump sum pay-
ments.
"No agreement made hereunder will be approved by the Commission
unless the same is in strict conformity with the provisions of the com-
pensation act as to the amount and method of payment of compensation
and the furnishing of medical attention, etc.
"Rule 4- Upon receipt of the statement required by Rule 3, the same
shall be filed and stamped with the date of its filing, and upon the expira-
tion of 60 days from and after the date of such filing, if the same appears to
be in conformity to the provisions of the compensation act, the same will
be approved and confirmed by the Commission, unless objection is made
thereto in the manner defined in the rule next following.
"Rule 5. Upon such statement or agreement being filed by the em-
ployer, the employe1 or beneficiaries shall be forthwith notified of the filing
of the same and that the same will be approved and confirmed by the
Commission at the end of 60 days from the filing of same, unless within
said sixty days objection in writing to such confirmation is filed with the
Commission either by the employe1 or beneficiary or by the employer.
"Ride 6. Objections to the confirmation of agreements as to com-
pensation provided for in Rule 5 hereof shall be in writing, shall state the
grounds of objection, and the request that the Commission may conduct
a hearing and fix the amount of compensation according to the facts and
the law governing the same; and upon filing the same if the objections
seem to possess merit a date shall be fixed for the hearing of the same
not later than 30 days after the filing thereof and notice of the filing of
said objections, the nature of the same and the time and place of such
hearing shall be mailed forthwith to the adverse party.
"The Commission shall furnish blanks for the filing of such objec-
tions free of charge upon application therefor.
"Rule 7. The Commission will not be bound by the usual common
law or statutory rules of evidence or any technical rules of procedure in
conducting hearings, but will conduct the hearing and make investigations
in reference to the questions at issue in such manner as in its judgment
ADMINISTRATION AND PROCEDURE 877
Ohio
is best calculated to ascertain and determine the substantial rights of the
parties and to carry out justly the spirit of the compensation act.
"Oral testimony may be offered by either party and depositions may
be filed. Depositions should be taken and filed in all respects as required
by statute in civil actions in the courts.
"Rule 8. If upon hearing the objections the facts appear as set forth
in the statement on file it will be the duty of the Commission to overrule
the objections, in which event the agreement of the parties contained in
said statement shall continue in full force; otherwise the objections may
be sustained and a finding of facts made in accordance with the proof
adduced at the hearing, and an award made in accordance with such
finding of facts, which award shall be substituted for the agreement con-
tained in statement required by Rule 3 hereof.
"Rule 9. In the event the employer and the injured employ^, or in
case of death the dependents of the killed employ^, do not arrive at an
agreement as to the nature and extent of the injury and the amount of
compensation, etc., to be paid or furnished by the employer to such em-
ploye1 or dependents within thirty days after such injury or death, or
within thirty days after the medical department certifies capacity on the
part of the employe1 or claimant to make an agreement, the employer or
such injured employe^ or his dependents in case of his death, may file an
application with the Industrial Commission for the purpose of having
the amount of such compensation, etc., determined in accordance with
the provisions of Section 27 of the compensation act.
"Rule 10. Upon the filing with the Commission of the application
provided for in Rule 9 the time and place of hearing said application,
should a hearing be granted, shall be fixed at least one week or not more
than three weeks after the filing thereof, and the employer shall forth-
with be notified by mail of the filing of said application and the contents
thereof, and of the time and place of such hearing.
"The hearing will be conducted, oral and other testimony taken, as is
provided in other cases.
"Rule 11. The policy of the Commission will be to determine all
questions brought before it as speedily as possible; but continuances of
hearings for any reasonable cause may be had upon the request of either
of the parties.
"The Commission will continue hearings upon its own motion only
when the volume of business is such as to demand it, or when the proof is
not satisfactory, or is insufficient.
"Rule 12. The employer may file an answer to the application of the
employe1 at any time before the date set for the hearing, but no answer is
necessary and in the event none is filed the allegations contained in the
application will be deemed to be denied by the employer.
878 BRADBURY'S WORKMEN'S COMPENSATION LAW
Rhode Island
"Rule 13. The Commission will prepare and furnish free of charge
all proper forms required by these rules and the provisions of the com-
pensation act and require that such forms be used in all instances where
prescribed.
"Rule 14.. The rules of the Commission are subject to alterations
or amendment at any time; and the Commission will make additional
rules, whenever, in its judgment, the same are necessary."
OREGON
The entire administration of the Oregon Act is under the
supervision of the State Industrial Accident Commission
which is created by § 2 of the Act. As an employer cannot
adopt the compensation principle except by contributing
to the State insurance fund all applications for compensation
must be made to the Industrial Accident Commission and
must be made on blanks prepared and furnished free by the
Commission. § 8. As the Oregon Act does not go into effect
until July 1, 1914, no rules have yet been made concerning
its administration.
RHODE ISLAND
Employers and employes can agree upon compensation
and such claims must be reduced to writing and filed with
the Clerk of the Superior Court. This agreement must be
approved by a justice of the same court after which it is
enforcible in the same manner as an execution on a judgment
in a civil action. Art. Ill, § 1. Upon failure to agree upon
the amount of compensation either party may file a petition
in the Superior Court in the nature of a petition in equity,
and the court then determines the matter, sitting as a court
of equity. Art. Ill, §§ 2 to 17, inc.
Administration and procedure 879
Texas
TEXAS1
The Act is administered by the Industrial Accident
Board which is created by Part 2, § 1. All questions arising
under the Act, if not settled by agreement of the parties, are
1 Rules Adopted by Industrial Accident Board
manner of giving notice by employer of acceptance of the act
Rule 1. Every subscriber shall, after receiving a policy, give notice in
writing or print, to all persons with whom he is about to enter into a
contract of hire, that he has provided for payment of compensation for
injuries by the Association. If any employer ceases to be a subscriber, he
shall on or before the day on which his policy expires, give notice to that
effect in writing or print to all persons under contract of hire with him. In
case of the renewal of his policy, no notice shall be required under this
Act. He shall file a copy of said notice with the Industrial Accident
Board. (Section 20, Part III of the Act) .
If personal service is not made of the notice as above required, said
notice may be given in printed or typewritten form by posting the same in
six or more conspicuous places where labor is employed, so that each and
every laborer may have an opportunity for seeing and reading the same.
MANNER OF GIVING NOTICE BY EMPLOYE TO EMPLOYER OF AN INJURY AND
CLAIM FOR COMPENSATION
Rule 2. In each instance the notice shall be served upon the employer, or
upon one employer if there are more employers than one, or upon any
agent, representative or manager of such employer or employers, or upon
any officer or agent of a corporation if the employer is a corporation, by
delivering the same to the person on whom it is to be served, or by leaving
it at his residence or place of business, or by sending it by registered mail
addressed to the person or corporation on whom it is to be served, at the
last known residence or place of business.
REPORT OF ACCIDENTS BY TEXAS EMPLOYERS' INSURANCE ASSOCIATION, OR
BY COMPANIES AND ASSOCIATIONS ISSUING POLICIES OF INSURANCE
UNDER THE EMPLOYERS' LIABILITY ACT TO THE INDUSTRIAL ACCIDENT
BOARD
Ride 3. The above designated association and companies shall report
all accidents within five days after the receipt of notice thereof by them
880 BRADBURy's WORKMEN'S COMPENSATION LAW
Texas
determined by the Board. Part 2, § 5. But any party who
is not willing to and does not consent to abide by the final
ruling and decision of the Board on any disputed claim,
may sue on such claim or may require suit to be brought
thereon in some court of competent jurisdiction, and the
Board shall proceed no further with the adjustment of the
claim. Part 2, § 5.
from any subscriber, by sending to the Industrial Accident Board a list or
brief statement of the same. This rule is not intended to supersede the
report required of the employer under Section 7, Part II of the Act.
SETTLEMENT OP CLAIMS
Ride 4- All settlements with employes by any insurance company or
association under the Employers' Liability Act shall be promptly reported
to the Industrial Accident Board with a statement of the terms of the
settlement, the name of the injured employ^, and also name of his em-
ployer, and dates of accident and settlement. Copies of all receipts of
payments for compensation from the injured employe1 to the insurance
company or association shall also be promptly sent by such association and
companies to the Board.
ASSOCIATIONS AND COMPANIES MUST NOTIFY INDUSTRIAL ACCIDENT BOARD
OF INSURANCE ISSUED UNDER EMPLOYERS' LIABILITY ACT
Rule 5. Associations and companies insuring under the Employers'
Liability Act shall notify the Industrial Accident Board of the names and
addresses of all employers who insure their liability under the Act, notice
to be given on the day of the issuance of such insurance and a further
notice to be given on the day when such employers cease to be so insured;
said notice will also give the character and location of the employers'
business and the number of his employes.
ASSOCIATIONS AND COMPANIES MUST FURNISH INDUSTRIAL ACCIDENT BOARD
WITH COPIES OF FORMS OF POLICIES, INDORSEMENTS, CONDITIONS OR
PROVISOS, THAT THEY ISSUE UNDER ACT
Rule 6. All associations and companies that are authorized or may be
authorized to issue policies of insurance under the Employers' Liability
Act, be and are hereby required to transmit to the Industrial Accident
Board copies of all forms of policies that they may issue under the Act,
together with such indorsements, conditions or provisos that may be at-
tached to such policies.
ADMINISTRATION AND PROCEDURE 881
West Virginia
FORM
Agreement in regard to compensation
We, , residing at
(Name of injured employe.)
city or town of , and the
(Name and address of insurance association or company.)
have reached an agreement in regard to compensation for the in-
jury sustained by said employe1 while in the employ of
(Here insert name and address of employer.)
(Here insert the time, including hour and date of accident, the place where it occurred, the
nature and cause of injury, and other cause or ground of claim.)
The terms of the agreement follow:
(Here state the sum per week and number of weeks agreed upon.)
(Witness.) (Name of injured employed)
(Name of insurance association or company.)
WASHINGTON
The Washington Act is a purely State insurance plan and is
administered by the Industrial Insurance Department which
is created by § 21. All reports, claims and other proceedings
must be in accordance with the rules of the Department
and on blanks furnished by the Department.
WEST VIRGINIA
The West Virginia Act creates a purely State insurance
plan and it is administered by the Public Service Commission
which is created by § 1 of the Act. All reports, claims and
other proceedings under the Act must be in accordance
56
882 bradbury's workmen's compensation law
West Virginia
with the rules J of the Commission, and on blanks furnished
by the Commission.
1 Rules op Procedure before the Public Service Commission (Divi-
sion B) Workmen's Compensation Fund (As Adopted Septem-
ber 1, 1913)
office hours
*
Rule 1 . The office hours of the Commission (Division B) will be from
9:00 o'clock a. m. to 12:00 m; and from 1:30 o'clock p. m. to 5:00 o'clock
p. M.
sessions of commission
Rule 2. Sessions of the Commission will be held regularly at its office
on the Third Floor of the Capitol Building in the City of Charleston,
beginning at 10:00 a. m. of each business day, and continuing until the
business of the day is completed: provided, that sessions may also be
held at any other place within the State should the business to be trans-
acted seem to require it.
FORMS PRESCRIBED
Rule 3. Printed forms of all notices, applications, proofs, certificates,
etc., necessary for perfecting of any claim before the Commission will be
furnished free of charge. Such forms must be used in all cases.
INJURY NOT RESULTING IN DEATH. NOTICE OF
Rule 4- Any employe" who has been injured in the course of his employ-
ment and who intends to file an application for an award, shall, within one
week from receiving such injury, notify or cause notice to be given the
Commission of the time, place and nature of his injury, and the name of his
employer. Forms of such notices can be obtained from the employer.
Such notices shall be mailed to the Public Service Commission, Division B,
Charleston, W. Va.
Upon receiving such notice the Commission will mail to the injured
employe1 proper forms and blanks for his use in perfecting his claim, and
notify the employer thereof. Unless such notice is given, no application
for award will be considered.
INJURY RESULTING IN DEATH, NOTICE OF
Rule S. When death results from an injury received by an employe' in
the course of his employment, notice of death must be given by the attend-
ADMINISTRATION AND PROCEDURE 883
West Virginia
ing physician, undertaker, employer, executor, administrator, or a de-
pendent within one week from the time of death.
NOTICE OP ACCIDENT BY EMPLOYER
Rule 6. Every employer is required to give notice to the Commission
within twenty-four hours after the accident, of the time, place, cause and
other circumstances attending the accident, and the nature and extent of
the injury.
The attending physician must report to the Commission within twenty-
four hours the time, place and cause of the injury and its nature and extent
and probable time of disability. Forms for these reports are furnished by
the Commission and must be kept on hand in the office of the employer.
These reports must be prepared by the employer and the attending
physician independently.
DOCKETING AND NUMBERING
Rule 7. Notices provided for by Rules 4 and 5 shall be numbered when
received by the Commission and entered upon the docket kept for the
purpose, and each paper thereafter filed in connection with the claim shall
be given the same number as the original notice.
APPLICATION — INJURY
Rule 8. Application for awards in all cases of injury not resulting in
death must be made by the party injured at once, and in every case within
six months after the injury is received. When the applicant claims money
to pay for medical and hospital services, or medicines, he shall authorize
the payment to be made directly to the person or persons rendering such
services, etc., in all cases where he has not already paid for the same.
FAILURE TO MAKE APPLICATION
Rule 9. In all cases of injury where medical services, etc., have been
rendered and furnished to the injured employe, and such injured employe1
fails or neglects to make application for money to pay for the same within
thirty days, or having made application and an award for such medical
services, etc., having been made, payable to the applicant, and the appli-
cant is not found at the address given in his application within thirty (30)
days after the making of the award, the money may be ordered by the
Commission to be paid to the person or persons rendering such services,
etc.
884 bradbury's workmen's compensation law
West Virginia
WAIVES OF EIGHT TO COMPENSATION
\
Rule 10. In all cases of injury where the preliminary notice provided
for by Rule 4 hereof has been given, and no application for compensation
has been made within the time provided by Rule 8 hereof, it shall be the
duty of the Secretary to notify the injured person by mail at his last known
address of his non-compliance with said Rule 8, inclosing him a copy
thereof 15 days before the lapse of six months from the date of his injury or
death, and should n© application be filed within two weeks after the date of
such notice, the Commission shall enter an order dismissing the applica-
tion, as barred by the statute.
APPLICATION — DEATH
Rule 11 . To obtain awards in cases of injury resulting in death within a
period of ninety days after the date of such injury (see Section 33), applica-
tion must be made by the executor, administrator or dependent of the
deceased, or by the attending physician or undertaker where there is no
dependent, within six months after the death of the injured employed
PBOOF
Rule 12. The proof of all claims shall be made by affidavit as far as
possible. But the Commission will, if in its judgment it is deemed neces-
sary, require medical or other examinations, including post mortems, and
may take oral testimony of witnesses, the claimant being notified of the
time, place and manner of taking the same. The Commission may also
hear any oral testimony offered by an applicant. Depositions of witnesses
may also be filed by an applicant, but notice of the time and place of taking
the same must be given to the Commission prior to their taking. Any
duly authorized inspector or auditor of the Commission shall have the
right at any time either before or after an award to make an investigation
as to the cause and extent of the injury for the purpose of ascertaining
facts. The proof in every instance must show clearly the rights of an
applicant to an award, and the amount thereof.
MEDICAL EXAMINATION, REFUSAL TO SUBMIT
Rule IS. In case the Commission, or its Chief Medical Examiner, orders
an injured employe to submit to ah examination by its Local Medical
Examiner, or by a physician specially designated by the Commission to
make such examination, and such examination is refused or shall in any
way he obstructed, his right to have his claim for compensation considered
shall be suspended during the period of such refusal or obstruction.
ADMINISTRATION AND PROCEDURE 885
West Virginia
employe's intention to leave locality, notice to be given
Rude 14. An injured employe1 who desires to leave the locality in which
he has been employed, during treatment of his injury, and goes into
another locality of the State, or into another State, shall report to the
Local Medical Examiner for examination, notify the Commission of such
intention to leave, and obtain the approval of the Commission, and send
with such notice a certificate from the attending physician, which shall
state the exact nature of the injury, together with length of time of dis-
ability present.
physician's reports, refusal to pill out
Rule IS. In case an attending physician refuses to fill out an attending
physician's report or itemize his physician's fee bill, or make an affidavit to
the same, on his claim for medical services rendered an injured applicant,
his claim for medical services shall not be considered during the period
of such refusal.
duty op claim clerk
Ride 16. The Commission Claim Clerk shall keep a record of the time
of filing all notices, applications, affidavits, statements, depositions,
medical and other forms of proof, and when the proof is seemingly com-
plete, shall assign the same for a hearing. He shall prepare a list of the
claims as assigned for each hearing day, which shall contain an abstract of
the proof on the questions necessary to be determined by the Commission,
and such other information as he may deem necessary to include therein,
and shall provide a copy of such list for each member of the Commission
and for the Secretary. Such original lists shall be preserved by him and
filed in his office with the papers in the claims to which they refer.
hearings
Ride 17. Applications for awards will be heard on Mondays of each
week, unless such day should be a legal holiday, in which event the day
following will be the hearing day. Applicants may appear either in person
or by agent or attorney. If no appearance is made, the application will be
heard and disposed of upon the proofs on file, if sufficient, or may be con-
tinued until a future day, or indefinitely, for attendance of applicant or
counsel, or for the furnishing of further proof.
notice op hearings
Rule 18. When the Claim Clerk assigns an application for hearing he
shall forthwith give the applicant notice by postal card of the time and
886 bradbury's workmen's compensation law
West Virginia
place of hearing, and at least five days shall elapse between the date of
mailing such notice and the date of hearing, unless the claim to be heard
involves only a claim for medical services, medicines or hospital services,
in which event no notice of the time and place of hearing need be given.
But the right to notice as provided herein may be waived by the applicant
at the time of filing his application, or at any time thereafter, and, if
waived, the claim will be heard as soon as may be after the completion of
the proof.
AWARDS
Rule 19. All awards other than for medical and surgical attention, and
for funeral expenses, shall be paid in monthly installments, unless other-
wise provided for by the Commission, and will be paid directly to the
applicant or dependent in all cases except where such applicant or de-
pendent is an infant of tender years, or under some legal disability, in
which event the award will be paid as provided by statute for the payment
of benefits in case of death.
In the case of temporary disability or partial impairment of earning
capacity, the Commission, when making the award, will fix a time at
which payments shall cease, unless the injured employe shall make it
appear that he is still incapacitated as a result of the injury for which the
award was originally made. In such case a modification of the terms of the
original award will be made.
PATMKNT OF LUMP SUMS
Rule 20. Payment of awards in lump sums will be made only when in a
supplemental proceeding, it is made to appear to the Commission that it
would be to the mutual advantage of the applicant or dependent and to the
Workmen's Compensation Fund.
CONTINUANCES
Rule 21. The policy of the Commission will be to determine all ques^
tions brought before it as speedily as possible; but continuances of hear-
ings for any reasonable cause may be had upon the request of the appli-
cant.
The Commission will continue hearings on its own motion when the
volume of business is such as to demand it, or when the proof is not satis-
factory, or insufficient, or for any other good cause.
MODIFICATION OF AWARDS
Rule 22. The Commission has continuing power and jurisdiction over
an award, and may make changes or modifications of its former findings,
ADMINISTRATION AND PROCEDURE 887
Wisconsin
either upon its own motion or upon the application of the employ^, or his
dependent. If on its own motion, it must first notify the employe1 or his
dependent.
CHANGE IN RULES
Rule 28. The rules of the Commission are subject to alterations or
amendment at any time; and the Commission will make additional rules,
whenever, in its judgment, the same are necessary.
WISCONSIN x
The Wisconsin Act is administered by the Industrial Com-
mission (formerly the Industrial Accident Board). § 2394-
13. All disputes relating tc compensation are determined
by the Commission and every compromise concerning com-
1 Rules of Practice op Industrial Commission of Wisconsin
Rule 1. The rules of practice at hearings before the Industrial Com-
mission will conform generally to the rules of practice before courts of
equity. The aim is to secure the facts in as direct and simple a manner as
possible.
Rule 2. Employers under the provisions of the workmen's compensa-
tion act shall make report to the Industrial Commission on the eighth day
after the accident on form No. 12, of every accident causing death or a
disability which exists' for more than seven days, and thereafter in such
cases shall make a supplementary report on form No. 13 on the twenty-
ninth day after the accident and at the end of each fourth week during
disability. (See forms Nos. 12 and 13.)
Rule 3. In any case where an accident and injury to an employ^ oc-
curs of which the commission has jurisdiction under the Compensation
Act, and a compromise of liability thereunder is made directly by such
employer and employe^ the same shall be made in writing in the presence
of one or more disinterested witnesses who shall sign such compromise, and
copies of all such compromises shall be mailed immediately to the Indus-
trial Commission by the employer. All compromises may be reviewed, set
aside, modified or confirmed by the commission upon application of either
party within one year from the date of the compromise. (Section 2394-
15).
Rule 4- The commission will hold public sessions in the offices of the
commission in Madison on the first and second Tuesday of each month
and continuing from day to day until all matters before the commission
888 bradbury's workmen's compensation law
Wisconsin
pensation is subject to be reviewed, set aside, modified or
confirmed by the Commission upon an application made
within one year from the time of the compromise.
The practice before the Commission follows substantially
are heard. The commission may from time to time hold public sessions in
other places in the state as the convenience of the parties may require.
The office of the cdmmission at Madison shall be open for the transaction
of business during office hours each working day. (Sec. 2394-14.)
Rule 5. Examiners may be appointed by the commission from time to
time, whose duties shall be to aid the commission in making settlements
between employers and employes, and to make report of their actions and
all facts in relation therewith to the commission. (Sec. 2394-14.)
Rule 6. In case of disputes in matters coming under the jurisdiction
of the commission, either party to the dispute may apply to the commis-
sion for relief and the commission shall make such order or award as shall
be lawful and just in the premises.
In all such cases the party complaining shall file his application with the
commission, with copies to be served on the adverse party. The commis-
sion shall thereupon serve such adverse party with a copy of such applica-
tion and such adverse party shall file his answer thereto with the commis-
sion within five days after such service and likewise serve a copy of such
answer on the party making the application. The commission will there-
upon notify the parties of the time and place of hearing, at least ten days
prior to such hearing. (Sec. 2394-16.) '
Ride 7. The parties to the controversy shall be known as the appli-
cant and the respondent. The party filing the application for relief shall
be known as the applicant and the adverse party as the respondent. Either
party may appear in person or by an attorney or agent.
Ride 8. All service of papers, unless otherwise directed by the com-
mission or by law may be made by mail and proof of such mailing shall be
prima facie proof of such service. Time within which service shall be
made shall be the same as in courts of record unless otherwise specified by
rule or order of the commission.
Ride 9. Amendment may be made to any pleading upon application to
the commission and cause shown. The commission may on its own mo-
tion, modify or change its order, finding or award at any time within ten
days from the date thereof if it shall discover any mistake therein.
Rule 10. The commission may grant extensions of time in which to
comply with any rule when it shall deem such extensions of time reasonable
and it may likewise grant adjournments of hearings.
Rule 11. Parties to a controversy may stipulate the facts in writing,
ADMINISTRATION AND PROCEDURE 889
Wisconsin
the practice in courts of equity. § 2394-16. Either party-
may present a certified copy of the award made by the Com-
mission to a Circuit Court for any county whereupon such
court shall, without notice, render a judgment in accordance
therewith. § 2394-18. The findings of fact by the Commis-
sion, in the absence of fraud, are final. But the judgment
may be reviewed in an action against the Commission, in
which the adverse party shall also be made a defendant,
in the Circuit Court for Dane County. § 2394-19, subd. (1).
and the commission may thereupon make its order or award based upon
such stipulation.
Rule 12. Depositions may be taken and used upon any hearing where
the convenience of the witnesses or parties may so require. Such deposi-
tions shall be taken in the same manner as in courts of record.
Rule 13. The Industrial Commission will allow stenographic reporters
for reporting hearings before the commission or any examiner appointed
by the commission, compensation at the rate of $10 per day, and $5 for
each half day or portion thereof, and a folio fee of 5 cents a folio for making
transcripts of testimony; and 3 cents per folio for copies thereof.
Rule 14. The Industrial Commission will pay special examiners the sum
of $10 per day for conducting hearings. In all cases where testimony is
not taken and the parties are merely advised of their rights and a settle-
ment made, the sum of $5 will be paid.
' Rule IS. The Industrial Commission will pay physicians and surgeons
the sum of $10 for making examinations and giving testimony before the
commission or any examiner in a hearing where attendance at the hearing
does not exceed one hour; and at the rate of $2 per hour for additional
time in attendance at hearings. For making a physical examination with
a written report, the fee of $5 will be allowed. No additional allowance of
fees or for expenses will be allowed to any examiner, physician or surgeon,
or reporter, unless special arrangement is made before the service has
been performed.
890 brapbury's workmen's compensation law
Wisconsin
FORM
Application for adjustment of claim
(Form No. 7. Sec. 2394-16)
INDUSTRIAL COMMISSION OF WISCONSIN
State of Wisconsin.
Applicant,
vs.
, Respondents.
The petition of the above-named applicant respectfully shows:
1. State address of applicant,
2. State occupation of applicant,
3. State address of respondent(s),
4. State general nature of claim in controversy, including time
and place of accident,
5. State kind of relief demanded,
6. Wherefore the applicant prays that the said respondent be re-
quired to answer the charges herein and that an order or award be
made by the Industrial Commission of Wisconsin granting such
relief as the applicant may be entitled to in the premises.
Dated at this day of , 19. ..
(Signed)
Applicant.
NOTE — Either party to the dispute may apply to the commission for an adjustment of
the matter in difference.
The original application and one copy for each respondent shall be mailed to the Industrial
Commission of Wisconsint Madison, Wis.
ADMINISTRATION AND PROCEDURE 891
Wisconsin
FORM
Answer to application
(Form No. 9. Sec. 2394-16)
INDUSTRIAL COMMISSION OF WISCONSIN
Applicant,
vs.
Respondent.
The respondent above named for answer to the application herein
respectfully shows:
1. (State all facts in application that are admitted not to be in
dispute.)
2. (State pertinent facts in reply to application, that are in dis-
pute.)
3. (State such additional facts as may constitute a defense or
partial defense.)
4. Wherefore the respondent prays (stating relief asked.)
(Signed)
Respondent.
NOTE — The respondent shall answer the application within five days from the date that
a copy of the application is served upon him. . .
The original answer shall be mailed to the Industrial Commission of Wisconsin at Madison.
Wis., and a copy thereof served upon the applicant by respondent either personally or by mail-
ing to the address given in the application.
Forms adopted by the Commission, excepting accident report forms are printed on Blanks
&yb z 11 inches, and same will be furnished to parties upon request.
CHAPTER XVI
APPEALS
ARTICLE A— Introduction.
Page
. 892
Page
1. In general 892
2. Points raised below only
considered on appeal. . 893
3. Reviewing facts 893
4. Determining adequacy
of lump sum paid under
agreement 894
5. Order terminating
weekly payments not
appealed from is final . 894
6. Dismissal of action and
making decision in ar-
bitration proceedings. 894
7. Award of costs 895
ARTICLE B — Specific Provisions of various Statutes 895
Page
Arizona „ . . 895 Nevada 898
California 895 New Hampshire
Connecticut 895 New Jersey
Illinois 896 New York
Iowa 896 Ohio
898
898
899
Kansas 897 Oregon , 899
Maryland 897 Rhode Island 899
Massachusetts 897 Texas 899
Michigan 897 Washington 900
Minnesota .
Nebraska. .
898 West Virginia 900
898 Wisconsin 900
ARTICLE A— INTRODUCTION
1. In general.
The question of the right to appeal depends almost en-
tirely on statutes under modern procedure. Some general
principles not covered by particular statutes are now and
then decided by the courts. The decisions which follow have
been selected from the British reports as applicable to some
phases of the compensation laws of the American States.
892
APPEALS 893
Reviewing facts
2. Points raised below only considered on appeal.
An appeal by an employer cannot be entertained on points
which were not taken in the court below. Payne and Another
v. Clifton (1910), 3 B. W. C. C. 439.
3. Reviewing facts.
Where the facts are either found or admitted, the only
question to be decided is the inference to be drawn from
those facts, which is a question of law; and it is open to the
Court of Appeal in such a case to review the conclusion at
which the learned County Court judge arrived, and to say
whether it is or is not wrong in point of law, and whether or
not he has misdirected himself. Gane v. Norton Hill Colliery
Co. (1909), 100 L. T. 979; 2 B. W. C. C. 42.
An appeal to the Court of Appeal in England must be
dismissed when it is on purely a question of fact. Rayman
v. Fields, No. 2 (1910), 102 L. T. R. 154; 3 B. W. C. C. 123.
A workman was injured and was paid compensation for
twenty-one weeks. The employers then stopped payment
and disputed liability of any kind, including even the oc-
currence of an accident. Arbitration proceedings were
brought by the workman and terminated in favor of the
employer. Subsequently the workman applied to the County
Court judge to have the implied agreement recorded. The
judge refused on the ground that he had already found, as a
fact, no personal injury had occurred arising out of or in
the course of the workman's employment on the date al-
leged, and that the payments which had already been made
were in the nature of a compassionate allowance, and that
there was no agreement. On appeal to the Court of Appeal
it was held that these were findings of fact, with which the
appellate court could not interfere. Turner v. G. Bell and
Sons (1910), 4 B.W.C.C. 63.
A workman with an injured hand was advised by his own
doctor that he could not recover the use of it, but the em-
ployers' doctor advised that he ought to exercise it, and that
894 bradbury's workmen's compensation law
Dismissal of action and making decision in arbitration proceedings
he would soon recover if he did so. He did not exercise it,
and the employers applied for a review of the weekly pay-
ments on the ground that the incapacity was due not to the
injury but to the unreasonable conduct of the man in not
exercising the hand. The County Court judge held that the
man had not behaved unreasonably and dismissed the appli-
cation to review. It was held on appeal that the question
was one of fact, and there was evidence to support the de-
cision. Moss & Co. v. Akers (1911), 4 B. W. C. C. 294.
4. Determining adequacy of lump sum paid under agree-
ment.
An agreement for the redemption of a weekly payment by
a lump sum was sent to a registrar to record. It appearing
inadequate, the registrar under the powers given him by
Schedule II (9) (d), referred it to the judge. The judge,
holding that the sole question for him to decide was whether
the agreement had in fact been made, declined to decide
the question of adequacy. It was held on appeal that the
case must go back for the question of adequacy to be de-
cided. Owners of the Steamship "Segura" v. Blampied (1911),
4 B. W. C. C. 192.
5. Order terminating weekly payments not appealed from
* ', is final.
An order terminating weekly payments is, unless appealed
from, final, and the original agreement or order is not then
the subject of review. Nicholson v. Piper (1906), 96 L. T.
75; 9 W. C. C. 123, aff'd, House of Lords (1907), A. C. 215;
97 L. T. 119; 9 W. C. C. 128.
6. Dismissal of action and making decision in arbitration
proceedings.
Where in an action under the Employers' Liability Act
the judge dismissed the action and then came to the conclu-
sion that no compensation was payable under the Workmen's
APPEALS 895
Connecticut
Compensation Act, it was held that an appeal could be taken
from his action as a judge and that he did not deal with the
case as an arbitrator under the Employers' Liability Act.
Granick v. British Columbia Sugar Co. (1910), 15 R. C. R.
193;4B.W.C. C.452.
7. Award of costs.
If a judge grants a party costs they must be taxed, and
when an order as to costs is made part of an award, an appeal
lies to the Court of Appeal in respect to such order. Beadle
and Others v. Owners of S. S. "Nicholas" (1909), 101 L. T.
586; 3 B. W. C. C. 102.
ARTICLE B— SPECIFIC PROVISIONS OF VARIOUS STATES
ARIZONA
No appeal is provided in the Act from decisions by ar-
bitrators or the Attorney General. If the parties fail to agree
to arbitrate or submit the matter to the Attorney General,
then the workman may sue in any court of competent juris-
diction and from the judgment entered an appeal may be
taken as in civil actions. § 75.
CALIFORNIA
The decisions of the Commission may be reviewed by
certiorari. § 84. But before applying for a writ of certiorari
the aggrieved party must request a re-hearing before the
Industrial Commission. §§ 81, 82 and 83.
CONNECTICUT
Appeals from awards of the Commissioners may be taken
to the Superior Court for the county in which the injury
was sustained. Part B, § 27.
896 BEADBtJKY's WORKMEN'S COMPENSATION LAW
Iowa
.of.
FORM FOR APPEAL
Claimant
v.
.of..
♦
Respondent
Superior Court,
County
1st Tuesday of 191.
The above-entitled matter came before the Compensation Com-
missioner for the Congressional District and was
duly heard by him.
On the day of , 191. ., said Com-
missioner made his finding and award therein and filed the same
in this Court.
Now, therefore, the undersigned claimant (or respondent),
herein, does hereby appeal from said finding and award to the Su-
perior Court to be held at in and
for the County of on the first Tues-
day of .....191..
Dated at , this day of
191..
Claimant. Respondent.
ILLINOIS
Decisions of arbitrators may be reviewed by the Industrial
Board and determinations of the Board on questions of law
may be reviewed by the Supreme Court. § 19 (6) (J).
IOWA
The decisions of arbitrators may be reviewed by the In-
dustrial Commissioner. § 33. An appeal lies to the District
Court, from the decision of the Commissioner on questions
at law. § 34.
1 Prepared by the Commissioners.
APPEALS 897
Michigan
KANSAS
No right of appeal is given in the Act itself from the de-
cisions of arbitrators. If the parties do not agree to arbitrate
the workman can sue in the ordinary courts. § 36.
MARYLAND
Controversies are determined by arbitration and there is
no appeal from the decisions of the arbitrators. § 13.
MASSACHUSETTS *
Decisions of arbitrators may be reviewed by the Industrial
Accident Board. Part III, § 7. If no review is demanded
in relation to decisions of arbitrators such decisions, like
those of the Industrial Accident Board, are filed and become
the decisions of the Superior Court from which an appeal
lies on questions of law only. Part III, §§ 10 and 11.
MICHIGAN
An appeal lies from the findings of arbitrators to the In-
dustrial Accident Board and decisions of the Board may be
reviewed on questions of law by the Supreme Court. Part
3, §§ 11, 12 and 13.
1 As exceptions do not lie under the Workmen's Compensation Act, and
the only way to bring questions of law to the Supreme Judicial Court is by
an appeal, it follows that the general equity rules as to consideration of
questions of evidence raised at a hearing before the Chancellor should be
followed. Such questions, seasonably presented upon the record will be
considered, but a decree will not be reversed for error in this respect unless
the substantial rights of the parties appear to have been affected. Pigeon
v. Employers' Liability Assurance Corporation, 215 Mass. 000; 102 N. E.
Rep. 932.
57
898 bradbttry's workmen's compensation law
New York
MINNESOTA
Decisions of the courts determining controversies relating
to compensation may be reviewed by the Supreme Court
on auestions of law only. §§ 22 and 30.
•
NEBRASKA
No appeal appears to be provided for from the decision
of arbitrators who may be appointed by agreement only.
§ 37. If arbitration is not agreed upon the matter must be
presented to the District Court from whose judgment an
appeal lies to the Supreme Court. § 39.
NEVADA
There is no provision in the Act allowing an appeal from
the decision of the Nevada Industrial Commission relating
to claims for compensation on the State Insurance Fund.
NEW HAMPSHIRE
Disputes are determined by the courts from whom these
appeals lie as in other civil cases. § 9.
NEW JERSEY
Determinations of the Courts of Common Pleas which
have jurisdiction in compensation cases are reviewed by the
Supreme Court on certiorari. § 2 subd. 20.
NEW YORK
On questions of fact the decisions of the Workmen's
Compensation Commission are final. § 20. On questions
of law appeals are allowed to the Appellate Division of the
Third Department and to the Court of Appeals. § 23.
APPEALS 899
Texas
OHIO
The decisions of the Industrial Commission are final
except where the right of a claimant to compensation from
the State fund is denied on the ground that the injury was
self-inflicted, or that the accident did not arise out of and
in the course of the employment or upon any other ground
going to the basis of the claimant's right in which cases the
claimant may appeal to the Court of Common Pleas of the
county wherein the injury was inflicted. § 1465-90. § 43
of the Act of 1913. From the judgment of the Court of
Common Pleas a review may be had by writ of error as in
other civil cases. Id. There does not appear to be any
right of appeal from the determination by the Board as to a
dispute between an employer who has elected to carry his
own insurance and an employe1 claiming compensation.
OREGON
An appeal lies from the decisions of the Commission by the
Circuit Court of the County in which the accident happened
or in which the appellant resides. § 32.
RHODE ISLAND
An appeal lies from the decision of the Superior Court
on any question of law or equity. Art. Ill, § 7.
TEXAS
There does not appear to be any right of appeal from de-
cisions of the Industrial Accident Board. But either party
may refuse to permit the Board to decide the case, whereupon
the Board shall proceed no further and the matter must be
taken to the regular courts. Part II, § 5.
900 bbadbury's workmen's compensation law
Wisconsin
WASHINGTON
All determinations of the department may be reviewed by
appeal to the Superior Court. § 20.
* WEST VIRGINIA
The decisions of the Commission are final except where
the right of a claimant to participate at all in the State Fund
is denied on the ground that the injury was self-inflicted or
that the injury did not arise in the course of the employment,
or upon any other ground going to the basis of the claimant's
right, in which case an appeal lies to the Supreme Court of
Appeals. § 43.
WISCONSIN
Decisions of the Industrial Commission are subject to
review in the Circuit Court for Dane County, in an action
against the Commission for review. § 2394-19.
CHAPTER XVII
MODIFYING AWARDS OTHERWISE THAN BY
APPEAL
ARTICLE A — Introduction.
Page
1. Circumstances must
have changed to jus-
tify review 902
2. Res adjudicata 903
3. New medical evidence
on review to show
changed circumstan-
CES 904
4. Terms op application
for review binding on
applicant 904
5. Modifying award from a
date earlier than the
date of the applica-
tion to modify 904
6. Terminating compensa-
tion payments 905
7. Question of recovery
from injury is one of
fact 906
8. Increasing age as af-
fecting DISABILITY. . . 907
9. Refusal to submit to
surgical operation. . . 907
10. Reducing payments by
reason of ability to
dolightwork 908
11. Inability to obtain light
work 909
12. Offering suitable em-
ployment 910
13. Reducing payments
Page
. 902
after offer and re-
fusal of light work . . 910
14. Failure of workman to
get or attempt to get
light work 911
15. Disability from disease
following injury. ... 911
16. Workman permanently
injured but suffering
increased disability
from disease 912
17. Rolling-mill hand able
to work with glasses
when vision impaired . 912
18. Disability due to idle-
ness AND SOFTENED
MUSCLES 913
19. Disability due to brood-
ing over injury 913
20. Inability to get employ-
ment due to slackness
OF WORK 914
21. Infant earning as much
after as he did before
accident 914
22. Probable earnings of
infant in different
GRADE 914
23. Profits of business en-
terprise as affecting
right to reduce com-
pensation 915
24. Apportioning loss be-
901
902 bkadbury's workmen's compensation law
Circumstances must have changed to justify review
Page
TWEEN EMPLOYER AND
EMPLOYE 915
25. Allowance fob expenses
when work furnished
away from home 916
26. Diminishing payments;
burden of proof 916
27. Keeping Proceeding
alive by payment of
nominal sum 917
28. Recovering overpay-
ments of compensation 918
29. Permanent partial dis-
ability; ABILITY TO
Page
earn same wages as
before accident 918
30. Increased susceptibility
to occupational dis-
EASE.. 919
31. Inability to earn old
wages in new occupa-
TION 919
32. Inability to do same
work as before injury 920
33. Lack of evidence as to
exact amount work-
man is able to earn. . . 920
ARTICLE B — Specific Provisions of Various Statutes 921
Page
Arizona 921
California 921
Connecticut 921
Illinois . ._ 921
Iowa '. 921
Kansas 921
Maryland 921
Massachusetts 922
Michigan 922
Minnesota 922
Nebraska 922
Nevada 922
New Hampshire 922
New Jersey 923
New York 923
Ohio 923
Oregon 923
Rhode Island 923
Texas 923
Washington 924
West Virginia 924
Wisconsin : 924
ARTICLE A— INTRODUCTION
1. Circumstances must have changed to justify review.
A. few awards in compensation cases are not subject to
modification. This rule would apply to indemnity for a
specific number of weeks for a particular injury like the loss
of a hand, an arm or a leg. But in most cases it is impos-
sible to tell how long disability will continue and so the award
is indefinite as to time. Naturally this makes the right of
review necessary. Naturally also this right depends upon
showing changed circumstances.
MODIFYING AWARDS 903
Res adjudicata
Weekly payments can be reviewed only if the circum-
stances have altered since the last award was made; otherwise
the review would amount to a rehearing of the arbitration,
which is not permissible. Crossfield & Sons v. Tanian, 82
L.T.813;2W.C. C. 141.
2. Res adjudicata.
On an application to review the employer is entitled to
introduce evidence as to the physical condition of the em-
ploye, even though it conflicts with the former finding as
to such physical condition on the date of the finding, as the
determination of the County Court judge, as to the physical
condition of the workman, is not res adjudicata. Mead
v. Lockhart (1909), 2 B. W. C. C. 398.
Where a workman received compensation for a while
and then the amount was reduced and he subsequently
applied for an increase, on the ground that although his
finger which was injured was in the same condition as at
the date of the last review, the fact that he had made several
applications for work which had been refused on account
of his condition, showed that his earning capacity was in
fact reduced as a result of the accident. It was held that the
last review, by which the compensation was reduced, was not
res adjudicata, as against the workman, and that an order
of the County Court judge, increasing the compensation,
should be sustained. Radcliffe v. The Pacific Steam Naviga-
tion Co. (1910), 102 L. T. 206; 3 B. W. C. C. 185. In the
last-mentioned case it was held that certain matters became
res adjudicata on such a review; for example, the fact that
the workman was an employe; that he was injured in the
course of his employment; but that the same doctrine did
not apply to the amount of compensation, because the
statute made this subject to review by subsequent proceed-
ings.
A collier lost the sight of one eye by accident and com-
pensation was paid for two and a half years under an agree-
904 bkadbury's workmen's compensation law
Modifying award from date earlier than that of application to modify
ment. Another agreement reducing the amount of com-
pensation was then entered into in March, 1908. In January,
1909, the employers applied to further reduce the compen-
sation. The workman contended that the amount of his
incapacity had been settled once and for all by the agree-
ment of March, 1908. It was held that the man was fit
for his work as a miner, and the judge reduced the com-
pensation to one penny a week. It was held on appeal that
the evidence before the County Court judge was sufficient
to sustain the decision, and that the workman's contention
that the agreement of March, 1908, was res adjudicate, could
not be sustained. The Cawdor and Garnant Collieries v.
Jones (1909), 3 B. W. C. C. 59.
3. New medical evidence on review to show changed cir-
cumstances.
On review of an award medical evidence on new observa-
tions and tests is admissible to show a change of circum-
stances. Sharman v. Holliday & Greenwood (1903), 90 L. T.
46; 6 W. C. C. 147.
4. Terms of application for review binding on applicant.
On an application by employers to review a weekly pay-
ment the court is bound by the terms of the employer's
application and has no jurisdiction to find that the workman
has recovered from the accident at a time previous to that
suggested in the application. Upper Forest and Western
Steel and Tinplate Co. v. Thomas (1909), 2 B. W. C. C. 414.
5. Modifying award from a date earlier than the date of
the application to modify.
On an application to review a weekly payment the ar-
bitrator may vary the weekly payments from the date of
the application, but not from an earlier date. Donaldson
Brothers v. Cowan (1909), 46 Scotch L. R. 920; 2 B. W. C. C.
390.
MODIFYING AWARDS 905
Terminating compensation payments
On an application to review compensation it is not com-
petent for the County Court judge to go outside of that
application and to make an order terminating liability from
an antecedent date. Charing Cross, Euston and Hampstead
Ry. Co. v. Boots (1909), 101 L. T. 53; 2 B. W. C. C. 385.
6. Terminating compensation payments.
A workman was injured, and liability was admitted, and
compensation agreed upon during incapacity. Subsequently
notice was given by the employer of his intention to ter-
minate the weekly payments, on the ground that the work-
man had recovered, and a joint application was made for
a reference to a medical referee, in accordance with the
statute. The referee certified that the man was fit for work.
The workman then filed an application for arbitration, at
the hearing of which the Comity Court judge, on the medical
evidence, terminated the employer's liability. It was held
that the judge had jurisdiction to make such an order, and
was not bound to make a nominal award of compensation,
containing a declaration of liability. Cranfield v. Ansell
(1910), 4 B. W. C. C. 57.
By an accident a workman lost one finger and received
permanent injury to two other fingers, and was awarded
4s. Id. a week compensation. On an application to review
the weekly payments, the County Court judge, on the
evidence, made an order terminating the employers' lia-
bility. The workman requested that the weekly compensa-
tion be reduced to Id. a week, to keep alive his right to apply
for a further review in the event of future loss, but the Court
of Appeal held that the question decided by the court below
was one of fact with which the Court of Appeal could not
interfere. Emmerson v. Donkin and Co (1910), 4 B. W. C. C.
74.
Where a workman has returned to work and is receiving
the same wages that he did before the accident from his old
employer and the compensation payments have been re-
906 bradbuby's workmen's compensation law
Question of recovery from injury is one of fact
duced to a nominal amount, it was held, on an application
to terminate the payment entirely, that the question is not
whether the man's employers are paying him or should pay
him at the time of the application the same wages as before
the accident, but whether the man is left in such position
that in the open market his earning capacity may in the
future be less than it was before the accident as the result of
the accident. Birmingham Cabinet Manufacturing Co. v.
Dudley (1910), 102 L. T. 619; 3 B. W. C. C. 169.
7. Question of recovery from injury is one of fact.
The question of whether a workman has or has not re-
covered is one of fact, and the arbitrators' finding on this
question will not be reviewed on appeal where there is no
evidence to support it. Cunningham v. M'Naughton &
Sinclair (1910), 47 Scotch L. R. 781; 3 B. W. C. C. 577.
A workman's hand was injured on December 2, 1907;
his employers agreed to pay compensation and a memoran-
dum of this agreement was recorded in May, 1908. After
several operations for blood-poisoning his little finger was
amputated. In January, 1910, an application was made
by the employers to reduce the weekly payments ; the grounds
of the application were that the workman had wholly or
partially recovered from the injury, and was then able to
work and receive wages. The judge dismissed the applica-
tion, holding that there was some incapacity still, and the
Court of Appeal held that on the evidence the decision was
correct. Leeds & Liverpool Canal Co. v. Hesketh (1910),
102 L. T. 663; 3 B. W. C. C. 301.
A workman injured one finger in July, 1909, and compen-
sation was paid under a registered agreement. On November
26, 1909, the workman admitted to the employers' doctor
that he was able to work, but on January 17, 1910, when
the employers applied to terminate the agreement, the tip
of the finger was still slightly tender. The arbitrator termi-
nated the compensation, and refused to make a suspensory
MODIFYING AWARDS 907
Refusal to submit to surgical operation
award. It was held on appeal that the decision was on a
question of fact, and there was evidence to support it; and
that the case was not a proper one for a suspensory award.
Goodall and Clarke v. Kramer (1910), 3 B. W. C. C. 315.
8. Increasing age as affecting disability.
An award of compensation which has been paid some
time should not be reduced on the ground that by reason of
the increased age of the workman he would not be earning
as much as he was getting at the time of the accident even
if he had not been injured. Smith v. Hughes (1905), 8 W.
C. C. 115.
9. Refusal to submit to surgical operation.
Where a workman has submitted to one operation as
advised by the medical referee, which operation was un-
successful, and he was then requested by his employers
to submit to another operation, which he refused to do, it
was held, on an application to review the compensation
award that as no evidence tending to show that the second
operation would be successful was tendered, there was no
power to submit the case to the medical referee for a further
hearing. Carroll v. Gray and Sons (1910), 47 Scotch L. R.
646;3B.W.C.C.572.
A workman, after being for some time in receipt of com-
pensation, refused to undergo an operation. On an appli-
cation to review the doctors were unanimous as to the ad-
visability and as to the strong possibility of the success of
the suggested operation. The workman called two doctors
whose opinions disagreed. It was held that the finding of
the County Court judge that this workman was not un-
reasonable, was a fact which could not be upset on appeal.
Ruabon Coal Co. v. Thomas (1909), 3 B. W. C. C. 32.
Where a workman had injured his finger in such a way
as to make it stiff and crooked, and it was reported by the
medical men that by amputating the finger the workman
90& bradbury's workmen's compensation law
Reducing payments by reason of ability to do light work
would be able to use the hand to better advantage, and the
workman refused to undergo the operation, it was held
that the employer who had been paying compensation could
not merely stop the entire compensation on the ground of
unreasonable refusal of the workman to undergo the opera-
tion, but his remedy was by a proceeding to review. O'Neill
v. Ropner & Com 42 Irish L. T. 3; 2 B. W. C. C. 334.
Where a workman refused to undergo a simple and minor
operation, by which it clearly appears he would be restored
to capacity for work, and that the workman was of good
sound constitution and general health it was held that
the arbitrator was justified in discontinuing compensation.
Donnelly v. William Baird & Co. (1908), 45 Scotch L. R.
394;1B.W.C.C95.
A workman's forearm, which was broken by accident,
was set so negligently that the bones united, but overlapped
at a bad angle, preventing the use of the wrist, for which
reason he was incapacitated. His employers requested him
to have the arm broken again and re-set. This he refused.
The employers thereupon applied for a review on the ground
that the incapacity was no longer due to the injury but to the
workman's unreasonable refusal to have the operation per-
formed, or that it was due to the negligence of the man who
set the bone. The County Court judge found that the
workman's refusal was reasonable, and without deciding
the point as to the negligence of the man who set the bone,
dismissed the application. The Court of Appeal sent the case
back for a re-hearing on the question of whether or not the
incapacity was due to the negligence of the man who set
the bone. Humber Towing Co. v. Barclay (1911), 5 B. W.
C. C. 142.
10. Reducing payments by reason of ability to do light work.
A workman was in receipt of weekly payments under
an award. The employers applied for diminution of the
payments, on the ground that the man was fit to do light
MODIFYING AWARDS 909
Inability to obtain light work
work. There was no evidence that the man could get light
work, and there was evidence that he had made numerous
attempts to do so and had failed. The County Court judge
found that the man was able to do light work and reduced
the payments from 9s. 2d. to 8s. per week. The Court of
Appeal held that there was evidence on which the payments
could be reduced. Cardiff Corporation v. Hall (1911), 104
L. T. 467; 4 B. W. C. C. 159. Compare the last-mentioned
decision with the case of Proctor & Sons v. Robinson (1909),
3 B. W. C. C. 41, where it seems to have been held that
the fact that the workman might be able to do some kind
of light work was not sufficient ground on which to reduce
the compensation.
11. Inability to obtain light work.
Where an agreement has been entered into to pay partial
compensation, it is no ground for review, on behalf of the
workman, to allege that he is totally incapacitated, upon
the contention that his employers are unable to give him
suitable light work and he is unable to obtain light employ-
ment elsewhere. Boag v. Lochwood Collieries (1909), 47
Scotch L. R. 47; 3 B. W. C. C. 549. In the last-mentioned
case the Court said: "As I read the Act of Parliament and
relative schedule the question to be decided in an application
to assess compensation or under an application for review of
weekly payments is the question of the man's physical
capacity to work. Now, in this case it had been decided by
agreement that the workman was partially capable for work.
Is it any reason for reviewing the payment to say that the
employers cannot find him suitable work for his capacity,
or that he has not been able to find such work himself? If
the appellant means that his averments if proved would of
themselves be a sufficient ground for saying that compensa-
tion must be increased to the full allowance under the statute,
I should certainly not for myself yield for. one moment to
any such demand. I take it that the whole question is that
910 bradbury's workmen's compensation law
Reducing payments after offer and refusal of light work
of 'capacity to work,' which cannot be decided merely by
the fact that the workman has not got work, but only by
such evidence as satisfies the Court whether or not he is
able to work."
12. Offering suitable employment.
A miner who had injured one eye so that he had practically
no use thereof, was receiving compensation when his employ-
ers offered him work in the mine at the coal face. This he
refused and it was held that this could not be called "suitable
employment" within the meaning of § 3 of Schedule 1, for
the reason that there was some appreciable increase of peril
to the remaining eye, and that the consequences of injury to
the remaining eye of a one-eyed man would be very serious,
and that therefore the employers were not entitled to have
the compensation discontinued, by reason of having offered
the workman employment which he had refused. Eyre v.
Houghton Main Colliery Co. (1910), 102 L. T. R. 385; 3 B.
W. C. C. 250.
13. Reducing payments after offer and refusal of light work.
An injured workman in receipt of compensation was ex-
amined jointly by his own and the employer's doctors,
who reported that he was fit for light work. His employer
then offered him light work, but he refused, thinking that
the work offered involved some heavy labor. The employer
then applied for a review and the County Court judge,
finding that the man was fit for light work, and that the offer
made it perfectly clear that the man would not have to do
any heavy labor, reduced the payments to Id. a week. It
was held on appeal that there was evidence to support the
decision. McNamara & Co. v. Burtt (1911), 4 B. W. C. C.
151.
A workman having been in receipt of full compensation
for some months, entered into an agreement with his old
employers, to do light work at his former rate of wages, and
MODIFYING AWARDS 911
Disability from disease following injury
that in the event of total incapacity recurring his rights
under the Act should revive. He again became totally in-
capacitated, and claimed compensation, which was paid.
He was subsequently offered light employment at reduced
wages, with half the difference between his former and pres-
ent wages. This offer he refused, claiming that according
to the terms of the agreement he was entitled to full wages.
The employers maintained that the agreement terminated
when the subsequent claim for compensation was made,
and that the workman was relegated to his rights under the
Act. The County Court judge upheld the contention of
the employers and this determination was sustained by the
Court of Appeal. Branford v. North Eastern Railway Co.
(1910), 4 B. W. C. C. 84.
14. Failure of workman to get or attempt to get light work.
On an application by employers to review, it was proved
that the workman was fit for light work, but no evidence
was given that the man had been offered or could get light
work. It was admitted that he had not attempted to get
it. The County Court judge reduced the payments from
15s. to 10s. per week. . It was held that there was no evidence
on which the reduction tould properly be made. Anglo-
Australian Steam Navigation Co. v. Richards (1911), 4 B.
W. C. C. 247.
15. Disability from disease following injury.
A workman was injured and received compensation. He
soon returned to work at full wages and compensation ceased.
Some time later he fell ill and attributing his illness to the
injury, applied for compensation. The employers resisted
on the ground that the workman had fully recovered from
the effects of the accident when he returned to work. The
County Court judge found that the man had recovered from
the injury and that the illness had no connection with it and
912 bradbury's workmen's compensation law
Rolling-mill hand able to work with glasses when vision impaired
the compensation was therefore terminated. London &
North-Westem Railway v. Taylor (1910), 4 B. W. C. C. 11.
16. Workman permanently injured but suffering increased
disability from disease.
A collier, in 1906, had his right hand permanently injured.
He received fulr*compensation at 12s. Id. per week and was
then given light work at which he earned more than his old
wages. In 1910 he left his work as his heart was affected by
disease, which prevented him from continuing this light
work, and registered a memorandum of an agreement to
pay full compensation. His employers at once applied for a
review and reduction of the payments. The County Court
judge found that the man was unfit for work, but that
the heart disease was not connected with the injury to the
hand, and awarded 10s. per week. It was held that as the
workman was still suffering from an obvious permanent in-
jury, due to the accident, he was entitled to compensation,
the amount of which was a question for the judge to deter-
mine. Cory Brothers & Co. v. Hughes (1911), 2 K. B. 738;
4 B. W. C. C. 291.
17. Rolling-mill hand able to work with glasses when vision
impaired.
A workman in a steel rolling mill had the sight of one
eye impaired by an accident. He received compensation for
some time and the employers then applied to review the
payments. Conflicting medical evidence being given as to
the state of the man's vision, the judge referred the matter
to a medical referee, who reported that the man would see
better with glasses, and could do his old work, but did not
make it clear that he could work without glasses. The judge
found that the man was physically able to work, but that,
as a man with glasses was unlikely to obtain employment
in a steel rolling mill, he was not commercially able to earn,
and dismissed the application to review. It was held that
MODIFYING AWARDS 9l3
Disability due to brooding over injury
there was evidence of a change of circumstances, which the
judge ought to have considered, and that the case must
go back to him for a rehearing. Guest, Keen & Nettlefolds v.
Winsper (1911), 4 B. W. C. C. 289.
18. Disability due to idleness and softened muscles.
A collier was injured in 1907 and received compensation
until 1910. His employers then stopped payment. He took
proceedings and the County Court judge found that he was
unfit for the heavy work of a collier, but that his incapacity
was due not to the accident but to his prolonged idleness, his
muscles having become soft and unfit for hard work. He
accordingly awarded in favor of the employers. It was held
on appeal that there was evidence on which the judge could
so find. David v. Windsor Steam Coal Co. (1911), 4 B. W.
C. C. 177.
A workman had the tip of his little finger amputated,
after an accident. The wound healed, leaving slight ad-
hesions. After paying compensation for some time, the
employers applied for a review. It was admitted that three
days before the application to review was heard, another
piece of his finger was, under medical advice, amputated.
The employers contended that the man would have been
fit for work, and that the persistence of the adhesions was
due to his unreasonable refusal to resume work, which would
have soon broken them down. The County Court judge
upheld these contentions and reduced the payments to Id.
per week. It was held that there was no evidence to support
the findings of the County Court judge, and his ruling was
reversed. Burgess & Co. v. Jewell (1911), 4 B. W. C. C. 145.
19. Disability due to brooding over injury.
On an application to review and increase a nominal
award, the two medical referees of the court reported that
the workman, who had been injured by an admitted accident,
was, as regards his physical condition, able to resume his
58
914 beadbury's workmen's compensation law
Probable earnings of infant in different grade
usual occupation as a moulder. As to his mental condition,
they reported that he had brooded so much over his accident
that his mind would not allow him to summon up courage
to persevere at his usual work. It was held that the County
Court judge was right in finding that the man was not suffer-
ing from any incapacity from work which resulted from the
injury, but that his inability to work was caused by brooding
over the effects of the accident, and that this was not in-
capacity within the meaning of the Compensation Act.
Holt v. Yates and Thorn (1909), 3 B. W. C. C. 75.
20. Inability to get employment due to slackness of work.
An injured workman in receipt of part wages and reduced
compensation is not entitled to a restoration to full half
wages because of his inability to get employment because
of the slackness of work. Dobby v. Wilson Pease & Co.
(1909), 2 B. W. C. C. 370.
21. Infant earning as much after as he did before accident.
An infant workman was injured and sustained a rupture.
After a few weeks he returned to his former work wearing a
truss. A year later his employers applied to terminate their
liability and proved that he was earning as much as before
the accident. It was held that the fact that an infant work-
man is earning the same wages as before the accident is not
necessarily conclusive that the employers are entitled to have
the compensation terminated, but the arbitrator should de-
termine whether the earning capacity was the same as it
would have been had he not been injured. Bowhill Coal Co.
v. Malcolm (1910), 47 Scotch L. R. 449; 3 B. W. C. C. 562.
22. Probable earnings of infant in different grade.
An infant skilled laborer, during a slack time, took em-
ployment of an unskilled kind, paid at a lower rate. He
was injured while in the latter employment and received
compensation based on the wages he was receiving when
MODIFYING AWAKDS 915
Apportioning loss between employer and employe1
injured. On an application to review he claimed to be
entitled to compensation, based on the weekly sum he would
probably have been earning at his skilled work. It was
held that in estimating the probable earnings of this work-
man under Schedule I (16), regard may be had to his power
of earning money in another employment and in another
class of employment than that in which he had been working
at the time he was injured. Evans v. Vickers, Sons and
Maxim (1910), 102 L. T. 199, 3 B. W. C. C. 126, aff'd by
House of Lords, Vickers Sons and Maxim v. Evans (1910),
3 B. W. C. C. 403. In the decision of the House of Lords
it was held that the "weekly sum which the workman would
probably have been earning" is not limited to what the
workman would probably have earned in the same employ-
ment under the same employer.
23. Profits of business enterprise as affecting right to re-
duce compensation.
On an application to review the court can consider as
"wages" the profits of a bakery business in which the work-
man has engaged. Norman & Burt v. W r alder (1904), 90
L.T.531;6W.C.C. 124.
An injured workman, before the accident, earned an
average of £94 per year. After the accident he purchased
a public house for £100 and deducting interest on capital
and all expenses he still made a net profit of £98. On an
application to review the employers contended that although
the workman had not recovered from his injuries the in-
capacity to earn had ceased, as he was earning more since
the accident than before. It was held on appeal, reversing
the decision below, that the test was not the man's profits,
but the value of the work done had it been offered as services
in the open market. Paterson y. A. G. Moore & Co. (1910),
47 Scotch L. R. 30; 3 B. W. C. C. 541.
24. Apportioning loss between employer and employe.
Where a man earns something but not enough when
916 bradbury's workmen's compensation law
Diminishing payments; burden of proof
added to the compensation payable to equal what he was
earning before the injury, an arbitrator is not bound to
reduce the payments so that the actual loss to the workman
shall be borne equally by him and his employer. Ellis v.
Knott (1900), 2 W. C. C. 116.
25. Allowance .for expenses when work furnished away
from home.
Employers who were paying a workman 17s. bd. a week
compensation gave him light work at a different place some
miles from home, and then filed an application to review
the compensation. The County Court judge reduced the
payments, but allowed the man the cost of a week-end ticket
and also lodging allowance, as he was compelled to live apart
from his family during the week. The family then moved
to the place where he was working and on a new application
by the employers the judge still further reduced the compen-
sation. On appeal it was held that the decision of the court
was on a question of fact and the Court of Appeal would not
interfere. The Taff Vale Railway Co. v. Lane (1910), 3
B. W. C. C. 297.
26. Diminishing payments; burden of proof.
"Once liability is admitted and payment of an amount
for compensation is made, such amount should be the
employer's liability until he (the employer) discharges the
onus of showing a change of circumstances which entitles
him to have the amount diminished. " Maundrell v. Dunker-
ion Collieries Co. (1910), 4 B. W. C. C. 76, 78.
On an application to diminish a weekly payment, it was
found that the workman could do some light work, if he
could obtain it; but the employer did not produce any evi-
dence that he could obtain such light work, and the judge
refused to reduce the weekly payments. It was held on
appeal that the employers had not discharged the onus of
proof which was upon them to show that the man could ob-
MODIFYING AWARDS 917
Keeping proceeding alive by payment of nominal sum
tain such work. Proctor and Sons v. Robinson (1909), 3
B. W. C. C. 41. In the last-mentioned case the court said:
"I think the employers here struck too soon. Either they
should first obtain some work which the workman could do
and offer it to him, and give evidence of this, or else they
should give evidence that there is some chance of the work-
man obtaining a particular kind of light work in the district.
Here the employers failed to prove the case they put for-
ward. The burden was upon them and they failed to dis-
charge it."
Where an employer who has been paying compensation
contends that the incapacity from the injury has ceased,
and that the workman is suffering from a cardiac affection
unconnected with the injury, the onus is on the employer
of proving this contention on a proceeding to reduce or dis-
continue the compensation. Quinn v. M'Callum (1908),
46 Scotch L. R. 141; 2 B. W. C. C. 339.
The employers applied to review payments under a
registered agreement, putting in a certificate of a medical
referee, obtained in accordance with Schedule I (15), as
proof that the workman was fit to work. The man tendered
medical evidence in contradiction, but the County Court
judge rejected it on the ground that the certificate was con-
clusive. It was held that the evidence was rightly rejected,
the certificate being conclusive. Sapcote & Sons v. Hancock
(1911), 4 B. W. C. C. 184.
27. Keeping proceeding alive by payment of nominal sum.
On an application to review a weekly payment the County
Court judge has jurisdiction to make a suspensory award of,
say, Id. per week, or a declaration of liability, it matters
not which, for the purpose of keeping alive the workman's
claim for compensation, and his right to go back to the judge
in the event of new circumstances arising rendering such a
course appropriate. Ovmers of Vessel "Tynron" v. Morgan
(1909), 100 L. T. 461; 2 B. W. C. C. 406.
918 Bradbury's workmen's compensation law
Permanent partial disability; ability to earn same wages as before
28. Recovering overpayments of compensation.
On an application to review an order for compensation,
it was held that the weekly payments should be reduced as
of a certain antecedent date. The employer refused to make
any further payments until the amount of overpayments
had been worked off. It was held that the employer had no
right to recover overpayments in this way, as his remedy
was by action. B. Hosegood and Sons v. Wilson (1910), 4
B. W. C. C. 30.
Where an employer, by mistake, has paid more than half
wages, he is entitled to have the excess payments set off as
to future compensation. Mutter v. The Batavia Line (1909),
2 B. W. C. C. 495.
29. Permanent partial disability; ability to earn same
wages as before accident.
A ship's fireman sustained an injury which necessitated
the amputation of the third finger. Compensation was
paid under an agreement. The finger having healed so he
could use his hand to a certain extent, the compensation
was reduced to 5s. a week, the judge finding that the man
was permanently partially incapacitated. Later the em-
ployers offered the man work as a fireman at his full former
wages. This he accepted and worked for seven months.
The employers thereupon applied to terminate the payments
on the ground that he had completely recovered his wage
earning capacity. The application was refused by the
County Court Judge and the decision was affirmed by the
Court of Appeal, it being held that the man was entitled
to compensation because of the permanent incapacity. War-
wick Steamship Co. v. Callaghan (1912), 5 B. W. C. C.
283.
A workman lost the sight of one eye by accident. After
recovery he was offered his old work which he refused, as he
did not wish to run the risk of losing his other eye. On
application by the employers the County Court judge
MODIFYING AWARDS 919
Inability to earn old wages in new occupation
terminated the compensation. This decision was affirmed
on appeal, but the Appellate Court held that the workman
was entitled to a declaration of liability. Braithwaite &
Kirk v. Cox (1911), 5 B. W. C. C. 77.
A coal miner, after receiving compensation for some time
returned to full work. Subsequently he declared that he
was suffering from flat-foot which he alleged was due to the
accident. The employers applied for a termination of the
weekly payments and gave evidence showing that the work-
man was able to do full work. The workman contended
that flat-foot was a disability. The County Court judge
terminated the payments without giving any grounds for
his decision. On appeal to the Court of Appeals the decision
was affirmed on the ground that there was evidence to sup-
port the decision of the County Court judge that disability
had ceased. Jones v. Tirdonkin Colliery Co. (1911), 5 B. W.
C. C. 3.
30. Increased susceptibility to occupational disease.
A collier suffered from an occupational disease and re-
ceived compensation. On an application by the employers
to terminate the weekly payment it was found that the collier
was not now suffering from the disease, but that he had an
increased susceptibility to it, due to the previous attack,
which affected his capacity to work underground and the
application for a review was dismissed. Garnant Anthracite
Collieries v. Bees (1912), 5 B. W. C. C. 694.
31. Inability to earn old wages in new occupation.
As a result of an accident a riveter had one eye blinded.
He received compensation until the wound had healed and
on application by the employers to terminate the payments,
a declaration of liability was awarded and payments were
stopped. He was entirely able to do his old work, which was
offered to hi™ by his employers, but he refused, as he was
920 bhadbuky's workmen's compensation law
Lack of evidence as to exact amount workman is able to earn
afraid of injuring the remaining eye. Painting work was then
given to him, but he was unable to earn his full wages at
this and he applied for an increase of compensation. The
application was denied on the ground that there was no
change in his circumstances since the first review. Cox v.
Braithwaite & Kirk (1912), 5 B. W. C. C. 648.
32. Inability to do same work as before injury.
A coal miner had his compensation reduced to a nominal
sum. He asked his employers for light work and they offered
him only his old work. He attempted this, but entirely
failed to do it, as it made him ill and he was confined in the
hospital for six months. It was held that on the application
of the workman he was entitled to have a review on the
ground that there was a change in his circumstances. Wal-
ton v. South Kirby, Featherstone v. Hemsworth Colliery (1912),
5 B. W. C. C. 640.
33. Lack of evidence as to exact amount workman is able
to earn.
Payments may be diminished on proof that the total
incapacity has ceased without evidence of the actual amount
of the earning capacity of the workman. Carlin v. Alexander
Stephen & Sons (1911), 48 Sc. L. R. 862; 5 B. W. C. C. 486.
A workman who was injured was able to do light work
which was offered to him by his employers. He refused to
accept the work and upon an application to reduce the com-
pensation no evidence was given as to the exact amount of
wages the workman was able to earn at the light work.
The County Court judge, acting partly upon his own local
knowledge, diminished the payments, and upon appeal it
was held that it was in the discretion of the judge to diminish
any weekly payment without evidence as to the actual
amount the workman was able to earn. Roberts & Ruthven
v. Hall (1912), 5 B. W. C. C. 331,
MODIFYING AWARDS 921
Maryland
ARTICLE B— SPECIFIC PROVISIONS OF VARIOUS STATUTES
ARIZONA
There is no provision in the Arizona Act allowing a modi-
fication of award or judgment for compensation.
CALIFORNIA
The California Act contains elaborate provisions for a
re-hearing and review of awards. §§ 81, 82, 83 and 84.
CONNECTICUT
Awards may be modified at any time where there has
been a change of condition. Part B, § 15.
ILLINOIS
Agreements and awards may be modified at any time
within eighteen months after they are made. § 19.
IOWA
Agreements or awards may be modified at any time.
Part 2, § 35 (a).
KANSAS
Agreements and awards may be modified or cancelled at
any time within one year after they are filed. § 29.
MARYLAND
There is no special provision in the Maryland law as to
the modification of the award. There is merely a provision
that all controversies shall be settled by arbitration. § 13.
922 BRADBURY'S WORKMEN'S COMPENSATION LAW
New Hampshire
MASSACHUSETTS
Any weekly payment may be reviewed for cause. Part
III, §12.
MICHIGAN
Any weekly payment may be reviewed where it appears
that conditions have changed, warranting such action.
Part 3, § 14.
MINNESOTA
Settlements and awards as to compensation providing for
payments not exceeding six months are final, and not subject
to readjustment. Part 2, § 26. If the payments are for
more than six months the award or agreement may be re-
viewed and modified. Part 2, § 27.
NEBRASKA
All settlements and awards for payments for a period
under six months are final, but if periodical payments are
for a period of more than six months then they are subject
to review upon showing changed conditions. §§ 41 and 42.
NEVADA
Awards may be modified at any time. § 34 (c).
NEW HAMPSHIRE
There is no provision in the New Hampshire Act on this
subject except in the latter part of § 9, wherein it is provided
that "either such employer or workman may apply to "said
Superior Court or to any justice thereof in similar proceedings
for the determination of any other question that may arise
under the compensation feature of this Act."
MODIFYING AWARDS 923
Texas
NEW JERSEY
An agreement or award of compensation may be modified
at any time after one year from the time the same became
operative. § 2, subd. 21.
NEW YORK
Awards may be modified at any time because of changed
conditions. § 22.
OHIO
Awards may be modified at any time when in the opinion
of the Industrial Commission such modification is justified.
§ 1465-86. § 39 of the Act of 1913.
OREGON
An award may be modified at any time where there is a
change in conditions. § 21 (1). No increase or re-arrange-
ment shall be operative for any period prior to the applica-
tion therefor. § 27 (c).
RHODE ISLAND
At any time within two years from the date of the ap-
proval of an agreement or the entry of a decree fixing com-
pensation and prior to the period for which compensation
has been fixed by such agreement or decree, the same may be
reviewed upon application of either party. Art. Ill, § 14.
TEXAS
The Texas Act does not contain any provision on this
subject.
924 Bradbury's workmen's compensation law
Wisconsin
WASHINGTON
Awards may be modified at any time where there is a
change in conditions. § 5 (h).
WEST VIRGINIA
Awards may be modified at any time where there is a
change in conditions. § 40.
WISCONSIN
There is no general provision in the Wisconsin law al-
lowing an award or judgment for compensation to be re-
viewed or changed because of changed conditions.
CHAPTER XVIII
PHYSICAL EXAMINATION OF CLAIMANTS FOR
COMPENSATION
Page
ARTICLE A— Introduction 925
Page
1. Demand that workman's
attorney be present at
medical examination. . 925
2. Unreasonable demand
that workman's med-
ical attendant be pres-
ent at examination 926
3. Cause OP DEATH SUBMITTED
TO MEDICAL REFEREE 926
4. Refusal of workman to
undergo surgical
operation 927
5. Medical referee's re-
port NOT CONCLUSIVE ON
ARBITRATOR 928
ARTICLE B — Specific Provisions of Various Statutes.
928
Page
Arizona 928
California 928
Connecticut 929
Illinois 929
Iowa 929
Kansas 929
Maryland 929
Massachusetts 930
Michigan 930
Minnesota 930
Nebraska 931
Nevada 931
New Hampshire 931
New Jersey 931
New York 931
Ohio 932
Oregon 932
Rhode Island 932
Texas 932
Washington 932
West Virginia 933
Wisconsin 933
ARTICLE A— INTRODUCTION
1. Demand that workman's attorney be present at med-
ical examination.
A workman in receipt of compensation under the Act
was required by his employers to submit himself for examina-
tion by a certain duly qualified medical practitioner. The
925
926 bradbury's workmen's compensation law
Cause of death submitted to medical referee
workman refused to do so unless the examination was at his
solicitors' office or in his solicitors' presence. The employ-
ers repeated their request, but stated that the workman's
medical adviser might attend at the examination. The
workman again refused unless his conditions were complied
with. It was held on these facts that there was a refusal to
submit to a medical examination. The Court said: "It
cannot be too well known that a solicitor's office is not, in
ordinary circumstances, a proper place at which to hold a
medical examination of a workman." Warby v. Plaistowe &
Co. (1910), 4 B. W. C. C. 67.
2. Unreasonable demand that workman's medical attend-
ant be present at examination.
A workman having claimed compensation under the Act
of 1906, his employers required him to submit himself for
medical examination. The workman refused except on con-
dition that his own medical attendant should be present
throughout the examination. He conceded that there were
no special circumstances in his case which called for the
presence of his medical attendant. It was held that the
workman's refusal to submit to examination unless his own
medical attendant was present was a "refusal within the
Act." Morgan v. William Dixon (1910), 48 Scotch L. R. 296;
4 B. W. C. C. 363. A workman who refuses to be examined
by the employer's physician unless the workman's own
medical adviser is present, does not refuse to submit himself
to such examination or obstruct the same, within the mean-
ing of the Act. Devitt and Crosby Magee v. The Owners of
the S. S. " Bainbridge" (1909), 2 K. B. 802; 2 B. W. C. C. 383.
3. Cause of death submitted to medical referee.
A workman was injured and afterward died in the hospital.
His dependent claimed compensation, and on the hearing
conflicting medical evidence was given as to the cause of
death. The County Court judge thereupon submitted the
PHYSICAL EXAMINATION OF CLAIMANTS 927
Refusal of workman to undergo surgical operation
matter to a medical referee, in accordance with Schedule II
(15) of the Act, which provides that the judge may submit
to a referee any matter which seems material, "subject to
regulations made by the Secretary of State and the Treas-
ury." These regulations (dated June 24, 1907), in fact, deal
only with the case of a living workman. It was held that
the judge had, nevertheless, jurisdiction to submit for report
the question of the cause of death." Carolan v. Harrington
& Sons (1911), 2 K. B. 733; 4 B. W. C. C. 253.
4. Refusal of workman to undergo surgical operation.
An employer is not entitled to have compensation termi-
nated because of the refusal of the workman to undergo an
operation unless he can show clearly that the refusal of the
workman was unreasonable. Proprietors of Hays Wharf v.
Brown (1909), 3 B. W. C. C. 84. The onus rests upon the
employer to show that a workman unreasonably refused to
submit to an operation whereby it is alleged that the opera-
tion would have cured the disability. Marshall v. Orient
Steam Navigation Co. (1910), 1 K. B. 79; 3 B. W. C. C. 15.
So held where a ship's fireman whose finger was injured re-
fused to have an incision made as advised by the ship's
doctor, who declared that such an incision would have saved
the finger, and the workman's doctor declared to the con-
trary. Id. The refusal by a workman to undergo a surgical
operation must be reasonable or he will not be entitled to a
continuance of the compensation awarded. Paddington
Borough Council v. Stack (1909), 2 B. W. C. C. 402. Where a
workman refuses to submit to a surgical operation of a simple
character, involving no serious risk to life and health, and
which, according to the unanimous professional evidence,
offers a reasonable prospect of the removal of the incapacity
from which he suffers, is debarred from any right to claim
further compensation. Such continuance of his disability is
not attributable to the original accident, but to his unreason-
able refusal to avail himself of surgical treatment. Wamcken
92S beadbury's workmen's compensation law
California
v. Richard Moreland & Son (1908), 100 L, T. 12; 2 B. W. C.
C. 350. A workman injured by accident arising out of and
in the course of his employment, who refuses, on the advice
of his own doctor,, to submit to a surgical operation, which,
in the opinion of such medical man, involved some risk to
his life, is not acting unreasonably in such refusal, and is
not thereby precluded from claiming compensation because
of his continued disability to work. Tutton v. Owners of
Steamship "Majestic" (1909), 100 L. T. 644; 2 B. W. C. C.
346.
6. Medical referee's report not conclusive on arbitrator.
Where the County Court judge submits to a medical
referee for report any matter which seems material to any
question arising in the arbitration the judge is not bound
by the referee's report, but should exercise an independent
judgment. Quinn v. Flynn (1910), 44 Irish L. T. R. 183;
3 B. W. C. C. 594.
ARTICLE B— SPECIFIC PROVISIONS OF VARIOUS STATUTES
ARIZONA
The employe" must submit to an examination when de-
manded by the employer and the right to compensation is
suspended during any time which the workman wrongfully
refuses to submit to such examination. § 73.
CALIFORNIA l
The employer has a right to have the workman examined
by a physician and compensation is suspended during the
1 The refusal of an injured employ! to submit to a physical examination
after order by the Board, bars his right to compensation during the period
of such refusal. This penalty should be strictly enforced. What con-
stitutes a refusal is afact to be determined by the Board. Mack v. Pacific
Telephone & Telegraph Co., Cal. Indus. Ace. Bd., Oct. 7, 1912.
PHYSICAL EXAMINATION OF CLAIMANTS 929
Maryland
periods of any improper refusal on the part of the workman to
submit to such examination. § 21.
CONNECTICUT
The workman must submit to an examination upon the
request of the employer or the direction of a Commissioner
and the refusal to submit to such examination suspends the
right to compensation during such refusal. Part B. § 23.
ILLINOIS
The workman must submit to an examination upon the
request of the employer, and during the time of any refusal
compensation is suspended. § 12. .
IOWA
The workman must submit to an examination when re-
quested by the employer and compensation is suspended
during the period of any improper refusal to submit to such
examination. § 12.
KANSAS
The employe1 must submit to an examination when re-
quested by the employer, and compensation is suspended
during refusal. The Court may also appoint a physician
where any proceeding is pending for compensation. §§ 17
to 21 inclusive.
MARYLAND
The contract of insurance may provide that the employ^
shall submit himself to medical examination as required by
the employer at the employer's expense. § 7.
59
930 Bradbury's workmen's compensation law
Minnesota
MASSACHUSETTS
The workman must submit to an examination at the re-
quest of the employer or the insurance carrier and should
he refuse, compensation is suspended. Part II, § 19.
FORM
Notice to industrial accident board that an injured employe has
refused to submit himself to an examination
You are hereby notified that
(Name of employe.)
(Street and No.) (City or Town.)
who was injured on or about while in the employ of . . . .
(Date.)
at
(Name of employer.) (Place.)
has refused to submit himself to an examination, as required under
the provisions of Section 19, Part II, chapter 751 of the Acts of
1911, and amendments thereto.
(Name of insurance association or company.)
Per
191.
(City.)
MICHIGAN
The workman must submit to an examination at the re-
quest of the employer or by a physician appointed by the
Board, and should he refuse to submit to the examination,
compensation is suspended during such refusal. Part II, § 19,
Part III, §9.
MINNESOTA
The workman must submit to an examination at the re-
quest of the employer and compensation is suspended during
the time of any refusal to submit to such examination. § 21.
PHYSICAL EXAMINATION OF CLAIMANTS 931
New York
NEBRASKA
The workman must submit to an examination at the
request of the employer and compensation is suspended
during the time of any refusal to submit to such examina-
tion. Part II, § 34.
NEVADA
The workman must submit to examination when requested
by the Commission, and the right to compensation is sus-
pended during his refusal. § 32.
NEW HAMPSHIRE
The workman must submit to an examination at intervals
not oftener than once in a week, and compensation is sus-
pended during his refusal. § 7.
NEW JERSEY
The workman must submit to an examination as often
as may be reasonably requested. The right to compensation
is suspended during refusal to submit to such examination.
§ 2, subd. 17.
NEW YORK
A workman "if requested by the Commission" must
submit to a medical examination. The employe or the in-
surance carrier may have a physician of his' or its own selec-
tion participate in such examination. The right to com-
pensation or to prosecute proceedings therefor is suspended
during the time of the refusal to submit to the examination.-
§ 19.
932 bradbuby's workmen's compensation law
Washington
OHIO
A workman claiming compensation may be required to
submit to a physical examination from time to time as may
be provided by the rules of the Commission. The right to
compensation is ♦suspended during the time of any refusal
to submit to such examination. §§ 1465-95, § 48 of the
Act of 1913.
OREGON
The workman must submit to a physical examination
when requested by the Commission and should he refuse,
compensation is suspended during the refusal. § 28.
RHODE ISLAND
The workman must submit to a physical examination when
requested by the employer and the right to compensation is
suspended during his refusal. Art. 2, § 21.
TEXAS
The Industrial Accident Board may require any workman
claiming compensation to submit to an examination before
said Board or someone acting under its authority. Refusal
to submit to such examination suspends the right to com-
pensation during the refusal. Part II, § 4.
WASHINGTON
A workman must submit to a physical examination if
requested by the Department and compensation is suspended
during any refusal to submit to such examination. § 13.
PHYSICAL EXAMINATION OF CLAIMANTS 933
Wisconsin
WEST VIRGINIA
There is no special provision in the West Virginia Act
providing for physical examinations other than the broad
powers of the Commission to make investigations and re-
quire employe's as well as employers to answer all necessary
questions.
WISCONSIN »
The workman must submit to an examination whenever
required and during the period of any refusal compensation
is suspended. § 2394-12.
1 The applicant was injured by a cave-in while employed as a plumber's
helper. He was totally disabled for five weeks. At the end of that time
the employer' served written notice upon him to submit to a medical
examination. The workman failed to comply with this request. At the
time of the hearing the workman had fully recovered from his injury. It
was held that compensation amounting to $46.85 for five weeks should be
awarded. Christian Lick v. L. R. StoUberg Co., Wis. Indus. Com., Jan. 23,
1913.
CHAPTER XIX
REPORTS BY EMPLOYERS OF INJURIES TO
WORKMEN
Page
ARTICLE A — Specific Pbovisions of Various Statutes 934
Page
Arizona 934 Nevada 937
California 934 New Hampshire 937
Connecticut 934 New Jersey 937
Illinois 935 New York 937
Iowa 935 Ohio 938
Kansas 935 Oregon 938
Maryland 935 Rhode Island 938
Massachusetts 935 Texas 938
Michigan 936 Washington 938
Minnesota 936 West Virginia 938
Nebraska 937 Wisconsin 939
ARTICLE A— SPECIFIC PROVISIONS OF VARIOUS STATUTES
ARIZONA
There is no special provision in the Arizona Act requiring
employers to report accidents.
CALIFORNIA
Employers and insurance carriers are required to make
reports to the Industrial Commission of accidents to em-
ployes under rules of and on blanks furnished by the Com-
mission. §§ 57 (5), and 71.
CONNECTICUT
Employers must report each week injuries which have
occurred in the preceding week. Part B, § 20.
934
KEPORTS BY EMPLOYERS OP INJURIES 935
Massachusetts
ILLINOIS
Immediate reports of accidents must be made to the In^
dustrial Board where the injury entails a loss of more than
one week's time. Also in death cases. § 30.
IOWA
Reports of accidents must be made within forty-eight
hours to the Industrial Commissioner on blanks to be pro-
cured from the Commissioner for that purpose. § 37.
KANSAS
Employers are required to report annually to the State
Commissioner and Factory Inspector all accidents, including
information as to all payments under the Compensation
Act. § 16.
MARYLAND
A quarterly report of all settlements and payments must
be made by the employer to the Insurance Commissioner.
§17.
MASSACHUSETTS1
Employers must within forty-eight hours, not counting
Sundays and legal holidays, after the occurrence of an acci-
dent, report the same to the Industrial Accident Board,
on blanks to be procured from the Board for that purpose.
Upon termination of the disability, or if such disability
extends beyond a period of sixty days, at the end of that
"The Massachusetts Industrial Accident Board rules that all em-
ployers must report accidents to the Board whether or not they are in-
sured under the Act. See Bulletin No. 2, Mass. Indus. Ace. Bd., Jan.
1913, p. 11,
936 bradbury's workmen's compensation law
Minnesota
period, the employer must make a further report. Part
III, §18.
"That the association and liability insurance companies
report to it all accidents within five days after receipt of
notice thereof by them from any subscriber, by sending to
the Industrial Accident Board a copy of said notice. ' ' Rule
No. 3, Mass. Indus. Ace. Bd.
MICHIGAN
i
Reports must be made within ten days after the accident
to the Industrial Accident Board on blanks to be procured
from the Board for that purpose. Part 3, § 17.
MINNESOTA
Reports of all accidents which disable employe's for one
week must be made to the Department of Labor and Indus-
tries at St. Paul, on blanks to be furnished by the Commis-
sioner of Labor. Fatal and serious accidents must be reported
within forty-eight hours and all other accidents within four-
teen days. L. 1913, c. 416. Copies of all settlements made
or releases obtained in respect of industrial accidents shall
also be filed with the Labor Commissioner. The failure
to make any of such reports is a misdemeanor. L. 1913,
c. 416, §§ 2 and 3.
'The Michigan Industrial Accident Board has made the following
rule in relation to the reporting of accidents:
"All accidents resulting in disability continuing for more than one full
working day shall be reported to the Board; all accidents involving per-
manent partial disability, i. e., dismemberment, etc., shall be reported
irrespective of term of disability. Such report is to be filed weekly on
Form 5A, upon which the name of an injured employe is to be carried
until disability ceases or compensation period terminates. If disability
exceeds fourteen days a detailed report is to be filed upon the fifteenth day
upon Form No. 6. Provided: that in all cases where death or the loss of a
member results Form No. 6 is to be filed not later than ten days following
the injury.
REPORTS BY EMPLOYERS OP INJURIES 937
New York
NEBRASKA
Reports of injuries and of settlements must be made to the
Labor Commissioner. Part 2, § 45.
NEVADA
The employer must immediately report all accidents to
the Commission on blanks furnished by the Commission.
§33.
NEW HAMPSHIRE
Reports must be made to the Commissioner of Labor on
blanks furnished by him of such matters relating to injuries
and settlements as the Commissioner may require. § 12.
NEW JERSEY
Reports must be made to the Commissioner of Labor of
all accidents which result in disability of two weeks or more
on blanks furnished by the Commissioner. Additional re-
ports must be made by insurance companies of all accidents
reported to them. These reports must be filed within four
weeks after the injuries have been reported to the company.
L. 1912, c. 156.
NEW YORK
Every employer must keep a record of injuries, fatal or
otherwise, to his employes. Within ten days after the oc-
currence of an accident he must report the same to the Com-
mission. Failure to do this is punishable by a fine of not
more than $500 and the employer is guilty of a misdemeanor.
§111.
938 bradbury's workmen's compensation law
West Virginia
OHIO
Reports of all accidents, fatal or otherwise, must be made
by employers to the Industrial Commission within a week
after they happen, on blanks furnished by the Commission.
Failure to make such reports is a misdemeanor subjecting
the employer to a fine of not more than $500. § 1465-99;
§ 52 of the Act of 1913.
OREGON
Employers must at once report all accidents to the Com-
mission on blanks furnished by the Commission. § 29.
RHODE ISLAND
There is no provision in the Act on' this subject.
TEXAS
Within eight days after the occurrence of an accident a
report thereof must be made to the Industrial Accident
Board on blanks to be procured from the Board for that
purpose. A further report must be made at the end of dis-
ability, or at the end of sixty days, if disability has not then
terminated. Part II, § 7.
WASHINGTON
Reports must be made to the Department at once of any
accidents to an employe, on blanks and under regulations
of the Industrial Insurance Department. § 14.
WEST VIRGINIA
There is no special provision in the West Virginia Act
requiring employers to report accidents, but the Public
Reports by employers of injuries 939
Wisconsin
Service Commission has power to make orders and regula-
tions concerning the administration of the Act and undoubt-
edly has power to require such reports.
WISCONSIN
There is no special provision of the Wisconsin Act re-
quiring reports, but § 2394-14 authorizes the Industrial
Commission to make rules and under that power the Com-
mission has made the following rule:
"Rule II. Employers under the provisions of the work-
men's compensation act shall make report to the Industrial
Commission on the eighth day after the accident on Form
No. 12, of every accident causing death or a disability which
exists for more than seven days, and thereafter in such cases
shall make a supplementary report on Form No. 13 on the
twenty-ninth day after the accident and at the end of each
fourth week during disability. (See Forms Nos. 12 and 13)."
Blanks for these reports are furnished by the Commission
and must be used.
CHAPTER XX
COMPROMISING COMPENSATION CLAIMS
Page
ARTICLE A— Introduction -940
Page
1. In general 940
ARTICLE B— Specific Provisions of Various Statutes 945
Page
Arizona 945 Nevada 947
California 945 New Hampshire 948
Connecticut 946 New Jersey 948
Illinois 946 New York 949
Iowa 946 Ohio 949
Kansas 946 Oregon 949
Maryland 946 Rhode Island 950
Massachusetts 947 Texas 950
Michigan 947 Washington 950
Minnesota 947 West Virginia 950
Nebraska 947 Wisconsin 950
ARTICLE A— INTRODUCTION
1. In general.
The word "compromise" so far as it implies a concession
has practically no application to workmen's compensation
Acts. The amount of compensation due is subject to com-
putation when the facts are properly established, in most
cases, and very little is left for dispute or negotiation. Com-
promise settlements, therefore, are scarcely recognized at
all under such statutes. Some of the acts, however, permit
the parties to agree as to the amount due, but most of them
provide in one form or another that a settlement must either
be approved by some public officer in the first instance or
that it is subject to re-examination thereafter before it
become conclusive. In New Jersey, for example, while the
940
COMPROMISING COMPENSATION CLAIMS 941
In general
parties may agree as to the amount due, if the employe or the
beneficiary subsequently brings proceedings in court the
settlement is binding only so far as it is in compliance with
the Statute. This chapter points out specifically in what
instances settlements may be made by the parties and the
effect of such settlements.
The British Act "authorizes employers and injured work-
men (or the dependents of workmen who have been killed)
to enter into agreements as to the compensation to be paid.
In order that such agreements when entered into may be
binding the Act requires them to be registered in the County
Court, or in Scotland in the Sheriff Court. Either the work-
man or the employer may apply to the Registrar of the
County Court (or in Scotland to the Sheriff Clerk) to register
the agreement, and once the agreement is registered it has
the same force as a County Court judgment, or in Scotland
as a decree-arbitral. It is not necessary that the agreement
should be in writing. A written agreement is, of course, more
satisfactory in every way, but an oral agreement can be
registered. All that is necessary is that the person asking
for registration of an oral agreement shall write down in his
own words the substance of the agreement; the Registrar
or Sheriff Clerk will register it if he considers it to be gen-
uine. An implied agreement even may be registered. An
implied agreement is one that has neither been written nor
spoken, but may be inferred from the conduct of the parties
concerned. Thus, if an employer, without making any prom-
ise, pays compensation weekly to an injured workman the
court will, under certain circumstances, say that there is an
implied agreement which can be registered. It must not,
however, be assumed that in every case where an employer
voluntarily pays compensation an agreement can be implied.
There may be other facts to be taken into account. Either
the employer or the workman may register the agreement,
but by Section 11 (1) (c) of the National Insurance Act a
special duty is laid upon the employer when the agreement
942 bradbury's workmen's compensation law
In general
is for the payment of a lump sum in lieu of weekly payments
or for the payment of less than 10s. a week. In either of
such cases the employer is bound under the act to give notice
of the agreement either to the Insurance Commissioners or
to the workman's approved society or (if the workman is
a deposit contributor) to the Local Insurance Committee.
This notice muit be given within seven days from the making
of the agreement. "x
Both employer and workman are entitled to be present
when the agreement is registered.
A workman employed by contractors was knocked down
and injured by the defendants' tramcar. He received several
weekly payments from his employers and gave them re-
ceipts therefor. Subsequently he repaid to the employers
the amount he has received from them, and sued the defend-
ants for damages. At the trial the workman stated that he
did not understand the nature and terms of the receipts he
had signed. The County Court judge dismissed the case,
holding, as a matter of law, that he had recovered compensa-
tion within the meaning of § 6 of the Workmen's Compensa-
tion Act, and that his action was therefore barred. The
Court of Appeal held that it was a question for the jury
whether the plaintiff understood the nature and effect of
the receipts he had signed. Huckle v. The London County
Council (1910), 4 B. W. C. C. 113.
An illiterate and ignorant workman gave a cumulative re-
ceipt for all payments of compensation received by him.
This sum included one week in advance, but no other addi-
tional payment. It was found, as a fact, that the workman
was not recovered at this date, nor at the date of the hearing
of the arbitration. The employer applied to record a mem-
orandum of agreement of final discharge, and the workman
at the same time applied to record one to pay him compensa-
1 From an Article by John H. Greenwood in the Fifty-fifth Quarterly
Report of the General Federation of Trade Unions of Great Britain
(Mareh; 1913}.
COMPROMISING COMPENSATION CLAIMS 943
In general
tion. It was held that the " final discharge "was not a genu-
ine agreement, and should not be recorded, but that the
workman's memorandum should be recorded. Macandrew
v. Gilhooley (1911), 48 Scotch L. R. 511; 4 B. W. C. C.
370.
A judge refused to record a memorandum of agreement
for a lump sum settlement on the ground of inadequacy.
The workman then applied for compensation, and the judge,
finding that his incapacity was no longer due to the accident
and that the amount in fact paid under the settlement was
enough to cover all compensation due for the short period
during which the incapacity had been due to the accident,
decided in favor of the employers. The Court of Appeal held
that the judge was entitled to decide the application for
compensation freely on the evidence and was not bound by
his previous decision to award compensation. Beech v.
Bradford Corporation (1911), 4 B. W. C. C. 236.
A workman entitled to compensation under the Work-
men's Compensation Act of 1906 signed a discharge which
purported to be in full satisfaction of all claims, past and
future, in the belief that he was merely signing a receipt
for compensation past due. The employer's cashier took
the discharge in the belief that the workman had fully re-
covered, whereas he was still totally incapacitated. Compen-
sation was awarded, it being held that the workman was
not barred from recovering compensation by the discharge.
Ellis v. The Lochgelly Iron and Coal Co. (1909), 46 Scotch
L.R.960;2B.W.C.C. 136.
Where a claimant signed a release expressing a considera-
tion of £35 and it appeared only the sum of £17, 10s. was
paid, and the balance was paid as wages, it was held that
there was accord but no satisfaction, and that the receipt
did not contain a genuine agreement under the Act. Hawkes
v. Richard Coles and Sons (1910), 3 B. W. C. C. 163.
A compensation agreement between the workman and
his employers stated that the workman should receive a
944 Bradbury's workmen's compensation law
In general
lump sum of money and be given regular employment, as
foreman in the works, at specified wages. The employers
paid the sum of money and kept the workman in their em-
ployment on the terms arranged for nearly three years,
when they dismissed him owing to a dispute. The workman
thereupon brought an action against them for damages for
breach of contract, and it was held that the action could not
be maintained as there was no breach of contract, the em-
ployers having given the workman regular employment for a
considerable period. . Lawrie v. James Brown & Co. (1908),
45 Scotch L. R. 477; 1 B. W. C. C. 137.
A seaman sustained serious injuries. He was conveyed
to a hospital while unconscious and remained there after his
discharge from the ship for fifteen weeks. The shipowners
made payments for his maintenance during that period
equal to the full weekly compensation for which they were
liable. They were not legally liable to make these payments
under the Merchant Shipping Act. It was held that such
payments were a benefit which the workman received from
the employers during the period of his incapacity, and that
they must be taken into account in fixing the amount of
compensation. Kempson v. Owners of Schooner ' ' Moss Rose ' '
(1910), 4 B. W. C. C. 101.
On an application for compensation account must be taken
of a lump sum paid by the employer in full settlement. Hors-
man v. Glasgow Navigation Co. (1909), 3 B. W. C. C. 27.
A workman met with an accident to his head in 1909.
Apparently he got perfectly well and returned to his work.
Two years later he died from the effects of an operation for
abscess on the brain. Upon the dependents claiming com-
pensation the employers offered £.10 in settlement. The
sum was accepted and the money paid into Court. The
Registrar refused to record the memorandum of agreement
inasmuch as two of the children were minors, and on appeal
to the Court of Appeal it was held that the sum offered was
inadequate and the memorandum was properly refused.
COMPROMISING COMPENSATION CLAIMS 945
California
Johnson v. Oceanic Steam Navigation Co. (1912), 5 B. W. C.
C. 322.
ARTICLE B— SPECIFIC PROVISIONS OF VARIOUS STATUTES
ARIZONA
The parties may settle the question of compensation by
written agreement. § 25.
CALIFORNIA 1
The parties may settle their differences by agreement but
such agreement is not valid unless it provides for full com-
pensation in accordance with the provisions of the Act and
is also approved by the Industrial Commission. § 33.
1 Applicant was injured while working for the California Stevedore &
Ballast Company. He fractured a rib and injured his side. He worked
for a short time after the accident, but was forced to seek medical atten-
tion. Applicant asked for compensation and was taken to task for not
reporting the injury sooner. The statement was made that the Insurance
Company would be interviewed to see what could be done. The result
was an offer of $10 in order to secure a release. Applicant claimed addi-
tional compensation, and defendants resisted on the ground that a release
had been given. Held by the majority of the Board that the release was
binding and that no further compensation was due. A dissenting opinion
was filed by one member of the Board on the ground that applicant was
unaccustomed to legal proceedings, that he was a foreigner and at a de-
cided disadvantage in a transaction such as the one under discussion, that
his rights had not been explained to him and that the Act clearly states
that the contending parties have the right "to compromise and settle
upon such terms as they may agree upon, any liability which may be
claimed to exist under this act on account of such injury or death."
Nelson v. California Stevedore and Belfast Co. & Pacific Coast Casually Co.,
Cal. Indus. Ace. Bd. (opinion by Commissioners Pillsbury and Morrison;
Commissioner French dissented).
Applicant injured right eye. He had received compensation and had
been furnished with hospital and medical attention, and employer re-
quired a release from all further liability as a condition precedent to pay-
ing $28.20 to applicant. It was decided that this release was a receipt and
applicant was awarded $28.14 additional compensation. Cianti v. ML
Whitney Power and Electric Co., Cal. Indus. Ace. Bd., Feb. 7, 1913.
60
946 bradbury's workmen's compensation law
Maryland
CONNECTICUT
Agreements relating to compensation must be approved
by a Commissioner before they are valid. Part B, § 22.
ILLINOIS
Any agreement relating to compensation made within
seven days after the injury shall be presumed to be fraudu-
lent. § 22. No provision of the Act in relation to the amount
of compensation can be waived except by the approval of
the Industrial Board. § 23.
IOWA
Any agreement relating to compensation made within
twelve days after the injury is presumed to be fraudulent.
Part I, § 19. No employe or beneficiary has power to waive
any provision of the Act as to the amount of compensation.
Part I, § 18. Agreements as to compensation must be filed
with the Industrial Commissioner and unless he disapproves
the same within twenty days the agreement stands approved.
Part II, § 26.
KANSAS
The amount of compensation may be settled by agreement
§ 23. This agreement must be in writing. § 27. It shall be
filed in the office of the District Court in the county in which
the accident occurred within sixty days after it is made;
otherwise it is void as to the workman. § 28.
MARYLAND
All controversies are settled by agreement between the
parties, and if they cannot agree, by arbitration. § 13.
COMPROMISING COMPENSATION CLAIMS 947
Nevada
MASSACHUSETTS
Questions relating to compensation are settled by agree-
ment, but this agreement is not binding until it is filed with
and approved by the Industrial Accident Board. Part III,
§4.
MICHIGAN
The parties may agree upon the compensation to be paid,
but the agreement is not binding until it is approved by the
Industrial Accident Board. Part III, § 5.
MINNESOTA
The parties may settle all matters of compensation be-
tween themselves, but the amounts must be substantially
those provided by the Compensation Act and must be ap-
proved by a judge of the District Court. § 22.
NEBRASKA
The interested parties shall have the right to settle all
matters of compensation between themselves in accordance
with the provisions of the Act. § 36. In case of non-resident
alien dependents the consular officer or his representative
residing in the State of Nebraska shall have, in behalf of
such non-resident dependents, the right to adjust and settle
all claims for compensation and to receive for distribution
among such non-resident alien dependents all compensation
arising under the Act. § 22 (5).
NEVADA
All claims for compensation against the State Insurance
fund are determined by the Nevada Industrial Commission.
948 bradbury's workmen's compensation law
New Jersey
NEW HAMPSHIRE
There is no prohibition against compromising claims i:i
the New Hampshire Act. Nor is there any power of revision
vested in any person when an employer and his employe
agree upon a basis of compensation. In fact the statute
plainly contemplates such agreements and provides a remedy
only when an agreement is not reached. § 9.
NEW JERSEY »
Questions relating to compensation are settled by agree-
ment between the parties. § 2, subd. 18. No agreement
between the parties for a lesser sum than that which may be
1 A workman was employed to assist in loading and unloading wagons
and also to assist in and about "the care of the wagons. He was requested
by his employer to grease a wheel of one of the wagons. While complying
with this request and standing in front of the employer's store the wagon
on which he was engaged was struck by a truck driven by the employe"
of a third person, and received injuries which disabled him for ten weeks.
Subsequently he made a claim against the employer owning the truck and
that claim was settled. He then made a claim against his immediate
employer for compensation. It was held that the injury arose out of the
employment and also that the settlement with a third person did not bar
the claim for compensation. Perlsburg v. MuUer, Essex Common Pleas,
35 N.J. Law J. 202.
The ends of two fingers of a workman had been removed and compensa-
tion was paid for a certain length of time, after which the insurance com-
pany took a general release from the workman who was a foreigner and
did not understand the English language although he could write his name
and did sign the general release. It appeared that the workman was
entitled to greater benefits under the provisions for specific amounts in
case of permanent partial disability. It was held that the release had been
secured without the workman understanding that it was a release, and
therefore was not binding on him, but the court did not determine the
question of whether or not the release would have been good had there
been no fraud or misunderstanding. Pabiss v. Newark Spring Mattress
Co., Essex Common Pleas, Feb. 1913 ; 36 N. J. Law J. 114.
COMPROMISING COMPENSATION CLAIMS 949
Oregon
determined by the judge of the Court of Common Pleas to
be due shall operate as a bar to the determination of a con-
troversy on the merits, or to the award of a larger sum if it
shall be determined by said judge that the amount agreed
upon is less than the injured employ^ or his dependents are
entitled to receive. § 2, subd. 20. The procedure in relation
to this matter in New Jersey is somewhat anomalous. While
the parties are allowed to agree as to the amount of com-
pensation and these agreements are not subject to direct
revision or approval, nevertheless, if they provide for a sum
other than the amount specified in the statute the employe
or dependent may thereafter bring a proceeding for compen-
sation and the agreement will not be a bar to such a proceed-
ing.
NEW YORK
There is no such thing as an agreement relation to compen-
sation under the New York Act. In each case the amount
due must be determined by the Commission. The workman
makes his claim to the Commission and the Commisssion
hears the case and fixes the amount of compensation. § 20.
OHIO
All questions relating to compensation payable out of the
State fund are determined by the Industrial Commission.
Where an employer decides to carry his own insurance and
does not join the State fund it would seem that power was
given to the employer and the employ^ to determine the
amount due by agreement. §§ 1465-68, § 21 of the Act of
1913; §§ 1465-69, § 22 of the Act of 1913; and §§ 1465-72,
§ 25 of the Act of 1913.
OREGON
Claims against the State Insurance fund are determined
by the Industrial Accident Commission.
950 bradbury's workmen s compensation law
Wisconsin
RHODE ISLAND
The parties may agree upon the compensation to be paid,
but the agreement must be approved by a justice of the
Superior Court. Art. Ill, § 1.
*
TEXAS
Agreements as to compensation may be made between
the parties themselves. Part II, § 5.
WASHINGTON
Claims against the State Insurance fund are determined
by the Industrial Accident Commission.
WEST VIRGINIA
Claims against the State Insurance fund are determined
by the Public Service Commission.
WISCONSIN
The parties may settle claims in relation to compensa-
tion, but all such agreements may be reviewed, set aside,
modified or affirmed by the Industrial Commission upon
application made within one year from the time the agree-
ment is accepted. §§ 2394-15.
CHAPTER XXI
COMMUTATION OF CLAIMS AND AWARDS »
Page
ARTICLE A — Specific Provisions of Various Statutes 951
Page
Arizona 951 Nevada 954
California 952 New Hampshire 955
Connecticut 952 New Jersey 955
Illinois 952 New York 955
Iowa 953 Ohio 956
Kansas 953 Oregon 956
Maryland 953 Rhode Island 956
Massachusetts 953 Texas 956
Michigan 954 Washington 956
Minnesota 954 West Virginia 957
Nebraska 954 Wisconsin 957
ARTICLE A— SPECIFIC PROVISIONS OF VARIOUS STATUTES
ARIZONA
The court may order the amount of compensation paid in
one lump sum. § 75.
1 Most of the statutes contain specific provisions relating to present
lump-sum payments in full settlement of any claim for compensation.
Each statute must be consulted. The decisions below will be found useful
in applying the principles underlying such lump-sum payments.
In arriving at a lump-sum to be paid the court should not take the
actual value of the compensation based on the man's age and his ex-
pectancy of life, but upon a business footing as between employer and
employe\ Grant & Aldcroft v. Conroy (1904) , 6 W. C. C. 153.
A workman in receipt of maximum compensation of 17s. 3d. per week,
agreed with his employers to receive the sum of £175 to redeem the
liability. The judge refused to allow the agreement to be registered, but
this decision was overruled on appeal and the agreement was ordered to be
951
952 bradbuey's workmen's compensation law
Illinois
CALIFORNIA
Commutation of the entire amount of compensation may
be ordered by the Commission when it is determined to be
for the best interests of either party. § 23. Or all future
payments may be ordered to be deposited in a savings bank
or trust company. § 23.
CONNECTICUT
All future payments may be commuted in a single lump
sum by order of the Commissioner. Part B, § 28.
ILLINOIS
All future payments may be commuted to a lump sum by
order of the Industrial Board. § 9. Any employer may be
relieved of further liability by depositing the value of future
payments in accordance with the direction of the Industrial
Board. § 25.
recorded. O'Neill v. The Anglo-American Oil Co. (1909), 2 B. W. C. C.
434.
A workman sustained injuries in the course of his employment, whereby
he lost his arm. The employer paid compensation for six months and then
applied to have the payments redeemed by payment of a lump sum. The
arbitrator, without inquiring as to the workman's capacity for work, fixed
the amount of the lump-sum on the basis of permanent incapacity, and it
was held on appeal that the arbitrator had not exceeded his jurisdiction.
National Telephone Co. v. Smith (1909), 46 Scotch L. R. 988; 2 B. W. C. C.
417.
Where the employers' right to redeem part of the payment of a lump-
sum is absolute under the statute, the Judge to whom the application is
made should provide for investing the sum for the benefit of the workman
where, in his opinion, it would not be for the benefit of the workman to
have so large a sum paid to him at once. Kendall & Gent v. Pennington
(1912),5B.W.C.C335.
COMMUTATION OF CLAIMS AND AWARDS 953
Massachusetts
IOWA
All future payments may be commuted to a lump sum by
order of any judge of the District Court for the county in
which the accident occurred. § 15.
KANSAS
The amount of all future payments may be commuted to a
lump sum in death cases. § 14. Where payments have been
continued for not less than six months all future payments
may be commuted to one lump by agreement of the parties,
or by application to a judge of the District Court. § 33.
MARYLAND
The question of whether or not the amount is to be paid
in a lump sum or in weekly payments depends upon the
original contract in relation to compensation, which the
employer is authorized to make under the Act. § 5 (c).
MASSACHUSETTS 1
Whenever any weekly payment has been continued for
not less than six months the remainder of the compensation
may, in unusual cases, be redeemed by the payment of a
lump sum subject to the approval of the Industrial Accident
Board. Part III, § 22.
1 The Board has ruled that it has no authority to approve the payment
of compensation in a lump-sum in any case where the weekly payment has
been continued for not less than six months and that only in unusual cases
may the payment of a lump-sum be made after six months in lieu of
weekly payments. Bulletin No. 2, Mass. Ind. Ace. Bd., Jan. 1913, p. 12.
The right of a widow to compensation is entirely separate from that of
her husband and the signing of a release at common law by him prior to
his death does not operate to deprive her of her claim for compensation
under the Massachusetts Act. Cripps v. Aetna Life Ins. Co., Mass. Indus.
Ace. Bd., (Appeal pending to Supreme Judicial Court).
954 bbadbury's workmen's compensation law
Nevada
MICHIGAN
Whenever any weekly payment has been continued for
not less than six months the balance of the compensation
may be redeemed by payment of a lump sum by agreement
of the Industrial Accident Board, and in certain cases the
Board may di?ect that all deferred payments be commuted
to the present worth thereof. Part II, § 22.
MINNESOTA
Future payments may be commuted to a lump sum by
agreement of the parties, approved by the court, except that
compensation due for death or permanent total disability
or for permanent partial disability, resulting from the loss
of an arm, or a hand, or a foot, or a leg, or an eye, can be
commuted only with the consent of the District Court.
Part II, § 25. The employer may deposit the entire amount
due with a trustee and thereby be discharged of any further
liability. Part II, § 28.
NEBRASKA
All future payments may be commuted to one lump sum
by agreement of the parties except compensation due for
death and permanent disability which may be commuted
only with the consent of the District Court. Part II, § 40.
The employer may pay the entire amount of any future com-
pensation payments to a trustee who may be discharged
under certain circumstances. Part II, § 43.
NEVADA
All future payments may be commuted to a lump sum
by order of the Industrial Commission. § 31.
COMMUTATION OF CLAIMS AND AWARDS 955
New York
NEW HAMPSHIRE
The court may grant an order for the payment of a lump
sum either on the application of the workman or the em-
ployer. § 9.
NEW JERSEY 1
All future payments may be commuted by an order of the
Court of Common Pleas, but such commutation is not
favored. § 2, subd. 21. A sum equal to future payments
may be deposited by leave of court and the employer there-
after relieved of liability. § 2, subd. 21 (a).
NEW YORK
Future payments may be commuted and paid into the
State Insurance fund for the benefit of employes or depen-
dents. § 27.
1 In commuting the amount payable the judge should not merely multi-
ply the weekly payment by the number of weeks for which compensation is
allowed, but should determine the present value of the weekly payments
for the period specified in the statute. James A. Banistar v. Krigh, 36
N. J. Law J. 307; 85 Atl. Rep. 1027.
A direction by the Court of Common Pleas that the weekly payments be
commuted to a lump-sum, pursuant to paragraph 21 of the New Jersey
Workmen's Compensation Act, should be based on specific findings of
fact, supported by legal evidence. New York Ship Building Company v.
Buchanan, 000 N. J. Law 000; 87 Atl. Rep. 86.
A decision commuting payments to a lump-sum under the New Jersey
Workmen's Compensation Act should contain the basis of the award in
amount per week and number of weeks. Long v. Bergen County Court of
Common Pleas, 000 N. J. Law 000; 86 Atl. Rep. 529.
A workman who had lost the sight of an eye made a request that the
compensation be commuted to a lump-sum for the purpose of buying a
cigar, fruit and candy store. It did not appear from the testimony that the
workman knew anything about the business or its value and his request
for a commutation was based entirely upon the information received from
others. Under such circumstances the court refused to make the order for
commutation. Dikovich v. American Steel and Wire Co., 36 N. J. Law J.
304.
956 bradbury's workmen's compensation law
Washington
OHIO
The Commission "under special circumstances, and when
the same is deemed advisable, may commute periodical
benefits to one or more lump sum payments." §§ 1465-87;
§ 40 of the Acts of 1913. While the above provision was
intended originally to apply to the State Insurance Fund,
apparently it applies to payments from employers who decide
to carry theii own insurance as well.
OREGON
Where a beneficiary resides out of the State and has been
such non-resident for a period of one year the Commis-
sion may commute all future payments to a lump sum.
§21 (k).
RHODE ISLAND
If payments have been continued for not less than six
months either party may apply to a Superior Court for an
order commuting future payments to a lump sum. Art. 2.
§25.
TEXAS
In cases where death or total permanent disability re-
sults the future payments may be commuted to a lump sum
subject to the approval of the Industrial Accident Board.
Part II, § 15.
WASHINGTON
In case of non-resident beneficiaries, the department
may commute the amount due to a lump sum. § 5 (j).
The department may in any case of death or total disability
commute future payments to a lump sum. § 7.
COMMUTATION OF CLAIMS AND AWARDS 957
Wisconsin
WEST VIRGINIA
The Commission under special circumstances, when the
same is deemed advisable, may commute periodical pay-
ments to one or more lump payments. § 41.
WISCONSIN »
At any time after six months have elapsed from the date
of the injury the Industrial Commission may commute
future payments to a lump sum. §§ 2394-9 (5) (e).
1 The husband of the applicant was employed as a track laborer on an
electric railway. He fell from a hand car and was killed. He left a widow
and five children. The average earnings of the deceased for the preceding
year amounted to $642.83. The employer did not deny liability. The
applicant asked to have the entire compensation paid in a lump-sum as
she desired to return to Italy. The Commission ruled that the sum of
$300 be paid to the applicant within ten days and that the sum of $48 per
month thereafter be paid until the sum of $2,571.32 was paid. In a mem-
orandum the Commission recognized the desire of the applicant to return
to her former home in Italy and agreed that she could live more cheaply
there than she could in the United States, as was argued- For that reason
a part of the award was directed to be paid in a lump-sum. Anna Lesandro
v. Milwaukee Electric By. & Light Co., Wis. Indus. Com., Dec. 13, 1912.
CHAPTER XXII
INSURANCE OF COMPENSATION *
Page
ARTICLE A— Introduction 958
Page
1. Character and necessity
or such insurance .... 958
ARTICLE B — Specific Provisions of Various Statutes 962
Page
Arizona 962 Nevada 980
California 962 New Hampshire -, 980
Connecticut 965 New Jersey 980
Illinois 966 New York 980
Iowa - 969 Ohio 983
Kansas 972 Oregon 984
Maryland 972 Rhode Island 984
Massachusetts 973 Texas 984
Michigan 974 Washington 985
Minnesota 976 West Virginia 985
Nebraska 978 Wisconsin 986
ARTICLE A— INTRODUCTION
1. Character and necessity of such insurance.
Under liability insurance policies it has heretofore been a
rule of almost universal application that there could be no
1 Under the British Columbia Compensation Act it was held that a
workman could not recover from a liability insurance company which had
issued a policy to his employer who subsequently became insolvent.
Disourdi v. Sullivan Group Mining Co. and Another (1910), 15 B. C. R.
305;4B.W.C.C462.
An injured workman was paid compensation by a company which be-
came insolvent and was wound up. The company was insured against
accidents under the Act and on the company ceasing to pay compensation
the workman brought proceedings against the insurers. The insurers
958
INSURANCE OF COMPENSATION 959
Character and necessity of such insurance
direct recovery by a workman, or the representatives of a
deceased employ^, against the insurance company. Such
policies have been purely indemnity contracts in favor of
employers. It was specifically provided therein that no suit
would lie thereon except to recover money actually paid by
the assured, on a judgment, after a trial of the issues. Most
of such policies still so provide, in all cases except in those
States where by statute the companies are required to assume
a direct liability to those who are injured. When, therefore,
an employer becomes insolvent, or bankrupt, and cannot
pay a judgment against him, rendered because of the injury
or death of an employe^ the insurance company has entirely
escaped liability. The companies have universally and still
do take advantage of such a situation wherever possible.
They take the position that they have made no contract
with the employe' and they are therefore under no obligation
to pay him anything. By making it a condition precedent
that the employer must actually pay the money before it is
liable the insurance company escapes payment.
alleged that there was a dispute between them and the workman's em-
ployers as to whether the latter had taken precautions against accidents, as
required by the policy, and that until this dispute had been settled by
arbitration, in accordance with the terms of the policy, the employers could
not claim against them and that the workman had no greater rights than
his employers had. The contention of the insurers was upheld by the
County Court judge and this decision was affirmed by the Court of
Appeal. King v. Phoenix Assurance Co. (1910), 3 B. W. C. C. 442.
There must be an admission of liability on the part of the insurer, or a
finding by a competent tribunal, before the provisions of § 6 of the British
Columbia Workmen's Compensation Act of 1902, as to the payment into
court, can be invoked. Disowdi v. Sullivan Group Mining Company and
Maryland Casualty Co. (No. 2) (1909), 14 B. C. R. 256; 2 B. W. C. C. 508.
In the Supreme Court of British Columbia it was held that any right which
the applicant for compensation might have against the employers under § 6
of the British Columbia Compensation Act must be decided in an action
commenced in the ordinary way and that the rules made under § 6 were
ultra vires. Disourdi v. Sullivan Group Mining Co. and Maryland Casualty
Co. (No. 3), 14 B. C. R. 273; 2 B. W. C. C. 514.
960 Bradbury's workmen's compensation law
Character and necessity of such insurance
In many of the States the compensation acts require the
companies to issue policies giving a direct remedy to em-
ployes. It is obvious, from the wording of some of the
statutes, that the various legislatures have not fully under-
stood this subject. They have, in some instances, given to
the employes the same right to recover against the insur-
ance company that the employer has. Of course, this inade-
quately protects the rights of the employed If they go a
little further and say that the employe1 shall have the same
right to recover against the insurer that the employer would
have had if he had paid the compensation to the employe^
this will be better. But even this is not entirely satisfac-
tory, where the policy contains a provision that the insurer
shall be liable only upon payment by the employer of a judg-
ment entered after a trial of the issues. Because the employe1
may still find himself enmeshed in a net of technicalities
by the requirement that the liabilty of the insurer must be
predicated upon a judgment after a trial. Such a provi-
sion might be appropriate in common law, or so called em-
ployers' liability cases, as distinguished from workmen's
compensation controversies, but it is utterly unfitted for
the latter, in which periodical payments are the rule.
The necessity of some form of insurance in compensation
cases is obvious. Under the old rule a judgment for the
full amount could be enforced at once when the case finally
went to judgment. In compensation cases the payments
are distributed over a long period of time, not infrequently
for ten or fifteen years. A good many employers become
insolvent every year. Unless insured in some way the result
would be that while compensation payments were awarded
they would be uncollectible, in many cases, after a certain
number of payments had been made. Dependents of work-
men who had been killed, as well as injured workmen them-
selves, would therefore find themselves without redress if
there was not some method of securing the payment of such
benefits. This has been recognized in all of the more recent
INSURANCE OF COMPENSATION 961
Character and necessity of such insurance
laws and is becoming a fixed policy in most of the American
States.
Up to this time four methods of insuring such payments
have been devised. One is to compel the employer to demon-
strate that he is of sufficient financial ability to insure such
payments himself. This rule would apply to large corpora-
tions, such as railroads, where even if they should go into
•the hands of a receiver the preference in favor of such claims
would be sufficient to insure their payment in most cases.
The other is to compel the employer to take insurance either
in a stock company or in a mutual association or in a State
insurance fund. These problems are comparatively new
and are now being worked out in a number of States, espe-
cially New York, Massachusetts, Michigan, California, Ohio,
Washington and Connecticut.
The old employers' insurance policies were invariably
limited in amount. That is, it was specified that the com-
pany should not be liable for a sum in excess of $5,000 by
reason of the injury to or death of one employe1, and not more
than $10,000 because of any one accident in which two or
more employes were injured or killed. Of course, these
amounts were sometimes increased. For example, policies
were written with limitations of $10,000 and $20,000. Poli-
cies were also written with an initial limitation of $10,000
and a second limitation of from $25,000 to $100,000. Such
policies are still so written, even in the compensation States,
unless the law itself requires them to be unlimited. The
first law to require the companies to write unlimited policies
was that of Massachusetts. That has been followed by
similar laws in a number of other States, notably New York,
Michigan, Connecticut, California and Texas. In New Jer-
sey the employers are not required to insure and the policies
which have been written in that State have usually been
limited in amount and have been in the form of the old
employers' liability policies without right on the part of
employes to sue the companies direct.
61
962 bradbuky's workmen's compensation law
California
The specific provisions of the various statutes on this
subject will be found in Article B of this Chapter.
ARTICLE B— SPECIFIC PROVISIONS OF VARIOUS STATUTES
ARIZONA
There is no provision on this subject in the Arizona Act.
*
CALIFORNIA 1
"§ 34. (a) Nothing in this act shall affect the organization
of any mutual or other insurance company, or any existing
contract for insurance or the right of the employer to insure
in mutual or other companies, in whole or in part, against
liability for the compensation provided for by this act; or, to
provide by mutual or other insurance, or by arrangement
with his employe's, or otherwise, for the payment to such em-
ployes, their families, dependents or representatives, of sick,
accident or death benefits, in addition to the compensation
provided for by this act.
"(6) Liability for compensation shall not be reduced or
affected by any insurance, contribution, or other benefit what-
soever due to or received by the person entitled to such com-
pensation, except as otherwise provided by this act, and the
person so entitled shall, irrespective of any insurance or other
contract, except as otherwise provided in this act, have the
right to recover such compensation directly from the employer,
and in addition thereto, the right to enforce in his own name,
in the manner provided in this act, either by making the insur-
1 Cancellation of Insurance Policy after accident; bankruptcy of em-
ployer. Applicant was injured while in the employ of the Locke Construc-
tion Company, which company subsequently had business difficulties and
its compensation policy was cancelled by the Southwestern Surety In-
surance Company. Held that applicant was entitled to recover from the
insurance carrier, according to the law of 1911, inasmuch as, at the time of
the accident, insurance was in force. The sum of $59. 1 1 was awarded appli-
cant, in addition to $48.75 which had previously been paid. Cunningham
v. Locke Construction Co. and Southwestern Surety Ins. Co., Cal. Indus.
Ace. Bd.
INSURANCE OF COMPENSATION 963
California
ance carrier a party to the original application or by filing a
separate application, the liability of any insurance carrier,
which may, in whole or in part, have insured against liability
for such compensation; provided, however, that payment in
whole or in part of such compensation by either the employer
or the insurance company shall, to the extent thereof, be a bar
to recovery against the other of the amount so paid; and pro-
vided, further, that as between the employer and the insurance
company, payment by either directly to the employ^, or to
the person entitled to compensation, shall be subject to the
conditions of the insurance contract between them.
" (c) Every contract insuring against liability for compen-
sation, or insurance policy evidencing the same, must contain
a clause to the effect that the insurance carrier shall be directly
and primarily liable to the employe" and, in the event of his
death, to his dependents, to pay the compensation, if any, for
which the employer is liable; that, as between the employe" and
the insurance carrier, the notice to or knowledge of the occur-
rence of the injury on the part of the employer shall be deemed
notice or knowledge, as the case may be, on the part of the
insurance carrier; that jurisdiction of the employer shall, for
the purpose of this act, be jurisdiction of the insurance carrier
and that the insurance carrier shall in all things be bound by
and subject to the orders, findings, decisions or awards ren-
dered against the employer under the provisions of this act.
" (d) Such policy must also provide that the employ6 shall
have a first lien upon any amount which shall become owing
on account of such policy to the employer from the insurance
carrier and that in case of the legal incapacity or inability of
the employer to receive the said amount and pay it over to the
employe or his dependents, the said insurance carrier may
and shall pay the same directly to the said employe" or his
dependents, thereby discharging to the extent of such pay-
ment the obligations of the employer to the employe^ and such
policy shall not contain any provisions relieving the insurance
carrier from payment when the employer becomes insolvent
or is discharged in bankruptcy, or otherwise, during the
period that the policy is in operation or the compensation
remains owing.
964 bradbury's workmen's compensation law
California
"(e) 1. If the employer shall be insured against liability for
compensation with any insurance carrier, and if after the hap-
pening of any accident such insurance carrier shall serve or
cause to be served upon any person claiming compensation
against such employer a notice that it has assumed and agreed
to pay the compensation, if any, for which the employer is
liable, and shall file a copy of such notice with the Commission,
such employer shall thereupon be relieved from liability for
compensation to such claimant and the insurance carrier shall,
without notice, be substituted in place of the employer in any
proceeding theretofore or thereafter instituted by such person
to recover such compensation, and the employer shall be dis-
missed therefrom. Such proceeding shall not abate on account
of such substitution but shall be continued against such insur-
ance carrier.
"2. If at the time of the happening of an accident for which
compensation is claimed, or may be claimed, the employer
shall be insured against liability for the full amount of com-
pensation payable, or that may become payable, the employer
may serve or cause to be served upon any person claiming
compensation on account of the happening of such accident
and upon the insurance carrier a notice that the insurance
carrier has, in its policy contract or otherwise, assumed and
agreed to pay the compensation, if any, for which the employer
is liable, and may file a copy of such notice with the commis-
sion. If it shall thereafter appear to the satisfaction of the
commission that the insurance carrier has, through the is-
suance of its contract of insurance or otherwise, assumed such
liability for compensation, such employer shall thereupon be
relieved from liability for compensation to such claimant and
the insurance carrier shall, after notice, be substituted in place
of the employer in any proceeding theretofore or thereafter
instituted by such person to recover such compensation, and
the employer shall be dismissed therefrom. Such proceeding
shall not abate on account of such substitution, but shall be
continued against such insurance carrier.
"(f) Where any employer is insured against liability for
compensation with any insurance carrier and such insurance
carrier shall have paid any compensation for which the
INSURANCE OF COMPENSATION 965
Connecticut
employer was liable, or shall have assumed the liability of
the employer therefor, it shall be subrogated to all the rights
and duties of the employer and may enforce any such rights
in its own name.
" § 35. (a) If any insurance policy shall be issued cover-
ing liability for compensation, which policy shall contain any
limitation as to the compensation payable, such limitation
shall be printed in the body of such policy in boldface type and
in addition thereto the words 'limited compensation policy'
shall be printed on the top of the policy in bold-faced type not
less than eighteen point in size.
" (b) No insurance carrier shall insure against the liability
of the employer for damages recoverable at law by the injured
employe under the optional provisions contained in section
twelve hereof, and any insurance carrier liable to any such
injured employe for compensation upon the payment of the
same shall have the same option given by said section twelve
to such employe and shall be fully subrogated to his rights,
and may enforce such liability for damages against the
employer in its own name, anything in the insurance contract
to the contrary notwithstanding."
Public corporations can only insure in the State Insurance
Fund "unless such fund shall refuse to accept the risk."
§46.
CONNECTICUT
"PartB. §30. Insurance of Compensation Liability. Every
employer subject to part B who shall not furnish to the com-
missioner satisfactory proof of his solvency and financial
ability to pay directly to injured employes or other beneficia-
ries the compensation provided by this act, shall insure his full
liability under part B in one or both the following ways : (1) By
filing with the insurance commissioner in form acceptable to
him security guaranteeing the performance of the obligations
of this act by said employer; or, (2) by insuring his full liability
under part B of this act in such stock or mutual companies or
associations as are or may be authorized to take such risks in
966 Bradbury's workmen's compensation law
Illinois
this state, or by such combination of the above-mentioned
two methods as he may choose, subject to the approval of the
insurance commissioner.1
"§ 31. Requirements in Insurance Policies. Every policy
insuring the payment of compensations under this act shall
contain a clause to the effect that as between the employe" and
the insurer notice and knowledge of the occurrence of injury
by the insured shall be deemed notice and knowledge by the
insurer, that jurisdiction of the insured for the purposes of
this act shall be jurisdiction of the insurer, and that the in-
surer shall in all things be bound by and subject to the find-
ings, judgments, and awards rendered against such insured.
" § 32. Requirements in Insurance Policies. No policy of
insurance against liability under part B of this act, except as
provided in section thirty, shall be made unless the same shall
cover the entire liability of the employer thereunder and shall
contain an agreement by the insurer that, in case the insured .
shall become insolvent or be discharged in bankruptcy during
the period that the policy is in operation, or the compensation,
or any part of it, is due and unpaid, or in case an execution
upon a judgment for compensation is returned unsatisfied, an
injured employe^ or other person entitled to compensation
under this act, may enforce his claim to compensation against
the insurer to the same extent that the insured could have en-
forced his claim against such insurer had he paid compensa-
tion."
ILLINOIS
"■§ 26. (a) An employer who elects to provide and pay the
compensation provided for in this Act shall within ten (10)
days of receipt by the employer of a written demand by the
industrial board (1) file with the board a sworn statement
showing his financial ability to pay the compensation provided
for in this Act, normally required to be paid, or (2) furnish
security, indemnity or a bond guaranteeing the payment by
the employer of the compensation provided for in this Act,
normally required to be paid, or (3) insure to a reasonable
1 See Part B, § 42, for penalty for failure to comply with this section.
INSURANCE OF COMPENSATION 967
Illinois
amount his normal liability to pay such compensation in some
corporation, association or organization authorized, licensed
or permitted to do such insurance business in this State, or
' (4) make some other provision for the securing of the payment
of compensation provided for in this Act, nprmally required
to be paid, and shall within twenty (20) days of the receipt
of such written demand furnish to the board evidence of his
compliance with one of the above alternatives: Provided, that
the sworn statement of financial ability, or security, indemnity
or bond, or amount of insurance or other provision, filed, fur-
nished, carried or made by the employer, as the case may be,
shall be subject to the approval of the board, upon the ap-
proval of which the board shall send to the employer written
notice of its approval thereof: And, provided, further, that
demand shall not be made upon the employer by the board
oftener than once in any calendar year.
"(6) If no sworn statement or no security, indemnity or
bond, or no insurance is filed, furnished or carried, or other
provision made by the employer within ten (10) days of receipt
by the employer of the written demand provided for in para-
graph (a), or if the statement, security, indemnity, bond or
amount of insurance filed, furnished or carried, or other pro-
vision made by the employer, as provided in paragraph (a),
shall not be approved by the board, and written notice of such
non-approval shall be given to the employer and the employer
shall not comply with one of the alternatives of paragraph (a)
of this section within ten (10) days after the receipt by the
employer of such written notice of non-approval, then the em-
ployer shall be liable for compensation to any injured employe"
or his personal representative; according to the terms of this
Act, or for damages in the same manner as if the employer
had elected not to accept this Act, at the option of such em-
ploye" or his personal representative: Provided, such option
is exercised and written notice thereof is given to the employer
within thirty (30) days after the accident to such employ^,
otherwise the employer shall be liable only for the compensa-
tion payable according to the provisions of this Act: And,
provided, further, that if at any time thereafter the employer
shall comply with any of the alternatives of paragraph (a),
968 bradbuby's workmen's compensation law
Illinois
then as to all accidents occurring after the said compliance,
the employer shall only be liable for compensation according
to the terms of this Act.
"(c) 'Normal liability' and 'normally required to be
paid,' whenever used herein, shall be measured by the ex-
perience, if any, of the said employer during the two years
preceding ths demand by the board, and if there is no such
individual basis of experience, then by the general experience
in the same industry, business, occupation or enterprise in the
same neighborhood during the same period.
" § 27. (a) This Act shall not affect or disturb the continu-
ance of any existing insurance, mutual aid, benefit, or relief
association or department, whether maintained in whole or
in part by the employer or whether maintained by the em-
ployes, the payment of benefits of such association or depart-
ment being guaranteed by the employer or by some person,
firm or corporation for him: Provided, the employer contributes
to such association or department an amount not less than
the full compensation herein provided, exclusive of the cost of
the maintenance of such association or department and with-
out any expense to the employe1. This Act shall not prevent
the organization and maintaining under the insurance laws
of this State of any benefit or insurance company for the pur-
pose of insuring against the compensation provided for in
this Act, the expense of which is maintained by the employer.
This Act shall not prevent the organization or maintaining
under the insurance laws of this State of any voluntary mu-
tual aid, benefit or relief association among employes for the
payment of additional accident or sick benefits.
" (b) No existing insurance, mutual aid, benefit or relief as-
sociation or department shall, by reason of anything herein
contained, be authorized to discontinue its operation without
first discharging its obligations to any and all persons carrying
.insurance in the same or entitled to relief or benefits therein.
" (c) Any contract, oral, written or implied, of employment
providing for relief benefit, or insurance or any other device
whereby the employe" is required to pay any premium or pre-
miums for insurance against the compensation provided for
in this Act shall be null and void, and any employer withhold-
INSURANCE OF COMPENSATION 969
Iowa
ing from the wages of any employe any amount for the pur-
pose of paying any such premium shall be guilty of a misde-
meanor and punishable by a fine of not less than ten dollars
nor more than one thousand dollars, or imprisonment in the
county jail for not more than six months, or both, in the dis-
cretion of the court."
" § 28. Any person, who shall become entitled to compensa-
tion under the provisions of this Act, shall, in the event of his
inability to recover such compensation from the employer on
account of his insolvency, be subrogated to all the rights of
such employer against any insurance company, association or
insurer which may have insured such employer against loss
growing out of the compensation required by the provisions
of this Act to be paid by such employer, and, in such event
only, the said insurance company, association, or insurer shall
become primarily liable to pay to the employe" or his personal
representative the compensation required by the provisions
of this Act to be paid by such employer."
IOWA
"Part III. § 42. Every employer, subject to the provisions
of this act, shall insure his liability thereunder in some cor-
poration, association or organization approved by the state
department of insurance. Every such employer shall within
thirty (30) days after this act goes into effect exhibit on de-
mand of the state insurance department evidence of his com-
pliance with this section. And if such employer refuses, or
neglects to comply with this section, he shall be liable in case
of injury to any workman in his employ under part one (1)
of this act.
"§ 43. For the purpose of complying with the foregoing
section, groups of employers by themselves or in an associa-
tion with any or all of their workmen, may form insurance
associations as hereafter provided, subject to such reasonable
conditions and restrictions as may be fixed by the state insur-
ance department and membership in such mutual insurance
organization as approved, together with evidence of the pay-
970 Bradbury's workmen's compensation law
Iowa
ment of premiums due, shall be evidence of compliance with
the preceding section.
" § 44. Subject to the approval of the Iowa Industrial Com-
missioner any employer or group of employers may enter into
or continue an agreement with his or their workmen to provide
a scheme of compensation, benefit or insurance in lieu of the
compensate and insurance provided by this act; but such
scheme shall in no instance provide less than the benefits here
secured, nor vary the period of compensation provided for
disability or for death, or the provisions of this act with re-
spect to periodic payments, or the percentage that such pay-
ments shall bear to weekly wages, except that the sums re-
quired may be increased; Provided, further, that the approval
of the Iowa Industrial Commissioner shall be granted, if the
scheme provides for contribution by workmen, only when it
confers benefits in addition to those required by this act com-
mensurate with such contributions.
" § 45. Whenever such scheme or plan is approved by the
Iowa Industrial Commissioner, he shall issue a certificate to
that effect, whereupon it shall be legal for such employer, or
group of employers, to contract with any or all of his or their
workmen to substitute such scheme or plan for the provisions
of this act during a period of time fixed by said department.
" § 46. Such scheme or plan may be terminated by the Iowa
Industrial Commissioner on reasonable notice to the interested
parties if it shall appear that the same is not fairly adminis-
tered, or if its operation shall disclose latent defects threaten-
ing its solvency, or if for any substantial reason it fails to
accomplish the purpose of this act; but from any such order
of said Iowa Industrial Commissioner the parties affected,
whether employer or workman, may, upon the giving of proper
bond to protect the interests involved appeal for equitable
relief to the district court of this state.
"§47. No insurer of any obligation under this act shall
either by himself or through another, either directly or indi-
rectly, charge or accept as a commission or compensation for
placing or renewing any insurance under this act more than
fifteen (15) per cent of the premium charged.
"§48. Every policy issued by any insurance corporation,
INSUBANCE OF COMPENSATION 971
Iowa
association or organization to assure the payment of com-
pensation under this act shall contain a clause providing that
between any employer and the insurer, notice to, and knowl-
edge of the occurrence of injury or death on the part of the
insured shall be notice and knowledge on the part of the in-
surer; and jurisdiction of the insured for the purpose of this
act shall be jurisdiction of the insurer and the insurer shall
be bound by every agreement, adjudgment, award or judg-
ment rendered against the insured.
" § 49. No policy of insurance issued under this act shall
contain any provision relieving the insurer from payment if
the insured becomes insolvent or discharged in bankruptcy
during the period that the policy is in operation, or the com-
pensation, or any part of it, is due and unpaid. Every policy
shall provide that the workman shall have a first lien upon
any amount becoming due on account of such policy to the
insured from the insurer, and that in case of the legal incapac-
ity, inability or disability of the insured to receive the amount
due and pay it over to the insured workman, or his depend-
ents, said insurer shall pay the same directly to such work-
man, his agent, or to a trustee for him or his dependents, to
the extent of discharging any obligation of the insured to said
workman or his dependents.
" § 50. Where an employer coming under this act furnishes
proofs to the insurance department satisfactory to the insur-
ance department and Iowa Industrial Commissioner, of such
employer's solvency and financial ability to pay the compen-
sation and benefits as by this act provided, and to make such
payment to the parties, when entitled thereto, or when such
employer deposits with such insurance department security
satisfactory to such insurance department and the Iowa In-
dustrial Commissioner as will secure the payment of such
compensation, such employer shall be relieved of the provi-
sion of section forty-two (42) of this act. Provided that
such employer shall from time to time, as may be required
by such insurance department and Iowa Industrial Commis-
sioner, furnish such additional proof of solvency and financial
ability to pay as by this section of this act provided. The in-
surance department and Iowa Industrial Commissioner may,
972 bradbury's workmen's compensation law
Maryland
at any time, upon reasonable notice to such employer and upon
hearing, revoke for cause any order or approval theretofore
made, as by this act provided and within the contemplation
of this section."
KANSAS
" § 30. Staying -proceedings upon agreement or award. At
any time after the filing of an agreement or award and before
judgment has been granted thereon, the employer may stay
proceedings thereon by filing in the office of the clerk of the
district court wherein such agreement or award is filed: (a) A
proper certificate of a qualified insurance company that the
amount of the compensation to the workman is insured by it:
(b) A proper bond undertaking to secure the payment of the
compensation. Such certificate or bond shall first be approved
by a judge of the said district court."
" § 34. Insurance. Where the payment of compensation
to the workman is insured, by a policy or policies, at the ex-
pense of the employer, the insurer shall be subrogated to the
rights and duties under this act of the employer, so far as ap-
propriate."
MARYLAND
The employer is required to insure compensation by effect-
ing the same in some casualty insurance company authorized
to do business in the State of Maryland, or he may, if he
employs not less than 1,500 employers, establish an insur-
ance fund which is contributed to by his employes and him-
self, or he may request the insurance Commissioner to act as
a depositary of an insurance fund. § 2.
The contract may provide that the employer shall con-
tribute not less than fifty per cent of the insurance premiums
and the employe shall contribute the remainder of the pre-
miums. § 6.
In case the employer provides any insurance fund out of
contributions made by himself and his own employes such
employers shall pay the whole of the expenses of the manage-
INSURANCE OF COMPENSATION 973
Massachusetts
ment of such fund, and all contributions shall be paid into
such fund without any deductions by reason of such expenses.
§6.
The contract may provide that the premium paid by the
employes shall be deducted from their wages. § 8.
MASSACHUSETTS
The only way in which an employer can adopt the com-
pensation principle in Massachusetts is by becdming a
"subscriber." Part I, §5; Part V, §2. This means that
the employer has become a member of the Massachusetts
Employe's' Insurance Association by paying a year's pre-
mium in advance and receiving the receipt of the Association
therefor or has secured a policy in a liability insurance
company authorized to do business in the State of Massa-
chusetts. Part V, §§ 2 and 3. The Massachusetts Employes '
Insurance Association is a mutual insurance organization
created by the compensation act. Originally the directors
for the purpose of organization were appointed by the
Governor. As soon as the Association was organized the
directors were elected from the employers who became
members of the Association and thereafter it became purely a
private mutual insurance association, under public super-
vision, the same as other insurance corporations.
"Part V, § 3. Any liability insurance company authorized
to do business within this Commonwealth shall have the same
right as the association to insure the liability to pay the com-
pensation provided for by Part II of this act, and when such
liability company issues a policy conditioned to pay such com-
pensation the holder of such policy shall be regarded as a sub-
scriber so far as applicable within the meaning of this act,
and when any such company insures such payment of com-
pensation it shall be subject to the provisions of Parts I, II,
III and V and of section twenty-two of Part IV of this act,
and shall file with the Insurance Department its classifications
974 bradbuby's workmen's compensation law
Michigan
of risks and premiums relating thereto and any subsequent
proposed classifications or premiums, none of which shall
take effect until the Insurance Commissioner has approved
the same as adequate for the risks to which they respectively
apply." (As amended by L. 1912, c. 571.)
Rule No. 5
Insurance Association and Companies to Notify Industrial Accident
Board of Employers Who Insure or Cease to Insure
That ihe insurance association and all liability insurance com-
panies shall notify the Industrial Accident Board of the names and
addresses of all employers who insure their liability under the Work-
men's Compensation Act, notice to be given forthwith upon the
issuance of such insurance and a further notice to be given when
employers cease to be so insured.
MICHIGAN
In order to adopt the compensation principle in Michigan
an employer must at the same time provide for the insur-
ance of the compensation claims in the methods specified
in the Act. Part IV, § 1. He must file a statement to the
effect that he elects to adopt the compensation principle.
Part I, § 6. As part of the same transaction he designates
the method of payment or otherwise of insurance of such
claims. Part IV, § 1 below.
"Part IV, § 1. Every employer filing his election to become
subject to the provisions of this act, as hereinbefore set forth,
shall have the right to specify at the time of doing so, subject
to the approval of said industrial accident board, which of the
following methods for the payment of such compensation he
desires to adopt, to-wit:
"First. Upon furnishing satisfactory proof to said board of
his solvency and financial ability to pay the compensation and
benefits hereinbefore provided for, to make such payments
directly to his employes, as they may become entitled to
INSURANCE OF COMPENSATION 975
Michigan
receive the same under the terms and conditions of this
act; or
" Second. To insure against such liability in any employers'
liability company authorized to take such risks in the State of
Michigan; or
"Third. To insure against such liability in any employers'
insurance association organized under the laws of the State of
Michigan; or
"Fourth. To request the commissioner of insurance of the
State of Michigan to assume the administration of the dis-
bursement of such compensation exclusive of that provided
for in part two, section four herein, and the collection of the
premiums and assessments necessary to pay the same, as pro-
vided in part five hereof. Said board, however, shall have the
right, from time to time to review and alter its decision in ap-
proving the election of such employer to adopt any one of the
foregoing methods of payment, if in its judgment such action
is necessary or desirable to secure and safeguard such payments
to employes.
" § 2. Nothing herein shall affect any existing contract for
employers' liability insurance or affect the organization of any
mutual or other insurance company, or any arrangement now
existing between employers and employes, providing for the
payment to such employes, their families, dependents or
representatives, sick, accident or death benefits, in addition
to the compensation provided for by this act. But liability
for compensation under this act shall not be reduced or af-
fected by any insurance, contribution or other benefit what-
soever, due to or received by the person entitled to such com-
pensation, and the person so entitled shall, irrespective of
any insurance or other contract, have the right to recover the
same directly from the employer; and in addition thereto, the
right to enforce in his own name in the manner provided in
this act the liability of any insurance company or of any em-
ployers' association organized under the laws of the State of
Michigan, or the commissioner of insurance, who may, in
whole or in part, have insured the liability for such compensa-
tion: Provided, however, That payment in whole or in part
of such compensation by either the employer, or the insurance
976 bradbury's workmen's compensation law
Minnesota
company carrying such risk, or the commissioner of insurance,
as the case may be, shall; to the extent thereof be a bar to
recovery against the other, of the amount so paid.
"§3. Every contract for the insurance of the compensa-
tion herein provided for, or against liability therefor, shall be
deemed to be made subject to the provisions of this act, and ■
provisions thereof inconsistent with this act shall be void. No
company shall enter into any such contract for insurance,
unless such company shall have been approved by the com-
missioner of insurance as provided by law."
MINNESOTA1
"Part II, § 31a. Any employer who is responsible for com-
pensation as provided in this act may insure the risk in any
manner then authorized by law. But those writing such in-
surance shall in every case be subject to the conditions in this
section hereinafter named.
" If the risk of the employer is carried by any insurer doing
business for profit, or by any insurance association or corpora-
tion formed of employers, or of employers and workmen, to
insure the risks under this act, operating by the mutual assess-
ment or other plan or otherwise, then in so far as policies are
issued on such risks they shall provide for compensation for
1 "An employer subject to the provisions of the Workmen's Compensa-
tion Act may insure himself against liability to pay compensation to a
part of his employes and not others'. He may insure a part of his employes
in one company and others in other companies or not at all. If the em-
ployer insures only a part of his employes and gives the notice provided for
in paragraph 7 of § 31a of said Act, he must use appropriate language
in the notice to clearly indicate which of his employes are covered by in-
surance.
"The insurer cannot limit its liability under either Parts I or II of the
Workmen's Compensation Act but must assume the full obligations
imposed upon the employer by the provisions of the Act. In other words,
the liability of the insurer cannot be limited to certain specified amounts as
was formerly the practice in writing employer's liability insurance. It
follows that policies of insurance may not be written which eliminate the
medical attention feature specified in § 18 of the Act." /. A. 0. Preus,
Commissioner of Insurance, Jan. 12, 1914.
INSURANCE OF COMPENSATION 977
Minnesota
injuries or death according to the full benefits of Part II of this
act.
"Such policies shall contain a clause to the effect that as
between the workman and the insurer, that notice to and
knowledge by the employer of the occurrence of the injury
shall be deemed notice and knowledge on the part of the in-
surer; that jurisdiction of the employer for arbitration or other
purposes shall be jurisdiction of the insurer, and that the in-
surer will in all things be bound by and subject to the awards
rendered against such employer upon the risks so insured.
"Such policies must provide that the workman shall have
an equitable lien upon any amount which shall become owing
on account of such policy to the employer from the insurer and
in case of the legal incapacity or inability of the employer to
receive the said amount and pay it over to the workman or
dependents, the said insurer will pay the same direct to said
workman or dependents, thereby discharging all obligations
under the policy to the employer and all of the obligations of
the employer and insurer to the workman; but such policies
shall contain no provisions relieving the insurance company
from payment when the employer becomes insolvent or dis-
charged in bankruptcy or otherwise, during the period the
policy is in force, if the compensation remains owing.
" The insurer must be one authorized by law to conduct such
business in the State of Minnesota, and authority is hereby
granted to all insurance companies writing such insurance to
include in their policies in addition to the requirements now
provided by law the additional requirements, terms and con-
ditions in this section provided.
"It shall be lawful for the employer and the workman to
agree to carry the risks covered by Part II of this act in con-
junction with other and greater risks and providing other and
greater benefits such as additional compensation, accident,
sickness or old age insurance or benefits, and the fact that such
plan involved a contribution by the workman shall not pre-
vent its validity if the employer pays not less than the cost of
the insurance of the risks otherwise covered by Part II of this
act, and the workman gets the whole of the additional com-
pensation or benefits.
62
978 bradbtjky's workmen's compensation law
Nebraska
"If the employer shall insure to his employes the payment
of the compensations provided by Part II of this act, in a cor-
poration or association authorized to do business in the State
of Minnesota and approved by the insurance commissioner of
the State of Minnesota, and if the employer shall post a notice
or notices in a conspicuous place' or in conspicuous places about
his place of employment, stating that he is so insured and stat-
ing by whom insured, and if the employer shall further file
copy of such notice with the labor commissioner of the State
of Minnesota, then, and in such case, any suits or actions
brought by an injured employe" or his dependents shall be
brought directly against the insurer, and the employer or in-
sured shall be released from any further liability.
"Provided that in case of insolvency or bankruptcy of such
insurance company the employer shall not be released from
liability under the provisions of this act.
"The return of any execution upon any judgment of an em-
ploye" against any such insurance company unsatisfied in whole
or in part, shall be conclusive evidence of the insolvency of
such insurance company and in case of the adjudication of
bankruptcy or insolvency of any such insurance company by
any court of competent jurisdiction, proceedings may be
brought by the employe" against the employer in the first in-
stance or against , such employer and insurance company
jointly or severally or in any pending proceeding against any
insurance company, the employer may be joined at any time
after such adjudication."
NEBRASKA
"Part II, § 46. (Insurance.) An employer who is liable for
compensation as provided in this Act may insure the liability
to pay such compensation in any liability insurance company
or companies licensed to write such risks in the State of
Nebraska, or in any mutual insurance association authorized
under the laws of the State of Nebraska to assume such risks.
" § 47. (Insurance policies.) No policy of insurance against
liability under this Act shall be made unless the same shall
cover the entire liability of the employer thereunder and
INSURANCE OF COMPENSATION • 979
Nebraska
shall contain an agreement by the insurer that, in case the em-
ployer shall be or become insolvent, or in case an execution
upon a judgment for compensation is returned unsatisfied, an
employe of such employer or the dependents of a deceased
employe who shall be entitled to compensation under this Act
may enforce their claim or claims to compensation against the
insurer to the same extent that the employer could have en-
forced his claim against such insurer had he paid compensa-
tion. No suit shall be maintained for the collection of pre-
miums upon any such policy of insurance, unless such covenant
is contained in said policy. Such covenant shall be unaffected
by any default of the insured in the payment of premiums
and shall be construed to be a direct promise to such injured
employe and dependents, and shall be enforceable by action
brought in the name of such injured employe' or in the names
of such dependents. Every contract for the insurance of the
compensation herein provided for, or against liability there-
for, shall be deemed to be made subject to the provisions of
this Act, and provisions thereof inconsistent with this Act
shall be void. No company or association shall enter into
any such contract for insurance unless such insurance shall
have been approved by the State Insurance Commissioner as
provided by law.
" § 48. (Existing liability insurance contracts.) Nothing
herein shall affect any existing contract for employers' liability
insurance, or affect the organization of any mutual or other
insurance company, or any arrangement now existing be-
tween employers and employes, providing for the payment to
such employes, their families, dependents or representatives,
sick, accident or death benefits in addition to the compensa-
tion provided for by this Act; but liability for compensation
under this Act shall not be reduced or affected by any insur-
ance of the injured employe, or any contribution or other
benefit whatsoever, due to or received by the person entitled
to such compensation, and the person so entitled shall, irre-
spective of any insurance or other contract, have the right to
recover the same directly from the employer, and in addition
thereto, the right to enforce in his own name in the manner
provided in section 47 the liability of any insurer who may,
980 bradbury's workmen's compensation law
New York
in whole or in part, have insured the liability for such compen-
sation; Provided, however, that payment in whole or in part
of such compensation by either the employer, or the insurer,
as the case may be, shall, to the extent thereof, be a bar to
recovery against the other, of the amount so paid."
NEVADA
*
The only way in which an employer can adopt the com-
pensation principle in Nevada is by making contributions
to the State Insurance fund.
NEW HAMPSHIRE
Any employer to take advantage of the provisions of the
Act, must either satisfy the Commissioner of Labor that he
is of sufficient financial ability to comply with the Act, or
must file a bond "in such form and amount as the commis-
sioner may prescribe. " This bond may be enforced by the
Commissioner of Labor, "for the benefit of all persons to
whom such employer may become liable under this Act
in the same manner as probate bonds are enforced. " § 3.
NEW JERSEY
There is no provision in the New Jersey Act on this sub-
ject.
NEW YORK
Employers of workmen specified in § 2 of the Act are
brought within its terms by compulsion and are subject
to the compensation features of the Act whether they insure
or not. They are required, however, to insure and a penalty
is inflicted for failure to do so. This penalty is a double one.
A failure to insure gives the employ^ the right to elect,
after the accident, whether he will claim compensation or
common law damages, and if he claims damages the employer
is not permitted in such a suit to set up the ordinary common
INSURANCE OF COMPENSATION 981
New York
law defenses. §§11 and 52. Besides this, the employer
is liable to a penalty during his failure to insure of one dollar
for every employed § 50. The provisions of the Act relating
to insurance will be found below.
"§50. Security for payment of compensation. An em-
ployer shall secure compensation to his employed in one of the
following ways:
"1. By insuring and keeping insured the payment of such
compensation in the state fund, or
"2. By insuring and keeping insured the payment of such
compensation with any stock corporation or mutual associa-
tion authorized to transact the business of workmen's com-
pensation insurance in this State. If insurance be so effected
in such a corporation or mutual association the employer shall
forthwith file with the commission, in form prescribed by it,
a notice specifying the name of such insurance corporation or
mutual association together with a copy of the contract or
policy of insurance.
"3. By furnishing satisfactory proof to the commission of
his financial ability to pay such compensation for himself, in
which case the commission may, in its discretion, require the
deposit with the commission of securities of the kind prescribed
in section thirteen of the insurance law, in an amount to be
determined by the commission, to secure his liability to pay
the compensation provided in this chapter.
"If an employer fail to comply with this section, he shall be
liable to a penalty during which such failure continues an
amount equal to the pro rata premium which would have been
payable for insurance in the State fund for such period of
non-compliance, to be recovered in an action brought by the
commission.
"The commission may, in its discretion, for good cause
shown, remit any such penalty, provided the employer in
default secure compensation as provided in this section.
"§51. Posting of notice regarding compensation. Every
employer who has complied with section fifty of this chapter
shall post and maintain in a conspicuous place or places in and
about his place or places of business typewritten or printed
notices in form prescribed by the commission, stating the
fact that he has complied with all the rules and regulations of
982 Bradbury's workmen's compensation law
New York
the commission and that he has secured the payment of com-
pensation to his employes and their dependents in accordance
with the provisions of this chapter.
"§52. Effect of failure to secure compensation. Failure to
secure the payment of compensation shall have the effect of
enabling the injured employe' or his dependents to maintain
an action foe damages in the courts, as prescribed by section
eleven of this chapter.
" § 53. Release from all liability. An employer securing the
payment of compensation by contributing premiums to the
state fund shall thereby become relieved from all liability for
personal injuries or death sustained by his employes, and the
persons entitled to compensation under this chapter shall have
recourse therefor only to the state fund and not to the em-
ployer. An employer shall not otherwise be relieved from the
liability for compensation prescribed by this chapter except
by the payment thereof by himself or his insurance carrier.
"§ 54. The insurance contract. 1. Right of recourse to the
insurance carrier. Every policy of insurance covering the
liability of the employer for compensation issued by a stock
company or by a mutual association authorized to transact
workmen's compensation insurance in this state shall contain
a provision setting forth the right of the commission to enforce
in the name of the people of the State of New York for the
benefit of the person entitled to the compensation insured by
the policy either by filing a separate application or by making
the insurance carrier a party to the original application, the
liability of the insurance carrier in whole or in part for the
payment of such compensation; provided, however, that pay-
ment in whole or in part of such compensation by either the
employer or the insurance carrier shall to the extent thereof
be a bar to the recovery against the other of the amount so
paid.
"2. Knowledge and jurisdiction of the employer extended
to cover the insurance carrier. Every such policy shall contain
a provision that, as between the employe and the insurance
carrier, the notice to or knowledge of the occurrence of the
injury on the part of the employer shall be deemed notice or
knowledge, as the case may be, on the part of the insurance
INSURANCE OF COMPENSATION 983
Ohio
carrier; that jurisdiction of the employer shall, for the purpose
of this chapter, be jurisdiction of the insurance carrier and
that the insurance carrier shall in all things be bound by and
subject to the orders, findings, decisions or awards rendered
against the employer for the payment of compensation under
the provisions of this chapter.
"3. Insolvency of employer does not release the insurance
carrier. Every such policy shall contain a provision to the
effect that the insolvency or bankruptcy of the employer shall
not relieve the insurance carrier from the payment of com-
pensation for injuries or death sustained by an employe during
the life of such policy.
"4. Limitation of indemnity agreements. Every contract
or agreement of an employer the purpose of which is to in-
demnify him from loss or damage on account of the injury of
an employe by accidental means, or on account of the negli-
gence of such employer or his officer, agent or servant, shall be
absolutely void unless it shall also cover liability for the pay-
ment of the compensation provided for by this chapter.
"5. Cancellation of insurance contracts. No contract of
insurance issued by a stock company or mutual association
against liability arising under this chapter shall be cancelled
within the time limited in such contract for its expiration until
at least ten days after notice of intention to cancel such con-
tract, on a date specified in such notice, shall be filed in the
office of the commission and also served on the employer.
Such notice shall be served on the employer by delivering it
to him or by sending it by mail, by registered letter, addressed
to the employer at his or its last known place of residence;
provided that, if the employer be a partnership, then such
notice may be so given to any one of the partners, and if the
employer be a corporation, then the notice may be given to
any agent or officer of the corporation upon whom legal process
may be served."
OHIO
Employers may either go into the State Fund or, in cer-
tain cases, by approval of the Industrial Commission, may
984 bbadbuey's workmen's compensation law
Texas
carry their own insurance. If they decide to carry their
own insurance they must give a bond, but this is not an insur-
ance contract. They may insure if they so desire, in addi-
tion to giving the bond, but they are not required to do so.
OREGON
The only manner in which employers can adopt the com-
pensation principle is by making contributions to the State
insurance fund.
RHODE ISLAND
There is no provision in the Act on this subject.
TEXAS
The only manner in which the employer can adopt the
compensation principle is by becoming a "subscriber."
This means that he must take a policy in the Texas Em-
ployers' Insurance Association, which is created under the
Act (see Part III), or take a policy in a liability insurance
company authorized to do business in the State of Texas.
Part IV, § 2.
"Part IV, § 2. Any insurance company, which term shall
include mutual and reciprocal insurance companies lawfully
transacting a liability or accident business within this State,
shall have the same right to insure the liability to pay the
compensation, provided for by Part I of this Act, and when
such company issues a policy conditioned to pay such com-
pensation the holder of such policy shall be regarded as a sub-
scriber so far as applicable under this Act; and when such
company insures such payment of compensation it shall be
subject to the provisions of Parts I, II and IV of sec-
tions 10, 17 and 21 of Part III of this Act, and shall file with
the Commissioner of Banking and Insurance its classifica-
tion of premiums none of which shall take effect until the
Commissioner of Banking and Insurance has approved same
INSURANCE OF COMPENSATION 985"
West Virginia
as adequate to the risks to which they respectively apply and
not greater than charged by the association, and such company
may have and exercise all of the rights and powers, conferred
by this Act on the Association created hereby but such rights
and powers shall not be exercised by a mutual or reciprocal
organization unless such organization has at least fifty sub-
scribers, who have not less than two thousand employes."
" § 3. Any subscriber who has paid his annual premium as
provided in section 1, Part IV of this Act, but who ceases to
be an employer after three months and before the expiration
of one year, may by satisfactory proof of such fact made to
the Industrial Accident Board as herein created, be entitled
to a refund of such portion of the annual premium so paid by
him as the portion of the year in which he is not an employer
bears to the whole year; provided, that in no event shall more
than three-fourths of the annual premium by any subscriber
who claims the benefit of this refund, ever be refunded. "
WASHINGTON
The only method by which an employer can adopt the
compensation principle is by paying premiums into the
State insurance fund.
WEST VIRGINIA
The only way in which employers can adopt the com-
pensation principle is by paying premiums into the State
insurance fund.
" § 54. If deemed best by it the commission may insure in
any liability insurance company, or companies, authorized to
do business in West Virginia, all or any part or class of, or
one or more individual risks of, the liabilities of the workmen's
compensation fund for any year or series of years, and apply
so much as may be necessary of the premiums collected for
such year or years toward the payment of the premiums for
such insurance."
986 bkadbury's workmen's compensation law
Wisconsin
WISCONSIN
"§ 2394-24. 1. The whole claim for compensation for the
injury or death of any employe or any award or judgment,
thereon, shall be entitled to a preference over the unsecured
debts of the^employer hereafter contracted, but this section
shall not impair the lien of any judgment entered upon any
award.
" 2. An employer liable under this act to pay compensation
shall insure payment * of such compensation in some company
authorized to insure such liability in this state unless such em-
ployer shall be exempted from such insurance by the indus-
trial commission. An employer desiring to be exempt from in-
suring his liability for compensation shall make application to
the industrial commission showing his financial ability to pay
such compensation, whereupon the commission by written
order may make such exemption. The commission may from
time to time require further statement of financial ability of
such employer to pay compensation and may upon ten days'
notice in writing, revoke its order granting such exemption,
in which case such employer shall immediately insure his
liability.
"3. An employer who shall fail to comply with the provi-
sions of subsection 2 of sections 2394-24 shall be guilty of a
misdemeanor and upon conviction thereof shall forfeit twenty-
five dollars for each offense. Each day's failure shall be a sep-
arate offense. Upon complaint of the commission, such for-
feitures may be collected by the state in an action in debt.
"§2394-26. Nothing in sections 2394-3 to 2394-31, in-
clusive, shall affect the organization of any mutual or other in-
surance company, or any existing contract for insurance of
'The Wisconsin Industrial Commission holds that insurance policies
under this section must be for an unlimited amount, except in special
cases where a limited sum, in the case of small employers, is deemed suffi-
cient to cover the catastrophe hazard. In each case of a limited policy
there must be a special approval of the Commission. In such cases also
the employer is required to qualify, from a financial stand point, to carry
the excess over the limit of the policy.
INSURANCE OF COMPENSATION 987
Wisconsin
employers' liability, nor the right of the employer to insure in
mutual or other companies, in whole or in part, against such
liability, or against the liability for the compensation provided
for by sections 2394-3 to 2394-31, inclusive, or to provide by
mutual or other insurance, or by arrangement with his em-
ploye's, or otherwise, for the payment to such employes, their
families, dependents or representatives, of sick, accident or
death benefits in addition to the compensation provided for
by sections 2394-3 to 2394-31, inclusive. But liability for
compensation under sections 2394-3 to 2394-31, inclusive,
shall not be reduced or affected by any insurance, contribution
or other benefit whatsoever, due to or received by the person
entitled to such compensation, and the person so entitled shall,
irrespective of any insurance or other contract, have the right
to recover the same directly from the employer; and in addi-
tion thereto, the right to enforce in his own name, in the man-
ner provided in sections 2394-3 to 2394-31, inclusive, the lia-
bility of any insurance company which may, in whole or in
part, have insured the liability for such compensation; pro-
vided, however, that payment in whole or in part of such com-
pensation by either the employer or the insurance company,
shall, to the extent thereof, be a bar to recovery against the
other of the amount so paid, and provided, further, that as
between the employer and the insurance company, payment
by either directly to the employe^ or to the person entitled to
compensation, shall be subject to the conditions of the insur-
ance contract between them.
"§2394-27. 1. Every contract for the insurance of the
compensation herein provided for, or against liability therefor,
shall be deemed to be made subject to the "provisions of sec-
tions 2394-3 to 2394-31, inclusive, and provisions thereof in-
consistent with sections 2394-3 to 2394-31, inclusive, shall be
void. No company shall enter into any such contract of in-
surance unless such company shall have been approved by
the commissioner of insurance, as provided by law. For the
purposes of sections 2394-3 to 2394-31, inclusive, each em-
ploye shall constitute a separate risk within the meaning of
section 1898d of the statutes; provided, that at least five em-
ployers shall join in the organization of a mutual company
988 bradbury's workmen's compensation law
Wisconsin
under subdivision (5) of section 1897 and no such company
organized by employers shall be licensed or authorized to
effect such insurance unless such company shall have in force
or put in force simultaneously, insurance on at least one
thousand five hundred separate risks.
"2. The industrial commission, by itself or its employed,
may examine from time to time the books and records of any
liability insurance company insuring liability or compensation
for an employer in this state. Any such company that shall
refuse or fail to allow the industrial commission to examine its
books and records or to file the report required by subsection 3
of section 2394-27, shall have its license to do business in the
state revoked.
" 3. Every company transacting the business of compensa-
tion insurance, in addition to all other reports required by
law to be made, shall, on or before the first day of March in
each year, on blanks furnished for such purpose, make and
file with the industrial commission an annual statement of its
business and accident experience covering the year ending on
the preceding thirty-first day of December.
"4. Every insurance company, including any inter-insurer
or other insurer authorized to do business within this state and
insuring the liability of employers for compensation as herein
provided, shall file with the industrial commission its classi-
fications of risks and rates of premium relating thereto, and
any changes in or additions to such classifications or rates of
premium. No such company shall issue in this state any policy
insuring against such liability for compensation except upon
the classifications and rates of premiums so filed with the in-
dustrial commission. No such company shall discriminate
between insured having risks in the same class and degree of
hazard by the granting of any rebate or deduction in such rate
of premium, or by any change of classification for the purpose
of granting such deduction, or in any other manner. Any such
company or agent violating any provision of this section shall
be subject tb the penalties provided by section 1955o. Upon
the filing of any complaint with the commissioner of insurance
alleging any violation of this section, proceedings shall be
had thereon as provided for violations of section l955o.
INSUBANCE OF COMPENSATION 989
Wisconsin
" § 2394-28. Any employer against whom liability may
exist for compensation under sections 2394-3 to 2394-31,
inclusive, may, with the approval of the industrial commission,
be relieved therefrom by:
" (1) Depositing the present value of the total unpaid com-
pensation for which such liability exists, assuming interest at
three per cent per annum, with such trust company of this
state as shall be designated by the employe" (or by his depend-
ents, in case of his death, and such liability exists in their
favor), or in default of such designation by him (or them) after
ten days' notice in writing from the employer, with such trust
company of this state as shall be designated by the commis-
sion; or
" (2) By the purchase of an annuity, within the limitations
provided by law, in any insurance company granting annuities
and licensed in this state, which may be designated by the
employ^, or his dependents, or the commission, as provided in
subdivision (1) of section 2394-28."
CHAPTER XXIII
FEDERAL COMPENSATION ACT »
Page
ARTICLE A — Classified Decisions of Department under Act . 991
Page
1.
991
16
2.
Hazardous emploi-
ments
991
3.
Not hazardous employ-
17,
ments
992
4.
What is an arsenal
993
18.
5.
What is employment in
19.
A NAVY YARD
993
6.
Construction op forti-
fication work
993
20.
7.
Construction work in
THE RECLAMATION OF
21.
ARID LANDS
994
8.
What is a manufactur-
22.
ing ESTABLISHMENT. . .
994
9.
What is not a manufac-
turing ESTABLISHMENT
996
23.
10.
Employe of manufac-
TURING ESTABLISH-
24.
MENT WORKING ELSE-
25.
996
26.
11.
ArTISANS OR LABORERS
ONLY COVERED BY ACT .
997
27.
12.
Nature of work, not
28.
TITLE, FIXES STATUS OF
29.
997
13.
Who is an artisan or
998
30.
14.
Who is not an artisan
OR LABORER?
999
1001
31
15.
Piece workers
32.
Services and employ-
ments without the
ACT 1001
Independent contrac-
tor 1003
Employe of contractor 1003
"Injury shall continue
for more than fif-
teen days" 1003
Negligence or miscon-
duct 1004
Acts not negligent;
compensation granted 1010
Acts held to be negli-
gent; compensation
refused 1024
Contributing cause of
disability 1030
Injury, definition of. . 1031
Injury means disability 1031
Injuries before act
passed 1032
Ability to resume work 1032
Successive claims 1033
Computing year during
which compensation
is payable 1033
Wages as basis of com-
pensation 1034
Dependents 1035
Filing claim 1042
1 Applicable to certain government employes only.
990
FEDERAL COMPENSATION ACT 991
Hazardous employments
Page Page
33. Resignation of employe 35. Physician's ceetificate 1048
after injury 1046 36. administration 1048
34. Medical examination. 1047
ARTICLE B— Text of Federal Acts 1049
ARTICLE A— CLASSIFIED DECISIONS OF DEPARTMENT
UNDER ACT
1. Introduction.
This Act applies to certain employes of the Government,
specified in § 1 of the original Act of May 30, 1908, the appli-
cation of the Act being somewhat extended by the supple-
mented Acts of March 4, 1911, March 11, 1912 and July 27,
1912, all of which are printed in full in Article B. Many of
the questions raised under the Federal Act are peculiar to
that statute. They are discussed in the pages which follow.
The questions of what is an "injury" or an "accidental
injury" and when it arises out of the employment are im-
portant under all compensation Acts. Those questions there-
fore have been discussed in relation to the Federal Act in
Chapter VI where these subjects are treated generally.
2. Hazardous employments.
The following have been held to have been engaged in
hazardous employments:
A laborer with a gang at work clearing ground, using a
machete in cutting trees. Re Elias Pedez, Op. Sol. Dep. C. &
L., p. 135.
A machine printer operating a roller press. Re Allen
Rawlins, Id., p. 133.
A time inspector required to attend men occupied in
actual construction work of Isthmian Canal. Re E. H. Van
Sittert, Id., p. 132.
A plumber and tinner working on roofs and stacks. Re
Joseph Thennard, Id., p. 131.
A water boy serving water to men employed in actual
992 bradbtjry's workmen's compensation law
Not hazardous employments
construction work of Isthmian Canal. Re Adolphus Garsia,
Id., p. 130.
An ambulance teamster, in the Canal Zone. Re Samuel
Thompson, Id., p. 129.
A hospital orderly in attendance upon persons violently
insane. Re David Small, Id., p. 128.
A policeman employed in the Isthmian Canal Zone. Re
J. P. Golden, M., p. 122.
A machine attendant at the ice plant of the Roosevelt
Dam in the Reclamation Service. Re. C. H. Riggs, Id.,
p. 119.
A ditch rider, required to ride at night and discover and
attend to breaks in a canal. Re Frank Redburn, Id., p. 118.
3. Not hazardous employments.
The following have been held not to have been engaged in
hazardous employments:
A storeroom clerk. Re Dudley Inniss, Op. Sol. Dep. C. &.
L. p. 123.
A laborer employed in a mess hall under the Quarter-
master's Department in the Canal Zone. Re Pedro Traviso,
Id., p. 124.
A cook in a hotel kitchen. Re C. L. Reisinger, Id.,
p. 124.
A cook's helper, working in cooking quarters, in the Re-
clamation Service. Re J. F. Jones, Id., p. 120.
A janitor rendering services chiefly of a domestic char-
acter. Re Alexander Jarvis, Id., p. 137.
A scavenger occupied in collecting garbage and hauling
it away in carts. Re Henry Gill, Id., p. 134.
A cemetery laborer, wheeling stone in a barrow. Re John
Carney, Id., p. 136.
A laborer employed on a delivery wagon. Re Eloy Pala-
cios, Id., p. 126.
A scytheman in a grass-cutting gang. Re Jose Migeles,
Id., p. 125.
FEDERAL COMPENSATION ACT 993
Construction of fortification work
A water boy delivering water to grass-cutting gangs.
Re Stephen Price, Id., p. 127.
A telephone operator. Re William Etienne, Id., p. 126.
A hospital attendant performing the manual service usual
about a hospital. Re Altman Renwick, Id., p. 136.
4. What is an arsenal.
The Military Academy at West Point is not an arsenal.
Re Finlay Mackay, Op. Sol. Dep. C. & L., p. 106.
Carpenter work on an ice house for Fort Robinson, a
mile distant, is not work in an arsenal. Re J. P. Olson, Id.,
p. 107.
5. What is employment in a navy yard.
The Naval Academy at Annapolis, in accordance with the
organization and nomenclature of the Navy Department,
is a navy yard. Re R. L. Brown, Op. Sol. Dep. C. & L.,
p. 108. A naval experiment station at Annapolis is a navy
yard. Re F. S. Bullard, Id., p. 111. A gardener at a naval
training station is an employ^ of a navy yard. Re J. H.
Pangburn, Id., p. 109. A navy yard employe, although
injured while at work on a naval hospital, outside the yard,
is employed in a navy yard . Re Hinton Blount, Id., p. 108.
An employe at a naval station, also designated a coaling
depot, is employed in a navy yard. Re C. A. Burke, Id.,
p. 110.
A laundress at a naval home which is an asylum for dis-
abled naval officers, seamen and marines is not employed in
a navy yard. Re Clara Carey, Id., p. 110.
6. Construction of fortification work.
An artisan repairing cables in the underground electric
system at Fort Adams is engaged in the construction of
fortification work, which refers to work authorized by the
fortification appropriation acts. Re H. F. Buzby, Op. Sol.
Dep. G. & L., p. 112. A machinist working on gun carriages
63
994 bradbury's workmen's compensation law
What is a manufacturing establishment
at a seacoast fortification, although under the Ordnance
Department rather than the Engineer Department, is en-
gaged in the construction of fortification work. Re J. B.
Moore. Id., p. 114.
Fort Meade, S. D., although called a fort, is not a fortifica-
tion within the meaning of the Act. Re W. E. Burgess,
Op. Sol. Dep. C. & L., p. 116. Nor is Fort Totten. Re C. B.
Schenk, Id., p. 118.
A military post, called a fort, although unfortified, is
not a fortification. Work of maintenance and upkeep of a
fort, such as painting, is not work of construction. Re W.
E. Burgess, Id., p. 116; Re C. B. Schenk, Id., 118.
A laborer under the Army Quartermaster's Department,
hauling dirt in grading operations for new buildings, for
officers' quarters, is not engaged in the construction of forti-
fication work. Re James Ryan, Id., p. 116.
An engineer of an ice plant at the military post of Camp
Wilhelm, Tayabas, Philippine Islands, is not engaged in
construction work of fortification. Re C. E. Cale, Id., p. 113.
Carpenter work on an ice house for Fort Robinson, a mile
distant, is not done in the construction of fortification work,
as the construction of such work does not include the erec-
tion of an ice plant. Re J.P.Olson, Id., p. 112.
7. Construction work in the reclamation of arid lands.
The construction of a reservoir for storing water for irrigat-
ing lands on an Indian reservation is construction work
in the reclamation of arid lands. Re W. E. Arnold, Op. Sol.
Dep. C. & L., p. 120. So also is work in a quarry to obtain
rock for damming the Colorado River to protect a valley
and supply water for irrigation. Re J. W. Skill, Id., p. 121 .
8. What is a manufacturing establishment.
The following have been held to be manufacturing estab-
lishments within the meaning of the Federal Act:
The Government Printing Office. Re Edward Blaine,
FEDERAL COMPENSATION ACT 995
What is a manufacturing establishment
Op. Sol. Dep. C. & L., p. 89; letter of Comptroller Tracewell
to the Auditor for the State and other departments, March
18, 1909; Id., p. 625; 15 Comptroller's Decisions, p. 554.
The Bureau of Engraving and Printing. Re A. E. Clark,
Id., p. 92.
A carpenter and machine shop connected with an Indian
industrial school at which mission furniture is made. Re
F. A. P. Clarke, Id., p. 105.
The mechanical plant of the Smithsonian Institution, at
which steam power and electric light are generated, and cases,
cages and museum furniture are made. Re Albert Strong,
Id., p. 104.
The mail-bag repair shop of the Post Office Department
at which a variety of mail equipment is made. Re M. A.
Kennedy, Id., p. 103.
An electric light and power plant of an executive depart-
ment, at which ice is also made. Re Jacob Pyrah, Id., p. 101.
A blacksmith shop, at which bolts, frills and other articles
and tools used in irrigation work are made and repaired.
Re H. L. Fenton, Id., p. 99.
The Jeffersonville Depot, where a number of articles of
quartermaster's supplies are manufactured, and a painter,
engaged in painting one of the buildings, although not en-
gaged in portion of the manufacturing, is entitled to com-
pensation when injured, under the terms of the Federal Act.
Re George Worthington, Id., p. 98.
An Army Quartermaster's depot, at which clothing and
tents are made, and an employe1 of such an establishment
is entitled to compensation although not engaged in manufac-
turing operations. Re J. V. Nicholas, Id., p. 97. In the last-
mentioned case the employe" at the time of the injury was
engaged in loading a truck away from the depot at a wharf
on the Delaware River.
A saw mill at Fort Meade, at which lumber is sawed and
dressed and shingles are made. Re Leander Herron, Id., p. 96.
A lighthouse depot at which a material portion of the work
990 bradbury's workmen's compensation law
Employe1 of manufacturing establishment working elsewhere
consists in the manufacture and repair of materials, appli-
ances and vessels. Re G. W. Wygant, Id., p. 90; Re George
Bell, Id., p. 92.
9. What is not a manufacturing establishment. ,
The following have been held not to be manufacturing es-
tablishments within the meaning of the Federal Act:
An aqueduct and filtration plant, the function of which
is to collect, purify and deliver city water. Re J. W. Schlos-
ser, Op. Sol. Dep. C. & L., p. 105.
A laboratory used only for making tests of materials.
Re E. J. Meissner, Id., p. 103.
A naval observatory; nor is it an arsenal or navy yard.
Re John Lamkin, Id., p. 100.
A lighthouse tender, a vessel attached to a lighthouse
depot and used in transporting workmen and supplies, and
in the placement and upkeep of aids to navigation. Re
John Lambert, Id., p. 94; Re J. A. Veseth, Id., p. 94.
The local office of the Weather Bureau at Detroit, al-
though a printing press is there operated, Re William H.
McAllister, Id., p. 93.
A storekeeper-gauger of the Internal-Revenue Service
is not employed in a manufacturing establishment. Re
S. J. Roberts, Id., p. 99.
Hauling and trucking oats from car to dock by a laborer
in the Army Quartermaster's Department, is not work in
or in connection with a manufacturing establishment. Re
J. B. Gray, Id., p. 90. Nor is the driving of piles by an em-
ploye" of the Bureau of Fisheries at work about a lobster
pound work done in a manufacturing establishment. Re
A. H. Feltis, Id., p. 95.
10. Employe of manufacturing establishment working
elsewhere.
An employe1 of a manufacturing establishment is entitled
to compensation although at work elsewhere at the time
of injury. Re I. R. Melting, Op. Sol. Dep. C. & L., p. 101.
FEDERAL COMPENSATION ACT 997
Nature of work, not title, fixes status of employ^
. 11. Artisans or laborers only covered by Act.
Artisans or laborers only among employes of the United
States are covered by the Federal Statute. Re Joseph Little,
Op. Sol. Dep. C. & L., p. 66. In the last-mentioned case it
was urged that an employ^ of the Government who was
engaged in a hazardous employment was entitled to com-
pensation even though he was not an artisan or a laborer.
This contention, however, was not sustained, it being held
that only artisans or laborers employed in certain occupa-
tions which could be designated hazardous employments
come within the provisions of the Act.
12. Nature of work, not title, fixes status of employe.
The nature of the work performed by the employe* and
not the title given him in his appointment determines the
question of whether or not he comes within the terms of the
compensation Act, as an artisan or laborer. Re William G.
Crandall, Op. Sol. Dep. C. & L., p. 58. The fact that an
employe is designated as a messenger is not material, but
his status under the Federal Compensation Act will be deter-
mined by his actual duties. Re S. J. Mullins, Id., p. 40;
Albert Donaldson, Id., p. 41; re John Jackson, Id., p. 41.
An employ^ who is designated as a "general foreman"
but whose duties are in reality those of "foreman" in actual
charge of laborers at work, is a laborer within the meaning
of the Act, and is entitled to compensation. Re J. D. Black,
Id., p. 61.
A laborer is one who performs manual labor. Ho King, 14
Fed. R. 724. A laborer is one who labors with physical
powers and under the direction of another, at fixed wages.
Kansas City v. McDonald, 80 Mo. App. 444.
A sanitary inspector in the Canal Zone was injured while
"inspecting canal cut for mosquito larvae." The question of
whether or not he was a laborer was reserved and does not
seem to have been subsequently decided. Re I. W. Pickett,
Op. Sol. Dep. C. & L., p. 62.
998 bradbury's workmen's compensation law
Who is an artisan or laborer
13. Who is an artisan or laborer.
The following have been held to be artisans or laborers
within the meaning of the Federal Act:
A working foreman of laborers. Re Wm. L. Kline, Op.
Sol. Dep. C. & L., p. 75.
A rigger and diver. Re Fritzihoff Lagerholm, Id.,
p. 86. %
An acting inspector, normally a working foreman of
laborers. Re P. J. Keating, Id., p. 73.
A time inspector (under special circumstances). Re E. H.
Van Sittert, Id., p. 72.
An employe who was designated as an inspector, and whose
duty consisted of accompanying scows containing dredging
material to the dumping grounds at sea, it being necessary
for him to board the scows from the tug in the open sea.
Re M. T. J. Green, Id., p. 83.
An employe, designated an inspector, engaged in marking
and passing cross-ties, piling, and lumber, and without any
duty of supervision or superintendence. Re S. W. Baker,
Jr., Id., p. 82.
A rodman with a surveying party, also acting as chainman
and axman. Re E. R. Williams, Id., p. 70.
An employ^ designated on the pay rolls as a "survey-
man," who was engaged in assisting surveyors employed in
construction of river and harbor work, whose work consisted
of acting as transit man, levelman, chainman and axman.
Re C. E. Hott, Id., p. 71.
A storeroom clerk in the Canal Zone. Re Dudley Inniss,
Id., p. 63.
A packer in the Mare Island Navy Yard, who was required
to handle and arrange stock in the store room for the purpose
of putting all the articles of one kind together and to check
and list them. Re William G. Crandall, Id., p. 58.
A watchman on a Government dredge engaged in river
and harbor work. Re Sam. Peffer, Id., p. 53.
A policeman or watchman. Re J. P. Golden, Id., p. 50.
FEDERAL COMPENSATION ACT 999
Who is not an artisan or laborer
A shipkeeper in the Charlestown Navy Yard. Re B. G.
Pedrick, Id., p. 53.
A sailor working on a dredge and assisting in dredging
work. Re L. T. Zacias, Id., p. 44; Re Marcus Vulicas, Id.,
p. 45.
An employ^ appointed as a special laborer messenger
engaged in the work of a laborer or messenger, except when
detailed to clerical work. Re Frank Adler, Id., p. 45; s. c. p.
46; s. c. p. 47; s. c. p. 48; decision of the Comptroller of the
Treasury, p. 49.
A messenger, but who at the time of the injury "was driving
a delivery wagon of the Printing Office. Re Albert Donald-
son, Id., p. 41.
An employe designated a messenger who engaged in work
of the laboring class. Re S. J. Mullins, Id., p. 40. In the
last-mentioned case the employe was caring for a horse in the
stables connected with the arsenal, and the horse kicked him,
causing injuries which disabled him for a period of fifteen
days.
A boy fourteen years of age was employed as a messenger
in the construction and engineering department in the Canal
Zone and received $30 a month as wages. He operated a
telephone and worked as a messenger at a booth located
near a junction of a certain dump track of the Canal Com-
mission with the Panama Railroad line, and he reported to
the dispatcher trains passing that point and delivered to the
train crews such orders as were given him by the dispatcher
or yardmaster. He was killed in crossing the tracks. It was
held that he was an artisan or laborer within the meaning of
the Federal Compensation Act and that his mother was
entitled to compensation as a dependent. Re John Jackson,
Id., p. 41.
14. Who is not an artisan or laborer.
The following have been held not to be artisans or laborers
within the meaning of the Federal Act:
1000 Bradbury's workmen's compensation law
Who is not an artisan or laborer
A foreman or superintendent 1 who directs the work of
others and. whose work is mental and administrative or
executive. Re Joseph Little, Op. Sol. Dep. C. & L., p. 60.
A dock master, having the care of a dock and the supervi-
sion of the dock force. Re G. W. Trahey, Id., p. 87.
A laboratory assistant engaged in making tests of materials
in a chemical laboratory. Re William H. Ransom, Id., p. 85.
An assistant veterinarian, engaged in treating sick animals,
giving medicine and dressing wounds. Re J. R. Brown, Id.,
p. 85.
A surveyor. Re A. H. Shappard, Id., p. 80.
A transit man. Re J. M. Grant, Id., p. 76.
A pilot on a snag boat. Re J. D. Hays, Id., p. 68.
A master or pilot of a steamer used in river and harbor
work. Re* A. T. Jones, Id., p. 68.
A telegrapher and shipping clerk engaged in work of a
clerical nature. Re P. M. Whiteman, Id., p. 66.
A concrete inspector engaged in inspecting and directing
JThe cases generally decide that a superintendent is not a laborer
within the meaning of any law, although foremen have been held to be
laborers in several cases. Willamette Falls Transp. Co. v. Remick, 1 Oreg.
169; Short v. Medherry, 29 Hun, 39; Flaggstaff Silver Min. Co. v. CvRins,
104 U. S. 176; Capron v. Strout, 11 Nev. 304; Welch v. Ellis, 15 Can.,
L. T. 148.
That a superintendent is not a laborer was held in Mo. etc. R. Co. v.
Baker, 14 Kan. 567; Nelson v. Withrow, 14 Mo. App. 270; Boyle v. Min.
Co., 9 New Mex. 237; Blakey v. Blakey, 27 Mo. 39; Cole v. McNeil, 99 Ga.
250; Osborne v. Jackson, 11 Q. B. D. 619; Cocking v. Ward, 48 S. W. Rep.
287; Malcomson v. Wappoo Mills, 86 Fed. Rep. 192; Krauser v. Ruckel,
17 Hun, 463.
In a few cases it has been held that a superintendent is a laborer.
Pendergast v. Yandes, 124 Ind. 159.
In the last-mentioned case the decision was made under a statute which
preferred debts due to laborers, and it was held that a man employed by a
gas company to have the sole superintendence of digging the trenches and
laying the pipes, and with full authority to hire and discharge employes,
was a laborer.
An assistant superintendent has been held to be a laborer. Willamette
Falls Trans. Co. v. Remick, 1 Oreg. 169.
FEDERAL COMPENSATION ACT 1001
Services and employments without the act
the work of others. Re J. C. Cunningham, Id., p. 63; s. c. on
reconsideration, but reaching the same conclusion, p. 64.
A draftsman whose duties resemble those of a clerk or
artist. Re A. F. Reeves, Id., p. 54.
A ship draftsman whose duties are to design work and lay
the same out for the different tradesmen and inspect the
work when it is completed. Re H. L. Meeker, Id., p. 56.
A draftsman, who at the time of the injury was at work
in a photograph gallery, and at work with a large vertical
camera. (To steady the camera stand a pig of lead weighing
about 100 lbs. was used, and in adjusting this weight it
slipped from its position, falling about two feet and striking
the wrist of the claimant, causing severe strains and contu-
sions). Re W. G. Moore, Id., p. 56.
An employe whose occupation was given as "recorder"
and whose duties consisted of "entering in a note book notes
of survey work of the party to which he is assigned, reducing
soundings, and assisting occasionally in platting notes."
Re J. J. Corrigan, Jr., Id., p. 44.
A clerk engaged in office work. Re E. V. Alcee, Id., p. 42.
A clerk whose duties "consisted of visiting the various
sub-offices, work, and items of floating plant, inspecting,
counting, and checking all public property." Re T. G.
Prioleau, Id., p. 43.
A clerk acting as postmaster, who, while going for mail,
was struck by a train. Re G. E. La Mire, Id., p. 43.
15. Piece workers.
A plate printer in the Bureau of Engraving and Printing,
paid by the piece, is an employe of the United States and
not a mere contractor. Re A. E. Clark, Op. Sol. Dep. C. &
L., p. 34.
16. Services and employments without the Act.
The following services and employments have been held
to be without the operation of the Federal Act:
1002 bradbuby's workmen's compensation law
Services and employments without the Act
A carpenter working in improvements to the water-supply
system at West Point. Re Finlay Mackay, Op. Sol. Dep. C.
& L., p. 138.
A rural mail carrier. Re D. H. Morgan, Id., p. 139.
A lineman employed by the Signal Corps of the Army.
Be A. J. Lawrence, Id., p. 140.
An elevator%conductor in a local Federal building. Be
James Cassidy, Id., p. 142.
An electrician's helper employed in an executive depart-
ment at Washington. Be A. W. Fowler, Id., p. 142.
A stevedore employed in the Army transport service.
Be Michael Hogan, Id., p. 142.
A laborer employed in a local customhouse. Be N. C.
Washington, Id., p. 143.
A pilot in the service of the Quartermaster's Department
of the War Department. Be T. C. Pent, I'd., p. 143.
A painter employed by an Indian agent at an Indian
school. Be Bay Cadwalader, Id., p. 144.
A laborer employed in painting at an Army barracks.
Be J. A. Posey, Id., p. 145.
A launch operator in the Quartermaster's Department
of the War Department. Be Joseph Eaton, Id., p. 145.
A deck hand on a vessel attached to Governor's Island,
N. Y. Re A. J. Cowan, Id., p. 146.
A laborer employed at a National park. Be Albert Johnson
Id., p. 147.
A laborer employed in the construction of a power plant
in the Congressional buildings. Be G. H. Smith, Id., p. 148.
A powder man employed by the Government Road Com-
mission of Alaska. Be M. D. McCormick, Id., p. 148.
A laborer employed by the United States in the work
of raising the "Maine." Be Manuel Fernandez, Id., p. 149.
A seaman on a vessel of the Naval Auxiliary Service.
Be Sigurd Evenson, Id., p. 149.
A quartermaster on a lighthouse tender. (Law since
amended.) Re J. A. Veseth, Id., p. 147.
FEDERAL COMPENSATION ACT 1003
"Injury shall continue for more than fifteen days"
A seaman employed on a lighthouse tender. (Law since
amended.) Re 0. R. Hansen, Id., p. 141.
A lighthouse keeper. (Law since amended.) Re Samuel
Jewell, Id., p. 144.
An employ^ engaged in repairing a lighthouse beacon.
(Law since amended.) Re August Michel, Id., p. 139.
17. Independent contractor.1
The owners of a power boat chartered to the Government
and operated by the owner in its service is an independent
contractor and is not an employe1 of the United States.
Re John Hanson, Op. Sol. Dep. C. & L., p. 36.
18. Employe of contractor.
A workman employed by a Government contractor is not
employed by the Government and is not entitled to re-
ceive compensation from the Government under the Federal
Compensation Act. Re R. Lipscomb, Op. Sol. Dep. C. & L.,
p. 34.
19. " Injury shall continue for more than fifteen days."
Unless the incapacity lasts more than fifteen days com-
pensation cannot be allowed. Re W. S. Frates, Op. Sol. Dep.
C. & L., p. 416.
An injury continues for more than fifteen days if the
period of disability lasts for full fifteen days in addition to
the day of the injury; the day of injury cannot be disregarded
without extending the period limit to sixteen days. Re
Seymore Fogg, Id., p. 415.
When the days of incapacity, whether consecutive or
in broken periods, amount to more than fifteen out, counting
intervening Sundays and holidays, the law operates to grant
compensation. Re 0. P. Wells, Id., p. 421.
Where the accident causing the injury occurred at ten
1 See Chapter 5.
1004 beadbuky's workmen's compensation law
Negligence or misconduct
o'clock on the morning of December 15th, and the claimant
was able to resume work on the morning of December 31st,
it was held that the injury continued for more, than fifteen
days and that the claimant was entitled to compensation.
Re H. A. Thompson, Id., p. 418.
Where an injury happened at 3 p. m. on January 4th
and the claimant worked on the 5th but was unable to work
on the 6th and was away from work from January 6th to
January 20th, both days inclusive, it was held that the injury
continued for more than fifteen days within the meaning of
the Act, and that the claimant was entitled to compensation.
Re Elemo Osborne, Id., p. 419.
An employ^ who is so injured that he can never resume
work on which he was engaged at the time of the injury,
but who after fourteen days after incapacity, is able to re-
sume work by accepting an assignment to a character of
work with which his injury does not materially interfere, and
who does so resume work, may receive compensation for
the time lost even though it may not amount to more than
fifteen days. Re A. D. Davis, Id., p. 422.
An employ^ who is physically able to resume work within
fifteen days after the injury, but who is prevented from
actually resuming work until 18 days thereafter because of
holidays or lack of work, is not entitled to compensation.
Re Jack Avery, Id., p. 423; Re Alexander Jackson, Id., p. 424.
Where a workman is injured and pneumonia supervenes
which is not in any way connected with the injury, and by
reason thereof he is incapacitated more than fifteen days, he
is not entitled to compensation if the injury itself would not
have caused him to be incapacitated for fifteen days. Re
Joseph Broughton, Id., p. 434.
20. Negligence or misconduct.
Under the Federal Act compensation is denied when the
injury is caused by the "negligence or misconduct" of the
employ^. The rule of "contributing negligence" is not
FEDERAL COMPENSATION ACT 1005
Negligence or misconduct
applied in all its strictness by the Department under this
provision. That is, compensation is not denied for every
act which might, under the rules of the commonlaw, be
considered contributory negligence. A middle ground,
rather, has been chosen, which is somewhat similar to that
established under statutes denying compensation for in-
juries due to serious and wilful misconduct. It is held that
the negligence must be such as to show a voluntary and
unnecessary exposure to an obvious danger.
Negligence under the Act involves the idea of misconduct
or of voluntary and unnecessary exposure to obvious danger.
Mere inadvertence or error of judgment under circumstances
not suggesting danger is not negligence. Re J. C. Dieselman,
Op. Sol. Dep. C. & L., p. 314. In the last-mentioned case
the claimant was drilling foot-brackets for a truck and was
holding the brackets with his hands, instead of having strap-
ped them down. When the drill was going through the
stock it pulled the bracket around and caught his hand be-
tween the drill frame and the bracket, cutting deep gashes
in two fingers of his left hand. It was found that the custom
among machinists generally was to strap down such work
and all necessary appliances for doing this were available.
The strapping down was not a difficult matter and it would
have taken but little time. There was no definite rule re-
quiring the work to be strapped down while it was being
drilled, but it was necessary to do this when the cut to be
taken would be so heavy that the operator could not hold
the piece with his hands, or where any considerable accuracy
was required. In the case in question, the cut was not such
as to make it essential that the claimant use the strap. Com-
pensation was awarded on the principle stated. A somewhat
similar doctrine was announced in another case where the
accident was due to the failure of the employe to hold the
work, which was being drilled, with a wrench. Be C. B.
Ddvis, Id., p. 315.
Failure to exercise incessant vigilance in avoiding a known
1006 bradbuby's workmen's compensation law
Negligence or misconduct
danger is not such negligence as will cause compensation
to be refused under the Federal Act. ReA.L. Reiriburg, Id.,
p. 311. In the last-mentioned case the claimant, in passing
from the room in which he had been working, to the lunch
room to eat his lunch, stumbled over a waste pipe which
was across the passageway and just above the floor, and
fell, causing the injury which was the basis of the claim.
It was shown that the claimant knew of this pipe and had
passed over it many times, as also had many other employes,
but never before had he fallen over the pipe, and there was
no report that any one else had ever fallen over it. Two
employes of the Bureau, who were examined, stated that
they had several times stumbled over the pipe. Subse-
quently an electric light was placed in the passageway where
the pipe crossed. Under the circumstances, it was held that
the claimant was entitled to compensation.
No man can be assumed to be indifferent to impending and
apparent danger; it is fair to assume that he will endeavor
to avoid it. If he is slower to think or slower to act than
another this is not negligence. Re William E. McFadden,
Id., p. 309. In the last-mentioned case the claimant was a
farrier in the blacksmith shop at the Watertown Arsenal.
He was assisting in cutting a heavy iron plate. He was
holding one side of the plate and a helper was holding the
other side, while a third person was cutting it. As the cut
was finished, the helper dropped the part he was holding,
and it fell on the claimant's foot, causing the injury. The"*
claimant's superior officer expressed the opinion that the
accident was due to the negligence of the injured employe
as he had ample time to get out of the way. The Solicitor,
however, said: "I think it is fair to assume that the claimant
endeavored to get out of the way of the falling iron as best
he could. If he was slower to think or slower to act than
another man would have been under the same circumstances,
I do not think this constitutes such negligence as should de-
prive him of the benefits of the act."
FEDERAL COMPENSATION ACT 1007
Negligence or misconduct
Failure to avoid a known danger by a laborer engrossed
in his work, who momentarily forgets it, is not negligence,
as will cause compensation to be refused. Re H. S. Glass,
Id., p. 306. In the last-mentioned case the workman was
engaged in constructing a cabin on the hull of a new dredge.
He was standing on the deck and with a two by four inch
piece of timber, knocking off a plate or stringer nailed to
the top of the joists of the cabin, when he stepped back,
looking up, and fell into an open, hatchway. The solicitor
cited the following cases as sustaining the decision. Kane v.
Northern Central Railway, 128 U. S. 91; Snow v. Housatonic
R. Co., 8 Allen (Mass.) 441.
Artisans are not necessarily negligent because as they
become proficient and dexterous they naturally make use of
movements more or less mechanical or involuntary, which
might be regarded as negligent if it were reasonable to
expect men never to relax their vigilance and to be constantly
on guard. Re H. L. Robinson, Op. Sol. Dep. C. & L., p. 302.
In the last-mentioned case the claimant was a machinist
employed in the Naval gun factory at Washington. He
was engaged in filing a heavy piece of steel which he had
fixed in the grip of a vise. It was necessary to change the
position by releasing the grip of the vise adjusting the piece
of steel, and again tightening the grip of the vise. The
claimant was engaged in changing the position of the piece
of steel on which he was working, and it accidently slipped,
struck against his wrist, and inflicted a severe cut. The
Superintendent of the gun factory stated that the accident
was due to the workman's negligence in not properly se-
curing the work to prevent slipping between the jaws of
the vise. The Solicitor made the ruling above stated.
A similar ruling was made in a case where a laborer was
employed at a press which was operated by means of a
pedal. The employe claimed that the machine "repeated. "
Those in charge of the shop contended that the machine
could not repeat. The Solicitor in deciding that the man
1008 bradbury's workmen's compensation law
Negligence or misconduct
was entitled to compensation stated: "It is not reasonable
to expect workmen never to relax their vigilance and to
be constantly on guard. It is probably true that the ac-
cident was the result of the employe's failure to remove his
feet from the pedal in time to stop the motion of the machine
before the die descended and crushed his finger, but it
is highly probable, too, that the failure to remove his foot
in time was due, not to any negligence on his part, but to
his having lapsed into the mechanical and involuntary
motion that might reasonably be expected under the cir-
cumstances." Re R. F. Thompson, Id., p. 303.
A laborer in a sudden emergency and seemingly called
upon to act at once is not negligent, merely because the
action taken leads to an injury which would not have oc-
curred otherwise. Re G. D. Lyte, Id., p. 310. In the last-
mentioned case the decedent was on a labor train riding
from his place of employment to his dinner, when one car
of the train was derailed and he jumped, falling under the,
cars, and being killed. The report of the superior officer
stated that the accident was due to the negligence of the
deceased employe1 as he should have remained on the train
as other passengers who were not injured did. The solicitor,
however, held that the accident was not due to negligence
or misconduct on the part of the deceased employe, and that
compensation should be awarded. The solicitor cited the
cases of Union Pacific Ry. Co. v. McDonald, 152 U. S. 262,
and Thurber v. Harlem Bridge, etc., Rd., 60 N. Y. 326; The
Dunham Towing & Wrecking Co. v. Emily Dandelin, Admx.,
143 111. 409; Gibbons v. Wilkesbarre, etc., St. Ry. Co., 155 Pa.
St. 279, as authorities for the principle that persons who in
sudden emergencies are called upon to act under peculiar
circumstances are not held to the same degree of caution as
in other cases.
The violation of a positive rule of instruction directly
resulting in injury amounts to negligence or misconduct; but
the rule or regulation must be a reasonable one. It must
FEDERAL COMPENSATION ACT 1009
Negligence or misconduct
have been known to the employe1 and it must have been
enforced. The disregarding of a rule which has become
a dead letter is not necessarily negligence. ReC.A. Weigand,
Op. Sol. Dep. C. &. L., p. 317.
It is unreasonable to deny compensation merely because
the physical condition of the injured person is such as to
predispose him to some ailment which is also a natural con-
comitant of the injury received. Re F. T. Osgood, Id.,
p. 304. In the last-mentioned case the claimant, in the
regular course of his employment, used an automatic screw
driver so constantly as to cause a blister in the palm of his
right hand, which blister he opened without consulting proper
medical authority. Subsequently septic poisoning developed
and his hand became swollen so as to render him incapaci-
tated for work. The reporting officer stated that the in-
jury was due to the negligence or misconduct on the part of
the employe because he himself opened the blister without
consulting a physician. It was reported also that the claim-
ant had previously been afflicted with blood poisoning. The
Solicitor in holding that the man was entitled to compensa-
tion said: "It does not seem reasonable or just to deny
compensation merely because the physical condition of
the injured person is such as to predispose him to some ail-
ment which is also a natural concomitant of the injury
received. Such a predisposition on his part would be harm-
less if no injury supervened to inaugurate the malady.
A man's predisposition to disease is like his size and weight
and sight and hearing, and many other physical character-
istics, which may have some connection with the cause or
nature of his disability, but which cannot be held to affect
his right to compensation." The Solicitor referred to a
number of German cases in which compensation had been
awarded under similar circumstances. He thus stated that
in one case where a mason, working on sandstone, received
an injury resulting in blood poison, which was aggravated
by his continuing his employment, and death ensued, com-
64
1010 bradbury's workmen's compensation law
Acts not negligent; compensation granted
pensation was granted. In another case where a stone
mason injured his finger during employment, and blood
poisoning set in in an unknown way, causing death, com-
pensation was granted. In still another case a brick-layer
injured his finger in the course of his employment and
afterwards the material upon which he was working getting
into the wound causing blood poisoning, compensation was
granted. ♦
A laborer called upon to perform a task out of his regular
line of work is not chargeable with negligence because he
adopts, through negligence, a method dangerous in fact, but
not obviously dangerous to an inexperienced man. Re Robert
Turner, Id., p. 319. In the last-mentioned case a ma-
chinist was instructed to do some blasting with black powder.
He advised his superior officer that no black powder was to
be procured, but that there was a supply of dynamite. The
employ^ also expressed the opinion that the work could be
done with dynamite and also stated that he was somewhat
familiar with the use of dynamite. Two blasts were set off
successfully, without damage, and while preparing another
blast in a manner which was declared to be improper, there
was a premature explosion and the man was killed. It was
held that under the circumstances compensation should be
awarded.
21. Acts not negligent; compensation granted.
The claimant was employed as a powder man, and while
engaged in loading a hole with powder an explosion occurred,
whereby the claimant lost his left eye and his right hand as
a result thereof. It was contended that the claimant was
negligent in remaining in the vicinity of the hole too long,
or that the fuses which he used were too short. Compensa-
tion was awarded. Re Joe Davis, Op. Sol. Dep. C. & L.,
p. 394.
The fact that a man in handling an elevator does so
while he is standing on the floor outside of the elevator
FEDEEAL COMPENSATION ACT 1011
Acts not negligent; compensation granted
rather than getting into the same, and the elevator in de-
scending strikes his foot and crushes it, is not necessarily
to be charged with such negligence as will prevent him from
claiming compensation. Re William G. Crandall, Id., p. 58.
A rock was found by a laborer containing a charge of
powder that had not been exploded. He called to claimant
who was known as a powder man to come and see the rock.
The claimant and a number of other laborers went there
and while looking at the same another laborer who had gone
up with the others picked up a hammer and began to strike
the rock. Upon his striking it the second time all of the
men ran away except himself and the claimant, and upon
his striking it again it exploded, killing the laborer who was
striking, and injuring the claimant. It was contended by
the overseer that the claimant was negligent for the reason
that he had authority to stop anyone in doing what the
laborer was doing and that the claimant should have drawn
the charge or fired the same. The claimant contended that
he, on trying to prevent the laborer from striking the rock,
was told by the laborer that there was no danger and he
would just take off a small piece. Just as he was trying to
induce the laborer to cease striking the explosion occurred.
It was held that under the circumstances he was entitled to
compensation. Re Solomon Kahalewai, Id., p. 411.
The claimant was working as a powder man, and while
cleaning a hole, after it became clogged, with a metal bar
or drill, he caused the powder to explode and he was injured.
It appeared that the use of such a bar in tamping dynamite
was a matter of common occurrence or usage and while
more dangerous than the use of a wooden bar, it was held
that the use of the metal bar was not such negligence as
precluded the recovery of compensation. Re Frank Schultz,
Id., p. 409.
The claimant, a drill helper, was at his drill when a gang
of Spanish laborers, about to fire a blast, shouted a warning.
The mine to be fired was on the other side of the hill and
1012 bkadbttky's workmen's compensation law
Acts not negligent; compensation granted
about three or four hundred feet from the claimant's drill.
The claimant could not see the Spanish laborers, but he
heard the warning shouted and took shelter under a large
boulder about twenty feet from the drill. Others belonging
to this gang took shelter under another large boulder about
100 feet from the drill. He was at a safe distance if the
blast had been a small one, but he had no means of knowing
whether it was large or small. When the place was fired a
large rock loosened from the side of the hill, rolled down
over the boulder under which the claimant had taken shelter
and injured him. The Division engineer contended that the
claimant's injury was due to his own carelessness in not
getting out of the way and going as far as the other work-
men had gone, when warned of the blast. It was held,
however, in granting compensation that the claimant had
not been guilty of negligence or an unreasonable exercise
of judgment in selecting the particular place of a shelter. Re
Edward Clark, Id., p. 371.
The claimant was drilling a piece of iron held in a jig
when the trill caught, causing the jig to revolve. Instead
of shifting the belt by means of the belt shifter with his foot,
he tried to throw it off with his hand. His right hand was
caught and held between the pulley, belt shifter and belt,
the belt burning his hand between the thumb and forefinger.
The solicitor in holding that compensation should be awarded
said: "Apparently the claimant was engrossed in his work,
and in his anxiety to save the drill or jig from damage he
hurriedly undertook to stop the machine by shifting the
belt with his hand. Under the exigencies of the moment,
he evidently did what first came to his mind. This would
seem to be such an accident as might happen to any ordi-
narily careful machinist in the usual course of his employ-
ment rather than the result of misconduct or negligence
within the meaning of the act." Re C. H. Hadlock, Id.,
p. 408.
The claimant was a boatman employed in connection with
FEDERAL COMPENSATION ACT 1013
Acts not negligent; compensation granted
river and harbor service work at Boston Harbor. While
standing on the wharf of the engineer's depot at East Boston,
casting off a line or rope holding a steamer to the wharf, and
in the act of dropping the rope to the deck of the steamer,
the man tripped on the cap log of the wharf and fell to the
deck of the steamer, striking his side on the deck and on
an iron cleat. The tide was very low and the deck of the
steamer was some fifteen feet below the floor of the wharf.
The right leg was badly crushed. He was taken to the
hospital and three days later developed marked delirium.
Later he became quiet but remained irrational. Still later
he became unconscious and could not be aroused. He failed
to respond to stimulation and died about seventeen days
after the injury. There was some question as to whether
or not the man was under the influence of alcohol at the time
of the injury. The solicitor held, however, that there was
not sufficient evidence of intoxication to amount to negli-
gence and therefore compensation was awarded. Re E. J.
Flaherty, Id., p. 403. On the question of intoxication the
solicitor cited the following cases: Wordsworth v. Dunnam,
98 Ala., 610; Sapp v. State, 116 Ga. 182; Johnson v. Rail-
road Co., 53 Am. St. Rep. 39; Bageard v. Consolidated Trac-
tion Co., 64 N. J. L. 316; 45 Atl. Rep. 620; 49 L. R. A. 424;
81 Am. St. Rep. 498; Houston, etc. Ry. Co. v. Reason, 61 Tex.
613; Ward v. Chicago, St. P., M. & 0. Ry. Co., 85 Wise. 601.
A man working on the hull of a ship was struck in the eye
by a chip from a rivet. It appeared that there was a rule in
force that all employes whose work warranted it, were re-
quired to wear goggles, which were furnished by the Govern-
ment and served out on tool checks. There was also a notice
that if an employ^ received an injury through neglect to
wear eye protectors he might jeopardize the validity of his
claim for disability compensation. It was admitted that the
claimant was not wearing goggles at the time of the injury.
The solicitor in granting compensation said that he was
of the opinion that although a notice had been issued re-
1014 bradbtjky's workmen's compensation law
Acts not negligent; compensation granted
quiring the wearing of goggles that no sufficient effort had
been made to enforce it, and therefore, the man had not been
guilty of such negligence or misconduct as precluded the
granting of compensation." Re D. 0. Morton, Op. Sol. Dep.
C. & L., p. 385. The solicitor followed the rule laid down
in the case of Edison Alleyne (not reported) in which case a
rule had been promulgated forbidding employes to ride on
top of work cars and it appeared that this rule had not always
been enforced. In reaching the conclusion in the Alleyne
case the solicitor said: "If the rule is a reasonable one and a
persistent effort is made to enforce it, even though that
effort may not always be successful, the employ^ who violates
it is guilty of negligence or misconduct within the meaning
of the compensation act. But the mere announcement of a
rule, followed by a merely perfunctory effort to enforce it,
is not sufficient."
The claimant, with other laborers, was skidding heavy
timbers from the pile to the planer. All the laborers had been
warned to stay behind the timber, but this claimant, in
attempting to expedite the work, got in front of the timber
to start it, when the skid slipped and the timber fell on his
leg. It was held that under the circumstances the claimant
had not been guilty of negligence or misconduct and com-
pensation was awarded. Re Andrew Nelson, Id., p. 383.
The foreman ordered a gang of workmen to carry tools
to a certain place to prepare to drill. A long dirt train was
across the path and the foreman ordered the men to throw
the tools over the train and for the men to climb over.
Some of the men were climbing over and it appeared, al-
though the testimony on that point was conflicting, that
the claimant and others climbed under. The train started
and the claimant was injured. It was held that under the
circumstances he had not been guilty of negligence or mis-
conduct in attempting to cross beneath the cars and that
he was therefore entitled to compensation. Re Robert
George, Id., p. 382.
FEDERAL COMPENSATION ACT 1015
Acts not negligent; compensation granted
The claimant was engaged in piling lumber in one of the
cuts of the Isthmian Canal. When the whistle blew at five
o'clock, he quit work and got on the front end of a locomotive
which was going to the place where he lived. The men had
been repeatedly told not to get on the engines. After the
train started the conductor of the train threw a piece of
coal at the workman and knocked off his hat. The conductor
then came forward and either pushed the man or compelled
him to get off the engine, while it was in motion. He fell
down in front of the engine, was run over and both feet and
one hand were cut off, and other injuries were received. It
was held that while the claimant had no business to be where
he was, the conductor was guilty of a much graver fault
and the conductor's fault was the direct cause of the injury.
Under the circumstances, it was held that the accident was
due not to the claimant's negligence, but to the conductor's
fault, and compensation was therefore awarded. Re David
Clarke, Id., p. 381.
The workman was running acid out of a tank into a mixer,
and after getting a sufficient amount attempted to close a
plug cock on the pipe with a wrench and broke the pipe off
close to the tank, thereby letting the acid flow out on him.
There was pressure of air on the tank at the time. The
reporting officer stated that the accident was due to the
negligence of the employe in that the pressure of air should
have been relieved from the tank before closing the valve on
the acid pipe. It also appeared that the manipulation of
acid valves, when there was air pressure on the tank, was
forbidden. It appeared that the deceased employe was a
careful workman. The solicitor held that under the circum-
stances the employe1 had been guilty of an error of judg-
ment rather than of negligence or misconduct and therefore
awarded compensation. Re William W. Fraser, Id., p. 377.
While the deceased employ^ was working with a pick
near a well, the foreman of the work ordered him, as well as
his companions, to discontinue work with picks at that place,
1016 bradbuky's workmen's compensation law
Acts not negligent; compensation granted
but notwithstanding such order he continued to work with
the pick at the bottom of the well, until it gave way and he
was caught by falling stone and crushed to death. It
appeared that there was a possibility that the deceased,
when the warning was given by the foreman, did not under-
stand the Spanish language in which the order was given,
and as the workman was deceased and could not give his
own story of the affair, compensation was awarded. Re
Bonifacio Panganiban, Id., p. 379.
Claimant at the time of the accident was operating a
pocket machine, which is a heavy horizontal machine used
in forming the primer pocket in the base of the cartridge
case. The operator at this machine placed the cases in a
trough by hand. The punch and die for pocketing the case
operated at the bottom of this trough. The machine was
provided with a loose pulley, onto which the belt was shifted
when it was desired to stop the machine, and a hand brake
was supplied which was used in bringing the machine to a
quick stop. A broken cartridge case got jammed in the
bottom of the feed trough and the operator shifted the belt
over to the loose pulley and applied the brake until the
machine was stopped. It required both hands to disengage
the broken case, and while he was doing this it was necessary
to release the brake. When this was done the machine
started up, the punch catching the operator's finger and
driving it into the die. It appeared that if the belt had been
properly shifted the machine would not have started up on
releasing the brake. The claimant stated that the belt was
evidently improperly shifted so that when he released the
brake he used both hands to remove the obstruction, and
machinery started up and his finger was caught and injured.
It was held in granting compensation that this was a case of
slight negligence; that the workman was engrossed in his
work and perhaps was not using all the intelligence a more
skilled mechanic might have been expected to bring to bear
upon the operation; that the accident might easily have
FEDERAL COMPENSATION ACT 1017
Acts not negligent; compensation granted
happened to any ordinary man and it was not reasonable
to expect workmen never to relax their vigilance and con-
stantly be on their guard. Re T. F. Tiernan, Id., p. 367.
While .the claimant was engaged in tightening up a chuck
with a wrench, the wrench slipped and he fell backward across
an open box, sustaining a fracture of two ribs. It was held
that he was entitled to compensation. Re. C. H. Hadlock,
Id., p. 366.
The claimant was a carpenter foreman employed in the
Canal Zone and while engaged in adjusting a shearing
machine a helper allowed a blade to fall on the claimant's
finger, cutting off the index finger of the right hand. The
reporting officer stated that the claimant was solely to blame
for placing his finger in such a dangerous position as under
the blade of a shearing machine while adjusting the same.
The solicitor, however, decided that under such circum-
stances it would be setting too high a standard of care to say
that the claimant was guilty of negligence sufficient to bar
his right to compensation. Re J. H. Retry, Id., p. 366.
Claimant was helping to place a trolley pole in position
in the Philadelphia Navy Yard. He was one of four men
who, each with a pike or long pole, was steadying a trolley
pole which was placed in position. The pole appearing to
fall over toward him, and being compelled to quickly change
the position of his pike to steady the pole, he put the handle
of his pike against the ground, which was newly made and
soft and gave way, thus throwing claimant off his balance
so that he tumbled off the embankment and was injured.
It was held that he was entitled to compensation. Re J. J.
Burns, Id.; p. 364.
The claimant was chambering a six inch gun and had
occasion to place a slope bit in the boring car. The bit
weighed about 150 pounds, and in lifting and adjusting it he
sprained his back so as to disable him for 22 days. It ap-
peared that it was the custom of the men to handle such bits
without the use of a crane and that although a crane was
1018 bradbury's workmen's compensation law
Acts not negligent; compensation granted
available its use would have involved loss of time and the
rule requiring the use of cranes was not sufficiently definite
to put the claimant under obligation to use one in the present
instance, and that the rule was practically ignored by the
men in their work. It was held that he was entitled to com-
pensation as he had not been guilty of negligence or miscon-
duct. Re W. B. Thomson, Id., pp. 360, 361.
A man, on his first day's employment in the department,
was making a splice of live cables, when, as a result of a
short circuit, he was burned. It appeared that the claimant
was cautioned by the foreman that the employes were
charged to exercise the necessary precaution and that the
claimant did not take the necessary precaution to insu-
late the cables, which he could easily have done, and the
short circuit was caused by the careless handling of tools.
The solicitor first decided that compensation should be
refused because of negligence, but on reconsideration owing
to further evidence by which it appeared that this was an
accident which might happen to any man no matter how
careful, the solicitor held that compensation should be
awarded. Re Harry Block, Id., pp. 333, 334.
An injury to a printer's back while working a hand press
was held to be not due to negligence merely because the
printer had continued working the press, although it worked
hard and required extra exercise. Re W. P. Hutton, Id.,
p. 321.
The claimant, a laborer in the Frankford Arsenal, while
being carried up on an elevator, allowed his right foot to
project beyond the elevator floor and it was caught between
the floor of the elevator and the floor of the building and
badly crushed. The case was considered in two different
opinions and it was finally determined that the injury was
purely accidental, and that the claimant was not sufficiently
negligent to bar him from the Federal Act. Re William
Smith, Id., p. 307; s. c. 309.
The claimant, in going to dinner from his work, was com-
FEDERAL COMPENSATION ACT 1019
Acts not negligent; compensation granted
pclled to cross a railroad bridge. While on the bridge a
worktrain approached from behind. Not having time to
get off the bridge before the train would pass, he lay on the
bridge between the rails. The train in passing crushed the
big toe of his left foot. The case was considered in three
different opinions by the solicitor of the department. In
the first two he was inclined to deny compensation, but in the
third new evidence was submitted by which it appeared that
the claimant was not struck from behind but was struck by
a train which was apparently running wild and it was coming
toward him at a speed of about forty miles an hour, and that
the claimant was crossing the bridge to board the train,
which generally stopped on the other side and did not usually
cross the bridge at all, except to take on its passengers. It
was held therefore, that he was entitled to compensation.
Re Z. M. Crooks, Id., pp. 362, 363, 364.
Where signs had been posted up warning laborers not
to cross over the tracks, but to use the bridge erected for that
purpose, but it appeared that laborers had paid absolutely
no attention to these signs, and that aside from placing these
signs up nothing had been done to enforce the rule, it was
held that where a laborer was injured by crossing these
tracks, he was entitled to compensation and that under the
circumstances he could not be charged with negligence or
misconduct. Re Placido Carrero, Id., p. 402.
A laborer working with a gang near an inclined track began
to cross the track to escape an approaching engine, and was
struck by an engine and killed. The evidence was conflicting
and it was uncertain what reason impelled the laborer to
cross the track. The solicitor held under the circumstances
that compensation should be awarded. Re Antonio Martinez,
Id., p. 412.
The claimant while seated on a flat car loaded with lumber
and adjusting a stake in a stake pocket of the car, allowed
his legs to hang over the side of the car. In passing a plat-
form at the lumber yard his foot was caught between the car
1020 BRADBUKY S WORKMEN'S COMPENSATION LAW
Acts not negligent; compensation granted
and a loose timber which was projecting over the edge of the
platform. In view of the fact that the claimant was at work
when hurt, and his attention was directed to that work so
that he did not observe the projection of the timber, it was
held that he had not been guilty of negligence and compen-
sation was awarded. Re Jose Herrera, Id., p. 370.
Two dirt trains were using the same dump. An empty
train had left the dump and was turning the curve where the
switch was located, intending to pass the switch and back
into the siding to allow the loaded dirt train hauled by an
engine on which the deceased was working as engineer, to
go on the dump. Both trains were on the curve and in sight
of each other, but running too fast to stop, resulting in a
collision, in which one engineer lost his life. The Coroner's
jury convened to inquire into the cause of the death and
found the following verdict: "That the deceased came to
his death through unavoidable accident, due to his own
fault, and that no blame can be placed on any employe or
employer." The division engineer reported that the acci-
dent was not due to the negligence of the deceased and re-
commended payment. The Solicitor commented on the in-
consistency of the Coroner's verdict and decided that under
the circumstances compensation should be paid to the
dependents of the deceased engineer. Re J. R. Morris, Id.,
p. 376.
The claimant belonged to the crew engaged on a dirt
unloader. As the unloader was passing the yard office on the
way to a water tank he attempted to alight for the purpose of
getting a drink of water. The unloader was moving at the
rate of about four or five miles an hour at the time, and as he
stepped down his foot got caught in some way, causing him
to fall and injure himself. It appeared that unloader crews
were accustomed to get off at this particular place to get
drinking water, and that four or five miles an hour was not
considered an unsafe speed while getting off. It appeared
that there was no drinking water on board the unloader.
FEDERAL COMPENSATION ACT . 1021
Acts not negligent; compensation granted
It appeared that the claimant had not violated any rule and
that he did what an ordinarily prudent man would do under
the circumstances and that therefore compensation should
be awarded. Re Canu Guiseppe, Id., p. 380.
Car cleaners on electric cars had been in the habit of
waiting until the foreman turned off the current and called
out "All right, go ahead" before starting to work. On this
particular occasion the car had been standing some time
after arriving at the place where it was to be cleaned and
several of the cleaners started work. While doing so one of
the cleaners received a shock from an over-heated wire,
which knocked him off the car and he fell on the third rail
and was killed. It was held that under the peculiar circum-
stances of the case he had not been guilty of negligence
within the meaning of the act and therefore compensation
was awarded. Re Francis Right, Id., p. 389.
Where a conductor was hanging on to one of the cars of a
construction train moving along slowly and it appeared that
there was no caboose on the train, and the conductor was in
the place in question "in accordance with the usual practice"
and while in such condition he was injured, it was held that
he was entitled to compensation under the circumstances, as
the injury was not due to his negligence or misconduct.
Re H. C. Strayer, Id., p. 359.
Claimant was riding on a work train on his way to do a
repair job when he signalled to the engineer to slow up.
While the train was still moving at a good rate of speed he
stepped off and fell in such a way as to get his right arm
crushed under one of the wheels of the train. It was held
that the accident arose out of and in the course of the man's
employment. It was further held that he had not been
guilty of negligence for the reason that it appeared that men
in the kind of work in which the claimant was engaged, did
not wait for cars to stop before they got on or off, and there-
fore he was not guilty of such negligence as to bar a claim
for compensation, Re J. L. Du Puy, Id., p. 361.
1022 bradbtjry's workmen's compensation law
Acts not negligent; compensation granted
The claimant was attempting to board a labor train to go
to his work at a place which was not a regular stopping place
for labor trains, but where it had become the custom for a
number of men to take the train, and for that reason it
usually stopped or slowed down to take down the men. On
this particular day the train slowed down somewhat but did
not stop and the claimant in attempting to get on the train
lost his hold and fell in such a way that one foot was am-
putated and the other badly lacerated. The solicitor
applied the rule that the negligence contemplated by the
statute involved the idea of misconduct or voluntary or
unnecessary exposure to an obvious danger. Re Francis
Williams, Id., p. 372.
Where a workman, following a general practice, attempted
to get on a labor train while it was in motion, slipping, the
wheels passed over his right foot mashing the toes, it was
held that under the peculiar circumstances the man had not
been guilty of such negligence as to preclude an award of
compensation. Re Edward McCarthy, Id., p. 374.
Where, according to a regular custom, a laborer in going
to his work, got off the train while it was in motion, and
losing his balance fell to the ground, his right foot going
under the wheels of the car, it was held that he was entitled
to compensation as he had not been guilty of negligence or
misconduct. Re C. L. Short, Id., p. 375.
Where a labor train on which the claimant was riding did
not stop and he, with seven or eight other men got off while
it was in motion, and was injured, it was held that he was
entitled to compensation. It appeared that the men had
been in the habit of getting off in the same way from this
train at the particular place where they alighted. Re
Richard Bunting, Id., p. 391.
An employe was on a labor train waiting for the train to
stop, when his foot slipped off the step and he, being in a
weakened condition from sickness and fever, was unable
to hold on with his hands until the train came to a stop. It
FEDERAL COMPENSATION ACT 1023
Acts not negligent; compensation granted
was held that under the circumstances he was entitled to
compensation as he had not been guilty of negligence or mis-
conduct. Re Samuel Mann, Id., p. 392.
A brakeman was injured while getting on the engine.
His foot slipped and he fell under the engine. It was con-
tended that he had no right to be on the front of the train, as
his position was in the middle of the train. It appeared,
however, that he sometimes did work in the front of the
train under the direction of the conductor. As it appeared
that it was absolutely necessary that the trainmen jump on
and off moving trains and hang on to them under all sorts
of conditions, it was held that the man was not guilty of
negligence and he was entitled to compensation. Be James
Headley, Id., p. 395.
An employ^ got on an engine to ride to a restaurant where
it was usual for them to get dinner. A negro brakeman
yelled to him to get off and he, being frightened jumped off
while the train was in motion. It appeared to be uncertain
whether or not employes had been directed to ride on engines.
At any rate no such rule was enforced with any great strict-
ness. It was held that under the circumstances compensa-
tion should be awarded as the claimant had not been guilty
of negligence. Re Ernesto Gamboa, Id., p. 397.
The claimant, a brakeman on a train, contended that
while standing between two dump cars, connecting the air
hose on the train, the engineer started the train ahead before
he gave the signal to do so, and that he was knocked down
and his left leg was cut off at the knee. The engineer con-
tended that he received the signal from the brakeman to go
ahead. The solicitor held that in view of the conflicting
testimony he would settle the doubt in favor of the claimant,
and therefore awarded compensation. Re George Clark, Id.,
p. 399.
A fireman was requested by the conductor to make a
coupling between an engine and a car because the conductor
and brakeman were busy. The draw bar on the car was out
1024 bradbury's workmen's compensation law
Acts held to be negligent; compensation refused
of repair and not in line with that of the engine. The claim-
ant attempted to shove the drawbar on the engine to one
side with his foot, so as to meet that on the car, when the
engine lurched by reason of a defect in the track, and the
claimant's foot was caught and crushed between the two
drawbars. It was contended that it was negligence for the
claimant to use his foot in making the coupling, instead of
his hand, and that if he had used his hand he would not have
been injured. The evidence showed and it was held that it
was not unusual to make such couplings in the manner
employed by the claimant and that the drawheads frequently
got out of line, and that as the claimant was a fireman and
not a brakeman negligence could not be imputed to him.
Compensation, therefore, was awarded. Re Charles McDer-
mott, Id., p. 368. The Solicitor cited the case of Morris v.
Duluth S. S. & A. Ry. Co., 108 Fed. Rep. 747, where the
Court said: "Where there is a comparatively safe and a more
dangerous way known to a servant by means of which he
may discharge his duty, it is negligence for him to select the
more dangerous method, and he thereby assumes the risk
of the injury which its use entails." In that case it was
held that the fact that a brakeman chose to and did step
in between cars while in motion to draw a coupling pin
instead of using a lever provided for that purpose was evi-
dence of negligence contributing to an injury resulting from
his stumbling while walking between the cars. The Solicitor
also cited the following cases arising under similar circum-
stances: Suttle v. Choctow 0. & G. Co., 144 Fed. Rep. 668;
Gilbert v. Burlington, C. R. & N. Ry. Co., 128 Fed. Rep. 529
and Kansas City Southern Ry. Co. v. Brunty, 133 Fed. Rep.
13. But he distinguished all of those cases from the one under
consideration.
22. Acts held to be negligent; compensation refused.
Claimant was working in a pit where what is known as a
cable way skip was being raised and lowered for the purpose
FEDERAL COMPENSATION ACT 1025
Acta held to be negligent; compensation refused
of removing the material taken out of the pit. It was found
that pieces of rock would adhere to the mud on the bottom
of the skip and that in the process of raising and lowering
the same the rocks would fall off the skip down into the
pit where the claimant was working. The claimant ad-
mitted that he was standing underneath the skip and that
it was being lowered into the pit in violation of the in-
structions from the foreman which he had forgotten to ob-
serve. It was held that compensation should therefore be
refused for negligence. Re Salomon Anaya, Op. Sol. Dep.
C. &L., p. 358.
An employe1 injured while getting on or off a moving train,
when it is not necessary for him to do so, cannot recover com-
pensation. Re Edgar Cousins, Id., p. 356; Re Constantin BeU
mon, Id., p. 355; Re Walter Lemont, Id., p. 355; Re Josephus
Liverpool, Id., p. 353; Re L. B. Kent, Id., p. 352; Re James
Coward, Id., p. 350; Re Arnold Simmons, Id., p. 343; Re
Grandville Hunt, Id., p. 326.
An employe1 riding on a labor train from work, was sitting
on the sill at the rear end of the labor car. There was plenty
of room in other portions of the car where he could ride.
When the train reached the yard the claimant's feet which
were extending beyond the side of the car struck some object
alongside the track, causing him to be thrown on the track
and injured. It was held that under the circumstances
he was not entitled to compensation as a safe place had
been provided for the claimant to ride on, but he, of his
own volition, had chosen to occupy an unsafe place. Re
Archibald Alleyne, Id., p. 357.
The hat of an employe1 blew off while he was on a moving
labor train. He got off to get the hat while the train was
still moving and in doing so fell and rolled under the wheels.
It was held that he was guilty of negligence which precluded
an award of compensation. Re James Wood, Id., p. 349.
An employe1 trying to get on the footboard of an engine
of a moving train going to dinner, slipped and fell and both
65
1026 bradbtjry's workmen's compensation law
Acts held to be negligent; compensation refused
legs were cut off. A sign was printed on the front and rear
of the locomotive "keep off." Frequently, however, labor-
ers got on the engines while moving. A labor train was due
to leave in a short time to take men to dinner and it appeared
that there was no need for the injured workman to try to
ride on the locomotive. It was held under such circumstances
that compensation should be denied for negligence. Re
William Hindsfld., p. 342.
An employe was injured while riding on the pilot of an
engine. It appeared that the employes were strictly for-
bidden to ride on the engine although it was customary for
them to do so. It appeared also that it was difficult to en-
force the rule forbidding employes to ride on the engines,
as a number of men would jump on at once in some instances.
It was held under the circumstances of the case that com-
pensation should be refused on the ground of negligence and
misconduct. Re Halecio Sahanas, Id., p. 340.
Where an employe" was either under or on a dump car,
where he had no business to be, and was injured by reason
of an engine coming along and bumping into the train of
dump cars, it was held that compensation should be
denied on the ground of negligence. Re Simeon Carter, Id.,
p. 339.
Where an employe" was riding on the engine of a train
which he had been strictly forbidden to do, and on all lo-
comotives there was printed in large letters in the front
and rear a warning to keep off, it was held that he was guilty
of such negligence and misconduct as precluded an award
of compensation. Re Santos Garcia, Id., p. 338.
An employe" while on a labor train stepped on the link
between the bumpers of two cars, and the train slacking,
his foot was crushed between the bumpers. It was held
that any ordinarily prudent man would not step on the link
connecting two cars together, when it was known that an
engine was attached to the train and was moving or liable to
move at any time, and that therefore the claimant had been
FEDERAL COMPENSATION ACT 1027
Acts held to be negligent; compensation refused
guilty of such negligence as precluded the recovery of com-
pensation. Be E. V. Alcee, Id., p. 337.
The claimant attempted to step on the footboard of an
engine to ride a short distance to take a labor train which
carried men to dinner. Another brakeman, on the front
of the engine, who did not see him, suddenly shifted his
position and the claimant stepped on his foot, slipped and
fell upon the track. It appeared that there was ample time
to catch the labor train which was standing near and it
was not necessary for the claimant to get on the engine to
reach the labor train in time. All of the engines in this
place were plainly marked "Keep off " on the front and rear
bumper. It was held that the claimant was in a place in which
he had no right to be and from which he was properly excluded
and that warning of such exclusion was properly posted.
Under the circumstances, therefore, it was declared that the
claimant had been guilty of such negligence as to deprive him
of the right to compensation. Be Wesley Edghill, Id., p. 336.
The claimant, although employed as a brakeman, was
assigned to duty as a locomotive engineer while the regular
engineer was at dinner. The claimant was in the cab of
the engine alone, the fireman having gone to the storehouse
for some oil. In response to signals from a switchman, the
claimant backed the engine, pushing a loaded concrete
car toward the incomplete end of the bridge, moving very
slowly and stopping several times, until just before the in-
complete end of the bridge was reached. Then he opened
the throttle and the car and engine went with a rush. The
car went over the plank which had been placed across the
track to prevent cars from running over the edge of the
bridge, and went into the sluiceway, drawing the engine
after, thus causing the injury complained of. After the
accident it was found that the throttle of the engine was wide
open. It was held that the accident was due to such negli-
gence as precluded recovery of compensation. Be William
Ewald, Id., p. 331.
1028 BRADBURY S WORKMEN S COMPENSATION LAW
Acts held to be negligent; compensation refused
The claimant was helping to dig a trench two feet wide
and six feet deep into a sand bank when one wall caved in
upon him and he was injured. His superior officer reported
negligence and misconduct because he remained in the trench
after being twice told to come out. It appeared from the
testimony that the claimant seemed to want to make it
appear that he was brave and that when the foreman ordered
him out the claimant said there was no danger and he could
tell when the dirt was going to cave in in time to get out.
It was held that the claimant was grossly negligent and com-
pensation was denied. Re J. W. Roberts, Id., p. 335.
The claimant was fixing a bent switch on an electric
switchboard with a screw driver, and got a short circuit
which caused a very deep burn on the wrist. It appeared
that the man had not obeyed instructions as to such work,
which had for their purpose the avoiding of accidents from
a short circuit, on a grounded switchboard such as this is,
and compensation was therefore refused on the ground of
the negligence of the employe. Re C. 0. Fowler, Id., p. 332.
The claimant, with a gang of other laborers, was engaged
in removing a six inch water pipe from a ditch. He entered
the ditch to make the rope fast to one end of the pipe and
after doing so was told by the foreman to get out of the way of
the pipe. Instead of doing this, he stepped to the other side
of the pipe and the foreman again told him to get entirely
out of the way. The claimant replied that he was all right
and began pulling upon the pipe to help the other men who
were pulling from the outside of the ditch. The pipe swung
around and struck the claimant causing the injury. It was
held that this was a plain case of negligence which precluded
a recovery. Re Frank Alston, Id., p. 330. In the last-men-
tioned case the solicitor cited the case of Williams v. Choctaw
0. & G. R. Co., 149 Fed. Rep. 104, to the effect that a man
"may not close his eyes to obvious and dangerous conditions
and expect to recover in case of accident."
The claimant, while removing a tool from under a steam
Federal compensation act 1029
Acts held to be negligent; compensation refused
hammer in motion, sustained severe injuries on account of
the hammer having struck a false blow, which caused the
handle of the tool to strike the injured man on his left side.
It appeared that the claimant had been warned by the
hammer driver that to remove the tool while the hammer was
in motion was dangerous. It was held under the circum-
stances that he had been guilty of such negligence as pre-
cluded an award of compensation. Re Daniel Currie, Op. Sol.
Dep. C. & L., p. 329.
An employ^ was injured while attempting to board a
moving ferry boat which had started on its trip. In attempt-
ing to get aboard he made a jump, but instead of landing on
the boat he fell under the water, striking the stern of the
boat in his fall. It was held that he was guilty of such
negligence as precluded an award of compensation. Re
James Dale, Id., p. 350.
Where a boy crawled under a car to get out of the sun
and fell asleep with his left foot across the rail, and was in-
jured when the train started, it was held that compensation
should be refused on the ground of negligence. Re Ferdinand
Ricketts, Id., p. 341.
A laborer went under a car of a train to which an engine
was attached, to shelter himself from the rain, and when
the train was started the wheels ran over a portion of his
foot and bruised his toes. It was held that he was guilty of
negligence which precluded recovery of compensation. Re
Nicolas Bacema, Id., p. 333.
During a heavy rainstorm the claimant got under a car
and while in this position the train of which the car formed
a part was moved by an engine. It was held that the claim-
ant unnecessarily placed himself in obvious danger and was
therefore guilty of negligence or misconduct which would
preclude an award of compensation. Re Ramon Torres, Id.,
p. 325, s. c, p. 326.
Where an electrician was directed not to work on any wire
that was alive and disregarding these rules was burned from
1030 bradbury's workmen's compensation law
Contributing cause of disability
a short circuit, it was held that he was guilty of such negli-
gence or misconduct as precluded an award of compensation.
Re M. J. Ryan, Id., p. 341.
Where the claimant was injured by being struck in the
eye with a wooden plug, which was blown out of a pump, in
consequence of the opening of a certain valve by an appren-
tice boy, and thg workman himself directed the boy to open
the valve and that he knew that the opening of the valve,
while a certain other valve was likewise open, would cause
the plug to blow out, and that it was dangerous, was held
to be guilty of such negligence as required that compensation
should be denied. Re W. H. Taylor, Id., p. 324.
The claimant was going home from his work, and while
walking upon the railroad tracks a train approached from
the rear, entirely unnoticed, struck him and inflicted a
severe injury to his left hip. It was held that the claimant
had been guilty of such negligence as precluded an award of
compensation. Re R. R. Lopez, Id., p. 330.
The claimant declared that he was walking on a trestle
in the course of his employment when two engines jumped
the track where he was and fell to the bottom of the river
channel underneath the trestle, and that he was caught be-
tween the two engines and his foot crushed. The division
engineer stated that the claimant was riding on the foot-
board of one of the engines and that he had been forbidden
to ride on the engines. The Solicitor stated that if the state-
ment of the claimant was to be relied upon he was entitled
to compensation, whereas if the evidence of the division
engineer and other witnesses were to be relied upon, no
compensation could be awarded. The case was sent back
for further testimony. Re Miguel Colmeneiro, Id., p. 327.
23. Contributing cause of disability.
A claim is not barred by evidence of congenital weakness
which may have contributed to cause an injury to result in
incapacity. Re J. F. Mulverhill, Op. Sol. Dep. C. & L., p. 538.
FEDERAL COMPENSATION ACT 1031
Injury means disability
To entitle an employ^ to continued compensation the
disability must be due in an appreciable measure to the
original injury. Re A. C. McAllister, Id., p. 546.
An injured employ^ is entitled to compensation no longer
than his incapacity is due to his original injury and may not
be paid, on account of old age or other bodily infirmity,
because he is unable to resume work within a year. Re
Elijah Blackhurst, Id., p. 556.
Where a claimant has worked for a considerable period
up to the time of the accident and declared positively that
he had no prior injury, and that his disability is due entirely
to the accident, such circumstances are sufficient to support
the claimant's statement where the medical testimony
merely casts a doubt on the claimant's statement as to prior
injuries, and the physician expresses the belief that the
trouble dated back some time before the injury, although he
was unwilling to make that statement as a positive fact.
Re J. W. Davis, Id., p. 606.
24. Injury, definition of.1
The word "injury" is used comprehensively to embrace
all the cases of incapacity to continue the work of employ-
ment unless the injury is due to the negligence or misconduct
of the employe injured and including all cases where, as a
result of the employe's occupation, he, without any negli-
gence or misconduct, becomes unable to carry on his work
and this condition continues for more than fifteen days.
Re A. B. Adolphus, Op. Sol. Dep. C. & L., p. 31; citing the
opinion of the Attorney General, dated May 17, 1909 in the
Clark case.
25. Injury means disability.
Until the injury shall have caused incapacity it is not such
an injury as is contemplated by the statute. The injury
which may entitle an employ^ to compensation under the
1 See exhaustive discussion of this subject in Chapter VI.
1032 bradbury's workmen's compensation law
Ability to resume work
Act does not begin to exist until the accident or literal injury
has resulted in incapacity for work. When it has existed
for more than fifteen days the right to compensation accrues.
Re A. B. Adolphus, Op. Sol. Dep. C. & L., p. 31.
26. Injuries before act passed.
The accident qr other cause of injury as well as the result-
ing incapacity must have occurred on or after the date fixed
in the act, to wit, August 1, 1908, to entitle the claimant
to compensation. Re A. B. Adolphus, Op. Sol. Dep. C. &
L., p. 31.
27. Ability to resume work.
Ability to resume work means ability to resume the regu-
lar work of the injured person's employment, in the course
of which the injury was sustained, not any work he may be
able to do notwithstanding the injury. Re query of naval
constructor of Boston Navy Yard, Op. Sol. Dep. C. & L.,
p. 263.
Ability to resume the regular work of the injured per-
son's employment appearing, compensation ceases under the
Act, although the employe* remains seriously and perma-
nently injured. Re David Carroll, Id., p. 285. In the last-
mentioned case the employe, while driving a team hauling
stone out of a trench, was hit on the jaw by rock thrown
from a place and the jaw was fractured. At the time compen-
sation was disallowed the fracture was still ununited, but it
was found that the employe, notwithstanding the perma-
nence of the injury, was still able to do the work which he
had done before. Compensation, therefore was discontinued.
Inability to resume work of employment appearing, com-
pensation is payable although the claimant is discharged
and obtains other employment of a different character.
Re E. L. Hill, Id., p. 287.
Ability to resume work at a given date cannot be predi-
cated on the fact that an injured person refuses to submit
FEDERAL COMPENSATION ACT 1033
Computing year during which compensation is payable
to an operation and therefore, according to the medical
opinion, delayed recovery. Re Pete Passus, Id., p. 289.
28. Successive claims.
An employ^, who, after an injury, had resumed work
pursuant to orders, being assigned to lighter duties and was
again injured, resulting in immediate incapacity was held
to have established a new claim. Re W. R. Fletcher, Op. Sol.
Dep. C. & L., p. 610.
29. Computing year during which compensation is payable.
The year for which compensation was payable begins to
run on the day following the injury and terminates with
the anniversary of the day of the injury, under the Federal
Act. Re D. J. Kelly, Op. Sol. Dep. C. & L., p. 255; Re
Atancio Lacorte, Id., p. 258.
The date of the injury from which the year of compensa-
tion begins to run is the date on which the injury results
in incapacity for work. Re William Bowen, Id., p. 258;
Re E. A. Drummond, Id., p. 261; Re J. L. Malone, Id., p. 261.
The provision of the statute that the compensation
shall be paid for one year after the injury unless he is sooner
able to resume work means that the employe1 or his dependent
is entitled to pay for a full year, excluding Sundays, and the
fact that the employe1, if living, not disabled, would not have
been able to work all the year, by reason of the shutting down
of the works or a portion thereof, has no effect on the amount
of compensation which should be paid. Re Frank J. Huff
(Op. of the Comptroller of the Treasury), Id., p. 459.
Where the workers are employed on a per diem basis
and are injured in the course of their employment, they
are entitled to compensation for absence on Sundays and
holidays if in the regular course of the work they would
have been compelled to have worked on these days, and
if not, they should not be allowed compensation for Sundays
and holidays. Re Letter of Comptroller Tracewell to the
1034 bbadbury's workmen's compensation law
Wages as basis of compensation
Secretary of the Interior, December 10, 1909, Op. Sol. Dep.
C. & L., p. 632; 15 Comp. Dec. 464.
30. Wages as basis of compensation.
The- compensation granted includes allowance for sub-
sistence or in lieu of subsistence, when the same forms part
of the regular itemuneration of earnings. Re Ed. Lanzy,
Op. Sol. Dep. C. & L., p. 291.
The right of a laborer to the same pay as if he continued
to be employed is not lost or diminished because the work
on which he was employed has been stopped or suspended
before he was able to resume work. Be George McCrae, Id.,
p. 293.
The amount of compensation payable to a dependent
parent is equivalent to the full pay of the deceased for the
balance of the year following the latter's death, although
the' parent had not been wholly dependent upon him or had
received, before the injury, only a share of his wages. Re
Ymsel Noriega, Id., p. 296; Re J. J. Korp, Id., p. 297.
The right to the same pay as though he continued to be em-
ployed includes the right to any increase in the pay attached
to the injured person's, position made after the injury and
during incapacity. Re J. W. Hamilton, Id., p. 297; Re
Michael O'Brien, Id., p. 298.
Where an injured employe, although unable to return to
his regular employment, returns to work of a different
character and receives the same pay as if his duties remained
unchanged, compensation under the Act ceases; his right
to compensation is merged in his right to receive pay for his
services. Re Antonio Manaloc, Id., p. 301.
The question of fact as to what is the same pay a workman
would receive if he continued to be employed is ordinarily
better determined by the administrative and accounting
officers of the establishment in which he is employed than
by the Secretary of Commerce and Labor. Re A. E. Clark,
Id., p. 299; Re William R. Miller, Id., p. 299.
FEDERAL COMPENSATION ACT? 1035
Dependents
31. Dependents.
A woman living as the illegitimate wife of an employe" in
the Canal Zone, does not become, upon his death, his widow
within the meaning of the Act. Re Stanley Howell, Op. Sol.
Dep. C. & L., p. 442. A woman who has lived with a man
for several years as his "reputed" wife is not his widow
within the meaning of the Federal Act, upon the employe's
death. Re Fitz Agard, Id., p. 443.
The word "child" or "children" as used in the Act is not
restricted to child or children born in wedlock, but includes
illegitimate children as well. Re J. F. Harding, Id., p. 446.
Where a deceased workman left two illegitimate children
and a father who lived in the same -town, and there was an
inference that the father cared for the children, it was held
that while compensation should be denied to the father as
not being a dependent, it should be paid to him for the benefit
of the two illegitimate children and that he would become a
trustee for the children to apply the compensation for their
benefit. Re R. W. Baugh, Id., p. 482.
The word "parent" does not include a foster parent
where there has been no legal adoption. Re Charles Perkins,
Id., p. 470.
A foster parent by legal adoption may be a dependent
parent within the meaning of the Act. Re F. J. Huff, Id.,
p. 458.
The word "parent" does not include a stepfather or step-
mother. Re Alexander McMurray, Id., p. 462.
A woman who has been divorced from an employe" and
to whom has been given the custody of his children, is not
entitled to compensation on account of his death, although
compensation may be paid to her as guardian for the chil-
dren. Re Edward Niemeier (alias W. J. Niemeir), Id., p. 444.
Where payment, by reason of the death of an employ^,
has been awarded to a widow and she re-marries during the
term for which compensation is to be paid, the payments
are to be continued to her notwithstanding her re-marriage,
1036 bradbury's workmen's compensation law
Dependents
as there is nothing in the Act which requires them to be dis-
continued under such circumstances. Letter of Comptroller
Tracewell to the Isthmian Canal Commission April 20, 1909,
Id., p. 629; also 15 Compt. Dec. 646.
The filing of an affidavit of claim by any one or more of
the beneficiaries named in Section 2 and referred to in Sec-
tion 4 is sufficient to protect the rights of a minor child if filed
within the period of ninety days. Re A. G. Rodriguez, Id.,
p. 444.
Where an employ^ dies, leaving no parent or widow, but
leaving a child entitled to the benefits of the Act and the
acting Spanish consul files an affidavit of claim on behalf of
such child, such acting consul may be regarded as acting in
loco parentis and his affidavit as the affidavit of the child.
Re J. G. Redondo, Id., p. 456.
Where, on account of the death of an employe compensa-
tion had been allowed to the widow and child and the widow
dies within the compensation period and the care of the
child devolves upon the child's maternal grandmother, the
remainder of the year's compensation may be paid to such
maternal grandmother for the use and benefit of the child
Re J. E. Jefferson, Id., p. 457.
A parent is not dependent who did not in fact depend in
some measure for the means of living upon the deceased;
but if the parent is in actual need the fact of dependence is
sufficiently shown if it further appears that the deceased at-
tempted to supply such need even to a slight extent, or that
but for the death, the parent was reasonably assured that
such need would be supplied in some substantial measure.
Re G. W. Branch, Id., p. 467.
The question of dependence is one of fact and the fact
of dependence sufficiently appears if a condition of partial
dependence is shown. Contributions Jby the deceased tend
to establish a condition of dependence, but is not the only
criterion. The natural and equitable claim for support
which parents have upon their children make it proper to
FEDERAL COMPENSATION ACT 1037
Dependents
consider the actual needs of parents and in ascertaining such
needs, it is necessary to look to their age, circumstances,
position in life and earning capacity. Re Theodore Bock,
Id., p. 464.
Where it appeared that for two years and five months
prior to the death of the employe" he contributed $100 to the
support of his father and mother, and it further appeared
that the father's earnings were 50 cents a week, and the
mother's earnings 24 cents per week, and that they were 55
and 45 years old respectively, and that the value of the
property owned by them was $12, it was held that they
were dependent on the employe" and compensation was
awarded. Re Levi Belgrave, Id., p. 471.
Where it appeared that the deceased employe who did not
live with his parents and was not on very good terms with
his father, but who sent to his mother amounts from time
to time, but did not give his father anything, it was held that
the mother's claim for compensation should be granted and
that of the father denied. Re Leon Esselman, Id., p. 472.
The deceased was a negro boy, nineteen years of age,
employed as a trainman in the Canal Zone, earning at the
time of his death 13 cents an hour. The mother was 39
years of age and lived with the father in the British West
Indies. The father earned nothing and the mother's total
income, aside from what she received from the deceased,
consisted of what she earned from washing, which amounted
to 48 cents per week. In the year preceding his death the
deceased contributed $7.68 toward the mother's support.
Neither parent owned any property. It was held that under
the circumstances the mother was entitled to compensation.
Re Thomas Allaway, Id., p. 473.
The deceased, a boy of nineteen years of age, left his home
in Spain and emigrated to Panama, reaching there about
March 15, 1910, and on April 10, 1910 he met his death.
Prior to leaving home he had been employed and contributed
his earnings to the support of his father and mother and the
1038 bradbury's workmen's compensation law
Dependents
other children. He was killed before receiving any pay from
the Canal Commission, and therefore he had sent nothing
home. The claim was considered in three separate opinions
by the solicitor, in the last of which, upon the taking of
further evidence, the foregoing facts were practically es-
tablished, and it was held that the parents were dependent
within the meaning of the act and entitled to compensation.
Re M. T. Gonzalez, Id., pp. 474, 475 and 476.
The claimant, who was the mother of the deceased, lived
in Spain and was entirely destitute, having no income or
property, and subsisted altogether upon public charity.
It appeared that the deceased had not contributed anything
to his mother's support during the period of his employment
upon the Panama Canal. The solicitor, in deciding that the
mother was entitled to compensation said: "In construing
the former act we are hence at liberty to give to the word
dependent the meaning which attaches to it in ordinary
speech, in other words, its usual and popular significance.
So construed, I am of the opinion that a parent who is shown
to be utterly destitute, altogether lacking in property and
income, unable to sustain himself or herself, and depending
on public charity for the means of living, is a dependent
parent within the meaning of the act. A person so circum-
stanced is certainly in a condition of actual dependence and
the fact, as in the present case, that the claimant's son, an
ordinary laborer earning 20 cents per hour, working over
seas in a foreign country, had not, while so employed, con-
tributed anything to her support, does not, in my judgment,
suffice to show that she was not dependent. " The solicitor
calls attention to the different meaning of the word "de-
pendent" as used in the British Compensation Act and the
Federal statute. In the British Act it means such members
of the workman's family "as are wholly or in part dependent
upon the earnings of the workman." Re Leon Garcia, Id.,
p. 477.
The deceased, twenty-one years of age, had come to
FEDERAL COMPENSATION ACT 1039
Dependents
America in 1907 from Austria, his parents advancing him
the money for his passage to the United States. His parents
stated that they had received no money from the deceased
during the twelve months prior to his death, although two
months prior thereto he had written to them promising to
send them about $200, "in order to pay off his and their
debts." The Austrian-Hungarian Consul, who filed* the
claim on behalf of the parents, stated that they were "very
poor and have been hoping all days to receive a support from
their child." It was held, under these circumstances, that
the parents were dependent and entitled to compensation.
Re John Zupa, Id., 479.
The father and mother who were the claimants for com-
pensation by reason of the death of an employe1 in the Canal
Zone stated that the father's weekly earnings during the
twelve months prior to the death of the son were $3; that
those of the mother during the same period were nothing;
that during this same period the deceased did not contribute
to the support of either, but that for four years prior to
his employment in the Canal Commission he contributed
regularly to the support of the mother 72 cents a week.
The father was 45 years of age and the mother 48. It ap-
peared that the deceased had been employed in the Canal
Zone for more than a year prior to his death and that he
did not contribute to the support of either parent during
that time. Under the circumstances it was held that the
parents were not dependent and compensation was refused.
Re J. W. D. Mason, Id., p. 480.
Where the affidavit of the parents of a deceased employe"
stated that the amount of necessary support customarily
received by the parents from deceased prior to his death
was nothing, that during the twelve months prior to the
death the amount received from him was nothing, that the
amount of support from, other persons was nothing, that the
total income from all sources was nothing,, that the average
earnings of each was nothing and that the value of property
1040 bradbury's workmen's compensation law
Dependents
owned by them was nothing, that the father's age was
72 and the mother's 60, and that the deceased lived with
them until 1907, it was held that claimants could not be
regarded as dependents within the meaning of the act and
compensation was refused. Re Mariano Fernandez, Id.,
p. 481.
The deceased was nineteen years of age and left no widow
or children, but did leave a father and mother who made the
claim as to dependence. It appeared that during the twelve
months prior to the death of the employe he lived apart
from his parents and contributed nothing to their support,
and their total income from all sources was $300. The
father contended that the son intended to live with them in
the winter and had promised to return home and help in
whatever way he could. It was held, however, that they
were not dependents within the meaning of the act and com-
pensation was refused. Re Parker Patton, Id., p. 484.
Where it appeared that the deceased had borrowed money
from his father, who was in business, and had considerable
of an income and that the son, prior to his death, had repaid
to his father a portion of the loan, and had promised to make
further payments to the father and re-imbursed him for
sums advanced to permit him to go to Panama, it was held
that the father was not a dependent on the son within the
meaning of the act and compensation was refused. Re J. S.
Dabbs, Jr., Id., p. 484.
The word "portions" as used in the act refers to the divi-
sion of the compensation among the claimants and not to
its division into weekly or monthly payments, and the secre-
tary is authorized to direct that one beneficiary receive
a larger and another a smaller portion; his authority in
this regard may even justify his direction that the whole
compensation be paid to one beneficiary to the exclusion of
the others. Re William A. Brinkky, Id., p. 485; Re Simeon
Osbourne, Id., p. 489.
Where an injured employ^ dies several days or weeks
FEDERAL COMPENSATION ACT 1041
Dependents
after the injury, compensation is payable to the injured
person or his personal representatives from the date of in-
jury to and including the date of death, and for the balance
of the year to the widow, children or dependent parent as
the case may be. Re William MeCarrel, Id,, p. 490. In
such, a case the amount which the deceased was entitled to
at the time of his death became an asset of the estate.
The fact that he did not make a formal claim is immaterial.
He may not have been in condition to do so. Whatever
right he had at the time of his death passed to his legal
representatives. Re William Lindsay, Id., 491.
Where an employe1 dies as the result of an injury before
having made application for or received compensation
the spirit and purpose of the act warrants the payment of
compensation from the date of injury to the date of death,
as well as for the remainder of the year to the widow or
family of the deceased. (Opinion of Comptroller of the
Treasury) Re Jos. L. Sullivan, Op. So. Dep. C. & L., p. 492.
In the last mentioned case the comptroller said: "I do
not think the words 'legal representatives' are here used
as meaning only executors or administrators which is the
ordinary and commonly accepted sense of that term, because
they usually by law represent the deceased. But this is not
the only definition of the term. The words may mean heirs,
or next of kin, descendants, or devisees and distributees."
The employe1 in this case had been injured on June 14th and
became immediately incapacitated for any further work.
He died on June 25th, eleven days later. The Comptroller
held that under the facts presented the payment to the widow
was in accordance with the principles of the law and might
be made. The William MeCarrel case, was decided on
December 3, 1908 while the Joseph L. Sullivan, case was
decided on November 8, 1911. In the MeCarrel case the
employ^ was injured on October 21, and died four days later
on October 25th. In the MeCarrel case the solicitor of the
department stated: "I find no provision of the law which
66
1042 beadbury's workmen's compensation law
Filing claim
would authorize the Secretary to direct that the compen-
sation due the decedent at the time of his death be paid
to his widow." The solicitor added further: "In the pay-
ment of this portion of the compensation authorized by the
act the disbursing officer will doubtless be governed by the
rules laid down by the Comptroller of the Treasury in 12
Comptroller's Decisions, 439."
Compensatiorfrwill not be paid to an administrator of a
deceased employe" either for disability before death or for
compensation after death, unless the administrator repre-
sents a dependent beneficiary specified in the statute. Re
Letter of Comptroller Tracewell to the Secretary of War, May 9,
1912, Op. Sol. Dep. C. & L., p. 635; 18 Comp. Dec. 872.
Where an employe" is injured and makes a claim for com-
pensation, but before the payment of the compensation he
is killed by reason of another accident, the compensation
for the first injury may be paid to the legal representatives
of the employe^ but -if in such a case the employ^ has made
no application for compensation prior to his second injury
causing his death, no compensation can be paid for the first
injury to the legal representatives. Letter of Comptroller
Tracewell to the Isthmian Canal Commission, January 24-th,
1910, Op. Sol. Dep. C. & L., p. 633; 16 Comp. Dec, p. 477.
The Secretary of Commerce and Labor has power to ap-
portion payments to be made to various beneficiaries and
acting under this power he may provide that the payment
be apportioned in equal shares between the father and mother
of a deceased employ^. Re Letter of Comptroller Tracewell
to the Secretary of War, Nov. 8, 1909, Op. Sol. Dep. C. & L.,
p. 630; 16 Comp. Dec. p. 290.
32. Filing claim.
The requirement that an affidavit of claim shall be filed
within ninety days after the death is mandatory, and the
claim of a widow filed ninety-one days after the death of the
employe" is barred by the statute. Re William Goodley, Op.
FEDEBAL, COMPENSATION ACT 1043
Filing claim
Sol. Dep. C. & L., p. 494. In the case last mentioned the
employe" was killed on October 8th, 1908, and the affidavit
was filed on January 7th, 1909. In making the computation
the day on which the employe dies is excluded and the day
on which the affidavit is filed is included. The extension of
the time within which to file a claim cannot be granted on
the ground that the claimant did not understand his rights
and that he was wrongly advised by the overseer of the
work as to the method of procedure in making his claim.
Re David Kaui, Id., p. 495.
What may be a reasonable time in which to file an affidavit
of claim must be determined with reference to the circum-
stances of each case. Re L. F. Perron, Id., p. 536.
Neither a verbal notice of claim by a vice consul of Italy
to the superior officer of an Italian subject, killed while in the
employ of the United States, within ninety days after death,
nor a telegraphic notice by such consul sent to the Secretary
of Commerce and Labor ninety-two days after his death, is a
compliance with the Act. Re Samuele Badolato, Id., p. 505.
The. last mentioned case was considered in three separate
opinions, but the solicitor adhered to the opinion first ex-
pressed. In concluding the third opinion he said: "It is
recognized that the limitations of the statute have worked
a peculiar hardship in the case of Mr. Badolato, but the
executive branch of the Government is without authority
to extend the benefits of the Act beyond the plain language
used by the legislative branch. To undertake by any rule
or regulation to allow nonresident foreigners a longer period
than 90 days in which to file affidavits of claim would be a
usurpation of the legislative function by the executive de-
partment and contrary to the provisions of our Constitu-
tion."
Where a verbal claim for compensation was promptly
made, but an affidavit of claim was not filed until nearly a
year after the injury, owing to the neglect of official superiors
to furnish necessary forms, the delay was held to be not un-
1044 bradbury's workmen's compensation law
Filing claim
reasonable, and compensation was awarded. Re James
Sturgeon, Id., p. 535.
An affidavit of claim may be executed and filed lor the
claimant by an attorney in fact duly appointed for that
purpose. Re Jesus Jvmiiwz, Id., p. 526.
An affidavit of claim filed within ninety days by an agent,
in accordance with a sufficient power of attorney executed
by a widow of the deceased employe constitutes due filing.
Re A. G. Munoz, Id., p. 510.
The delivery of an affidavit of claim to the official superior
of the deceased employe in accordance with the regulations
of the secretary designating such official superior to receive
the same, is a filing with the secretary within the meaning
of the Act. Re George Nurse, Id., p. 501.
It is the date of delivery to the official superior and not the
date of the execution of the affidavit of claim which deter-
mines whether or not the affidavit of claim is filed within
ninety days. Re E. R. Graham, Id., p. 504.
Ah affidavit of claim deposited in the mail within ninety
days after the death of the employe, addressed to the de-
ceased's official superior, but not received by the latter until
after the expiration of the ninety day period, is not a filing
within the meaning of the Act. Re Isaiah Henry, Id.,
p. 510.
Where a claimant cannot act for himself within the time
limited, and another, in his name and behalf, but without
prior authority, acts for him and files a claim within ninety
days, a ratification by the claimant of the act done on his
behalf, though made after the expiration of the ninety days,
relates back to the time of the act done so as to make the
filing effective as of the prior date. Re Lyall CaUender, Id.,
p. 512.
An affidavit of claim filed with the American consul at
Madrid to whom the proper blanks had been sent, and
through whom they were to be returned when filled out and
executed, held under the circumstances to have been filed
FEDERAL COMPENSATION ACT 1045
Filing claim
with the Secretary of Commerce and Labor. Re G. P. Mel-
char (alias Martin Lorenzo), Id., p. 521.
If a beneficiary in case of death, in person or by an agent,
files a claim for compensation or what is equivalent to a
claim within the time prescribed, and an "affidavit" in the
technical sense is not filed until ninety days have expired,
owing to the delay of Government officers in supplying the
necessary forms, the right to compensation is not barred.
Re S. A. Powers, Id., p. 497.
An employ^ was killed on March 28th, 1909. He was
unmarried and his father lived in Spain. On April 21, 1909,
the claimant executed a power of attorney in Spanish,
authorizing the Spanish consul at Panama to act on behalf
of the claimant. On June 17, 1909, this power of attorney
was filed with the examiner of accounts of the Isthmian
Canal Commission, and the Spanish consul requested that
proper forms be sent him for the purpose of making the claim
and affidavit required. As the power of attorney and
accompanying letter were written in Spanish they were
referred to another office for translation, and in some way
the matter was overlooked for several weeks and until the
ninety day limit had expired. It was held that under the
circumstances the delay should be excused and the claim al-
lowed, as having been filed in time. Re J. H. Maillo, Id.,
p. 498.
An employ^ was killed May 3, 1909, and his parents
who resided in Spain received word of the death of their son
on May 28, 1909. They duly executed, under the laws of
Spain, a power of attorney authorizing the Spanish consul in
the City of Panama to do all necessary acts for the purpose
of securing whatever indemnity might be available to them
under the circumstances. This power of attorney was duly
filed by the Spanish consul with the claim officer of the Canal
Commission, who advised the former official that he should
file a claim on behalf of the claimants, to which he replied
that inasmuch as the claim had been filed by the parents
1046 bbaobukt's workmen's compensation law
Resignation of employe1 after injury
direct he did not care to file a claim. This power of attorney
was duly sworn to and fully evidenced the intention on the
part of the claimants to make a claim for such indemnity as
they would under the laws be entitled to receive. Subse-
quently, on June 30, 1909, the Department of State for-
warded to the American Vice Consul at Madrid, Spain,
blank forms adopted by the Department, to be filled out by
claimants for the purpose of making a formal claim thereon.
These forms were in turn sent to the claimants, who, as
stated by the American consul, lived in a little town far in the
country and with but little communication with the outside
world. The blanks were filled out and owing to the absence
of the notary in the little town a delay was occasioned, but
the papers, properly authenticated, were mailed at a town
in Spain on August 2, and reached the American consul on
August 5. As the ninety day limit expired on August 1, it
was first decided that the claim had not been filed within the
statutory period. When the first decision was made, how-
ever, there was nothing in the record to show the filing of
the power of attorney by the Spanish consul at Panama.
Under the circumstances, it was held that the filing of this
paper was sufficient to comply with the law to prevent the
statute of limitation running against the claim and compensa-
tion was awarded. Re N. M. Martin, Id., p. 499.
An affidavit of claim may be executed before any person
authorized to administer oaths generally, and the authority
of a person in a foreign country to administer oaths generally
is a question of fact which should be established by satis-
factory evidence. Re Joseph Gilfillen, Id., p. 523.
Authority to administer oaths generally is not indispensa-
ble if the specific authority to administer oaths is not so
limited as to exclude the oath in question. Re Leon Grant,
Id., p. 528.
33. Resignation of employ^ after injury.
Where an employe" becomes incapacitated by reason of
FEDERAL COMPENSATION ACT 1047
Medical examination
an injury received in the course of his employment, his
status as a beneficiary immediately attaches, and a resigna-
tion thereafter handed in while incapacity still exists, does
not have the effect of changing the man's status as being a
person employed by the United States and he is entitled to
compensation, notwithstanding the resignation. Re Charles
Salzmann, Id., p. 599.
Where an employe1 quit work under the United States
because he was unable to continue work and made an appli-
cation for compensation, based on an injury received while
in the service, but he stated that he had not made the claim
while still in the service by reason of the fact that he did
not know of the Compensation Act, it was held that he^
was entitled to compensation. Re T. H. Watson, Id.,
p. 596.
34. Medical examination.
A refusal of a claimant to submit to a medical examination
by a representative of the Government, during his period of
alleged incapacity, is sufficient reason to bar him from the
benefits of the Compensation Act. Re J. H. Boyan, Id.,
p. 430.
In order to defeat a right to compensation for refusal
to submit to an examination, it is necessary that such an
examination shall have been directed by the Secretary, that
it be made without expense to the employ^, and the em-
ploye be advised that such examination is required by the
Secretary. Re J.E. Mayott, Id., p. 616.
If the Secretary so directs, an examination made by a
naval surgeon designated by the Secretary of the Navy to
examine an employe1 to determine this right to continue com-
pensation would be a compliance with the Act. Re Enrique
ViUanueva, Id., p. 615.
The law requires an examination at least once in six
months during incapacity and contemplates that payments
of compensation be not authorized for a longer period than
1048 BRADBURY'S WORKMEN'S COMPENSATION LAW
Administration
six months at a' time even though the disability is permanent
in its nature. Re Sam Haynes, Id., p. 611.
The duty of claimants to submit to medical examination
at least once in six months is mandatory upon tfoem, but the
obligation of the Secretary to provide such an examination
is directory so that a right to compensation is not lost by
the Secretary's failure to act. Re Feliciano ViUafranca, Id.,
p. 612.
35. Physician's certificate.
Where the evidence shows incapacity for more than fifteen
days, the attending physician's certificate covering onjy the
thirteen days the employe1 was under his observation satis-
fies the law. Re F. C. Kuehnle, Op. Sol. Dep. C. & L., p. 531.
The fact that no physician was employed satisfactorily
accounts for the non-production of a physician's certificate.
Re Charles Wagner, Id., p. 532; Re James Foster, Id., p. 533.
36. Administration.
The duty of determining whether a claim "for compensation
has been established involves a discretion on the part of the
secretary, which cannot be delegated to any other person.
Re Feliciano Villafranca,:Op. Sol. Dep. C. & L., p. 542.
All questions of fact under the Federal Statute are to be
determined by the Secretary of Commerce and Labor, and
it is not the privilege of the Attorney General to determine
questions of fact or mixed questions of fact and law. Re W.
P. Hutton, Opinions of Attorney General, p. 322.
The Act of May 30th, 1908 (35 Stat. 5S6), is exclusive
after it came into effect and after that date it was no longer
in the power of the Isthmian Canal Commission by regula-
tions past or present to enlarge or diminish the provisions
of that Act, as to the relief extended to employes of the
Commission for injuries received in the line of such employ-
ment. Letter of Comptroller Tracewell to the Isthmian Canal
FEDERAL COMPENSATION ACT 1049
Text of Act
Commission, Sept. 1, 1908, Op. Sol. Dep. C. & L., p. 618;
15 Comp. Dec. p. 115.
ARTICLE B— TEXT OF FEDERAL ACTS
AN ACT granting to certain employe's of the United States the
right to receive from it compensation for injuries sustained in
the course of their employment.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That when, on or
after August first, nineteen hundred and eight, any person em-
ployed by the United States as an artisan or laborer in any of its
manufacturing establishments, arsenals, or navy-yards, or in the
construction of river and harbor or fortification work or in hazard-
ous employment on construction work in the reclamation of arid
lands or the management and control of the same, or in hazardous
employment under the Isthmian Canal Commission, is injured in
the course of such employment, such employe" shall be entitled to
receive for one year thereafter, unless such employe, in the opinion
of the Secretary of Commerce and Labor, be sooner able to resume
work, the same pay as if he continued to be employed, such pay-
ment to be made under such regulations as the Secretary of Com-
merce and Labor may prescribe: Provided, That no compensation
shall be paid under this Act where the injury is due to the msegli-
gence or misconduct of the employe injured, nor unless said injury
shall continue for more than fifteen days. All questions of negli-
gence or misconduct shall be determined by the Secretary of Com-
merce and Labor.
Sec. 2. That if any artisan or laborer so employed shall die dur-
ing the said year by reason of such injury received in the course of
such employment, leaving a widow, or a child or children under
sixteen years of age, or a dependent parent, such widow and child
or children and dependent parent shall be entitled to receive, in
such portions and under such regulations as the Secretary of Com-
merce and Labor may prescribe, the same amount, for the re-
mainder of the said year, that said artisan or laborer would be en-
titled to receive as pay if such employe were alive and continued
1050 bradbury's workmen's compensation law
Text of Act
to be employed: Provided, That if the widow shall die at any time
during the said year her portion of said amount shall be added to
the amount to be paid to the remaining beneficiaries under the
provisions of this section, if there be any.
Sec. 3. That whenever an accident occurs to any employe1 em-
braced within the terms of the first section of this act, and which
results in death or a probable incapacity for work, it shall be the
duty of the official superior of such employe1 to at once report such
accident and the injury resulting therefrom to the head of his
Bureau or independent office, and his report shall be immediately
communicated through regular official channels to the Secretary
of Commerce and Labor. Such report shall state, first, the time,
cause, and nature of the accident and injury and the probable
duration of the injury resulting therefrom; second, whether the
accident arose out of or in the course of the injured person's em-
ployment; third, whether the accident was due to negligence or
misconduct on the part of the employe" injured; fourth, any other
matters required by such rules and regulations as the Secretary of
Commerce and Labor may prescribe. The head of each Depart-
ment or independent office shall have power, however, to charge a
special official with the duty of making such reports.
Sec. 4. That in the case of any accident which shall result in
death, the persons entitled to compensation under this Act or their
legal representatives shall, within ninety days after such death, file
with the Secretary of Commerce and Labor an affidavit setting
forth their relationship to the deceased and the ground of their
claim for compensation under the provisions of this Act. This shall
be accompanied by the certificate of the attending physician setting
forth the fact and cause of death, or the nonproduction of the
certificate shall be satisfactorily accounted for. In the case of
incapacity for work lasting more than fifteen days, the injured
party desiring to take the benefit of this act shall, within a reason-
able period after the expiration of such time, file with his official
superior, to be forwarded through regular official channels to the
Secretary of Commerce and Labor, an affidavit setting forth the
grounds of his claim for compensation, to be accompanied by a
certificate of the attending physician as to the cause and nature of
the injury and probable duration of the incapacity, or the non-
production of the certificate shall be satisfactorily accounted for.
FEDERAL COMPENSATION ACT 1051
Text of Act
If the Secretary of Commerce and Labor shall find from the report
and affidavit or other evidence produced by the claimant or his or
her legal representatives, or from such additional investigation as
the Secretary of Commerce and Labor may direct, that a claim for
compensation is established under this act, the compensation to be
paid shall be determined as provided under this act and approved
for payment by the Secretary of Commerce and Labor.
Sec. 5. That the employe shall, whenever and as often as re-
quired by the Secretary of Commerce and Labor, at least once in
six months, submit to medical examination, to be provided and
paid for under the direction of the Secretary, and if such employe
refuses to submit to or obstructs such examination his or her right
to compensation shall be lost for the period covered by the contin-
uance of such refusal or objection.
Sec. 6. That payments under this Act are only to be made to the
beneficiaries or their legal representatives other than assignees, and
shall not be subject to the claims of creditors.
Sec. 7. That the United States shall not exempt itself from lia-
bility under this Act by any contract, agreement, rule, or regula-
tion, and any such contract, agreement, rule, or regulation shall be
pro tanto void.
Sec. 8. That all acts or parts of acts in conflict herewith or pro-
viding a different scale of compensation or otherwise regulating its
payment are hereby repealed.
Approved, May 30, 1908.
AN ACT to amend an Act entitled "An Act granting to certain
employes of the United States the right to receive from it com-
pensation for injuries sustained in the course of their employ-
ment," approved May thirtieth, nineteen hundred and eight.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That the provisions
of the Act approved May thirtieth, nineteen hundred and eight,
entitled "An Act granting to certain employes of the United States
the right to receive from it compensation for injuries sustained in
the course of their employment," shall, in addition to the classes
of persons therein designated, be held to apply to any artisan,
laborer, or other employe engaged in any hazardous work under
1052 bradbury's workmen's compensation law
Text of Act
the Bureau of Mines or the Forestry Service of the Wasted States:
Provided, That this Act shall not be held to embrace any case aris-
ing prior- to its passage.
Approved, March 11, 1912.
(37 Stat. 238-289)
And hereafter ±he benefits of the Act of May thirtieth, nineteen
hundred and eight (Thirty-fifth Statutes, page five hundred and
fifty-six), entitled "An Act granting to certain employes of the
United States the right to receive from it compensation for injuries
sustained in the course of their employment," shall be extended
to persons employed by the United States in any hazardous em-
ployment in the Lighthouse Service.
Approved, July 27, 1912.
(36 Stat. 1363)
Sec. 5. Hereafter the act granting to certain employes of the
United States the right to receive from it compensation for injuries
sustained in the course of their employment shall apply to all em-
ployes under the Isthmian Canal Commission, when injured in the
course of their employment; and claims for compensation on ac-
count of injury or death resulting from an accident occurring, here-
after shall be settled by the chairman of the Isthmian Canal Com-
mission, who shall, as to such claims and under such regulations
as he may prescribe, perform all the duties now devolving upon the
Secretary of Commerce and Labor: Provided, That when an injury
results in death claim for compensation on account thereof shall be
filed within one year after such death.
Approved, March 4, 1911.
KENTUCKY
(L. 1914, c. .73)
AN ACT to create a Workman's Compensation Fund and to pro-
vide a method of compensation for employed who may be in-
jured, or the dependents of those killed in the course of their
employment from said fund, to be raised and paid into the hands
of the State Treasurer, as herein provided, and to define and
fix the rights of employes and employers and to define the de-
fenses that may be made by employers in actions for damages
arising from death or personal injury of their employes, and to
provide a method of raising said fund, and to create a Board
of Commissioners to administer said fund and to define the
rights, powers and duties of said Board of Commissioners.
Be it enacted by the General Assembly of the Commonwealth of Ken-
tucky.
Section 1. That a Board of Commissioners is' hereby created to
be known as "The Workmen's Compensation Board" to admin-
ister the funds for the compensation of injured workmen, and the
dependents of killed workmen, as herein provided. Said Board
shall consist of three members, who shall be the Attorney General,
the Commissioner of Insurance, and the Commissioner of Agricul-
ture, Labor and Statistics of the Commonwealth of Kentucky,
who shall receive seventy-five dollars each per month, payable
out of the Compensation Fund.
Sec. 2. The Board shall keep and maintain in its main office in
the City of Frankfort, Kentucky, and shall provide suitable
rooms, necessary office furniture, supplies, books, periodicals, and
maps for the same. All necessary expenses shall be audited and
paid out of the Workmen's Compensation Fund created under this
Act. It shall provide itself with a seal for the authentication of
its orders, awards and proceedings, on which shall be inserted the
Wofrds: "Workmen's Compensation Board, State of Kentucky,
Official SeaL" The Board may hold sessions at any place within
the State. Said Board shall have the power to sue and be sued.
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Sec. 3. The Board shall elect one of its members President, and
members shall receive the amount named in Section One for their
services. Their actual and necessary traveling expenses in the
discharge of their duties shall be itemized and approved by the
Board, and certified by the Auditor of Public Accounts, and shall
be paid as now paid to other State officials. The Board shall elect
a Secretary, who shall hold his office at the pleasure of the Board
and who shall receive for his services an annual salary not to exceed
Twenty-five hundred ($2,500) dollars, to be paid out of the Work-
men's Compensation Fund created under this Act.
Sec. 4. The Board may employ actuaries, accountants, in-
spectors, examiners, experts, clerks, physicians, stenographers
and other assistants and fix their compensation. Such employ-
ment and compensation shall be first approved by the Governor,
and shall be paid out of the Workmen's Compensation Fund
created under this Act. The Secretary, actuaries, accountants,
inspectors, examiners, experts, clerks, physicians, stenographers
and other assistants that may be employed shall be entitled to
receive from the Workmen's Compensation Fund created under
this Act their actual and necessary expenses while traveling on the
business of the Board, and the members of the Board may confer
with and meet with, officers of other States and officers of the
United States on matters pertaining to their official duties. Such
expenses shall be itemized and sworn to by the person who in-
curred the expense, and allowed by said Board.
Sec. 5. The Board shall meet every Monday for the transaction
of all business, and when necessary, the Secretary shall call said
Board together to consider and transact such business as may be
before it. All proceedings of the Board shall be shown on its
records of proceedings which shall be a public record and shall con-
tain a record of each case considered and the award made, with
respect thereto, and all voting shall be had by the calling of each
member's name by the Secretary, and each vote shall be recorded
as cast.
Sec. 6. A majority of the Board shall constitute a quorum for
the transaction of business and vacancies shall not impair the
right of the remaining members to exercise all the powers of the
full Board, so long as a majority remains. Any investigation,
inquiry or hearing which the Board is authorized to hold or under-
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take, may be held or undertaken by or before any one member of
the Board. All investigations, inquiries, hearings and decisions
of the Board, and every order made by a member thereof, when
approved by a majority of the members and so shown on the record
of its proceedings, shall be deemed to be the order of the Board.
Sec. 7. The Board shall adopt reasonable and proper rules to
govern its procedure, regulate and provide for the kind and char-
acter of notice and the service thereof, in case of accident and in-
jury to employes, the nature and extent of proof and evidence and
the methods of taking and furnishing same, to establish the rights
to benefits or compensation from the fund hereinafter provided
for, the form of application of those claiming to be entitled to
benefits or compensation therefrom; the methods of making
physical examinations and inspections and prescribe the time
within which adjudications and awards shall be made.
Sec. 8. Each member of the Board, the Secretary and every
inspector or examiner appointed by the Board, shall, for the pur-
pose contemplated by this Act, have power to administer oaths,
certify to official acts, take depositions, issue subpoenas and compel
the attendance of witnesses and the production of pertinent
books, accounts, papers, records, documents and testimony.
Sec. 9. In the case of failure or refusal of any person to comply
with the order of the commission or subpoena issued by it or one
of its inspectors or examiners, or on the refusal of a witness to
testify to any matter regarding which he may be lawfully inter-
rogated, or refuse to permit an inspection; as aforesaid, the Circuit
Judge of the county in which the person resides, on application of
any member of the commission or any inspector or examiner
appointed by it, shall compel obedience by attachment proceedings
as for contempt, as in the case of disobedience of the requirements
of a subpoena issued from such court or a refusal to testify therein.
Sec. 10. Each officer who serves a subpoena shall receive the
same fees as a sheriff, and each witness who appears in obedience
to a subpoena before a commission or inspector or examiner, op
before the Board, shall receive, for his attendance the fees and
mileage provided for witnesses in civil cases in circuit court, which
shall be audited and paid from the Workmen's Compensation
Fund, in the same manner as other expenses are audited and paid
upon the presentation of proper vouchers approved by any two
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members of the commission. No witness subpoenaed at the
instance of a party other than the commission or an inspector,
shall be entitled to compensation from the Workmen's Compensa-
tion Fund, unless the commission shall certify that his testimony
was material to the matter investigated.
Sec. 11. In an investigation, the commission may cause deposi-
tions of witnesses residing within or without the State to be taken
in the manner prescribed by law for like depositions to be used in
the circuit court.
Sec. 12. A transcribed copy of the evidence and proceedings or
any specific part thereof, on any investigation, taken by a stenog-
rapher appointed by the Commission, being certified and sworn
to by said stenographer to be a true and correct transcript of the
testimony in the investigation, or of a particular witness, or of a
specific part thereof, or to be a correct transcript of the pro-
ceedings had on said investigation's© purporting to be taken and
subscribed, may be received in evidence by the commission with
the same effect as if such stenographer were present and testified
to the fact certified. A copy of such transcript shall be furnished
on demand to any party on payment of the fee therefor, as pro-
vided for transcripts in the circuit court.
Sec. 13. The Board shall prepare and furnish, free of charge,
blank forms and provide in its rules for. their distribution, so that
the same may be readily available, of applications for benefits for
compensation from the Workmen's Compensation Fund, notice
to employers, proofs of injury or death, or medical attention, of
employment and wage earnings, and such other blanks as may be
deemed proper and advisable andit shall be the duty of employers
to constantly keep on hand a sufficient supply of such blanks.
See. 14. All persons, firms and, corporations, regularly employing
six or more persons for profit for the purpose of carrying on any
form. of industry hereinafter mentioned, in the State of Kentucky,
are employers within the meaning of this Act, and are subject to
its provisions. All persons in, the service of employers, as herein
defined, and employed' by them for the purpose of carrying on the
industries hereinafter mentioned, in whteh they are engaged
(persons casually employed, excepted), are? employes within the
meaning of this Act and subject to the provisions thereof; provided
that this Act shall not apply to employers of employes in domestic
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or agricultural service, to employe's of any employer who are em-
ployed wholly without the State, nor shall a member of a firm
of employers or any officer of a corporation employer be deemed
an employe within the meaning of this Act.
Sec. 15. The industries which are subject to this Act are clas-
sified as follows:
(1) Coal mines, including their tipples, power, light, heating and
ventilating plants, tramways, private tracks and sidings and
accessory and auxiliary plants, working in or with by-products.
(2) Paint manufactories, oil refineries, oil and gas wells including
their pipe lines, storage, power or light plants, tramways, private
tracks and sidings, and accessory and auxiliary plants working in
or with by-products.
(3) Iron and steel mills, including blast furnaces, smelters, tube
work, rolling mills, and their accessory and auxiliary plants,
working in or with by-products, and plants generating power, light
or heat, and tramways, private tracks and sidings.
(4) Sheet and tin plate mills, including their accessory and auxil-
iary plants, working in or with by-products, and plants generat-
ing power, light or heat, and tramways, private tracks or sidings.
(5) Foundries, machine shops, fire-arm factories, tool factories,
car building and repairing, structural iron works, and working in
or with iron or steel not otherwise specified, when power driven
machinery is used together with their necessary and auxiliary
plants working in or with by-products, and plants, generating
power, light or heat, and tramways, private tracks and sidings.
(6) Stamped metal works, can factories, enamel iron works, and
workings in or with sheet iron or tin plates, not otherwise specified
where power driven machinery is used, together with their acces-
sory and auxiliary plants, working in or with by-products, and
plants generating power, light or heat, and tramways, private
tracks and sidings.
(7) Logging-Logging railroads and tramways, saw mills, in-
cluding their accessory and auxiliary plants working in or with by-
products, and plants generating power, light or heat, and tram-
ways, private tracks and sidings.
(8) Planing mills, wood pulp, cordage and paper mills, box
factories, cooperage plants, furniture factories, woodenware or
wood fibre ware manufactories, vehicle works of every kind, in-
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eluding their accessory and auxiliary plants working in or with by-
products, and plants generating power, light or heat, and tram-
ways, private tracks and sidings.
(9) Glass houses of all kinds, including manufactories of table-
ware, bar goods, bottles, tumblers, glass light fixtures, parts, lamps,
window and plate glass, potteries of all kinds including tile, brick,
terra cotta, fire clay, earthenware, porcelain, china, crockery-ware
using automatic mdfehinery together with accessory and auxiliary
plants working in or with by-products, and plants generating light
or heat, and tramways, private tracks and sidings.
(9a) Glass houses of all kinds, including manufactures of table-
ware, bar goods, bottles, tumblers, gas light fixture parts, lamps,
window and plate glass, potteries of all kinds, including tile, brick,
terra cotta, fire clay, earthenware, porcelain, china and crockery-
ware, not using automatic machinery, together with accessory and
auxiliary plants working in or with by-products, and plants
generating power, light or heat, and tramways, private tracks and
sidings.
(10) Printing plants of all kinds, electrotyping, photoengraving,
engraving, lithographing, embossing, bookbinding, and accessory
and auxiliary lines of work and manufacture.
(11) Woolen mills, knitting mills, cotton mills, carpet and rug
mills, clothing manufactories of every kind and working in or
with textiles not otherwise specified.
(12) Breweries, bottling works, canneries of fruit, vegetables,
oils, fish, milk or meat, manufactories of preserves, jellies, ketchup,
sauces, relishes, pickles, flour and feed mills, bakeries, confec-
tioneries, drug and extract manufactories, tobacco, cigar and
stogie cigarette manufactories, in which power driven machinery
is used.
(13) Slaughter and packing houses, stock yards, soap, tallow,
lard and grease manufactories, tanneries, artificial ice, and re-
frigerating and cold storage plants, creameries, and carbon black
factories, in which power driven machinery is used.
(14) Steam laundries, dyeing and cleaning plants, stamping,
embossing and working with leather, shoe and harness manufac-
tories, mattresses and bedding factories, upholstering factories,
manufactories of rubber goods, and auxiliary and accessory lines
of work and manufacture not otherwise specified,
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(15) Steam and other railroads and transportation systems not
otherwise specified.
(16) Street and interurban railways, whether propelled by
electricity or other power.
(17) Telegraph and telephone plants and systems, electric light
and power plants and systems, steam heat and power plants and
systems, water works systems, gas works and systems, grain
elevators and all lighting, heating or power systems not otherwise
specified.
(18) Quarries, stone crushers, gravel pits, mines, other than coal
mines, and working with asphalt, cement, stone or other building
material not otherwise specified, power propelled ferries, sand
diggers and other water craft.
(19) Such works, occupations and manufactories specified in
the foregoing eighteen classifications as are operated without
power driven machinery.
(20) Match factories, powder mills, fire-works factories, and
works in which articles of an explosive nature are mixed or manu-
factured.
(21) Constructing of tunnels, shafts, bridges, trestles, steeples,
towers, grain elevators, tanks, water towers, wind mills, subaqueous
works, iron or steel frame structures, or parts of structures, blast
furnaces, smoke stacks, cupolas or chimneys more than fifty feet
high, waterworks and systems, electric lights and power plants
and systems, gas works systems, installation of steam boilers,
engines and dynamos, steam railroads, logging railroads, street
railways and systems, boat building with scaffolds, floating docks,
engineering works, structural work on buildings over three stories
in height, not otherwise specified, and drilling of wells.
(22) Construction and installation of sewers, fire escapes,
freight or passenger elevators, advertising signs, ornamental work
on or in buildings, metal ceilings, plate or window glass, electrical
wiring, stairways, buildings which require galvanized iron or tin
work, marble, stone or brick work, roof work, slate work, plumbing
work, carpenter work, electric work, installing automatic sprinklers,
electric or fire alarm systems, heating or ventilating systems, or
machinery not otherwise specified, covering steam pipes or boilers,
road and street making, street or other grading and structural
work not otherwise specified.
1052h bradbxjry's workmen's compensation law
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(23) Such work or occupations not specified in the foregoing
classifications in connection with which employer and employes
shall voluntarily apply to the commission for the benefit and pro-
tection of this Act. And the Board shall have the power, on or
before the first day of January and July of each year, to re-classify
the industries subject to this Act, or to create additional classifica-
tions in accordance with their respective degrees of hazard and
determine the risk of different classes and fix the rates or premiums
for each class, according to the risk of same, sufficiently large to
provide an adequate fund for the compensation provided for in this
Act and to create a surplus sufficiently large to guarantee a work-
men's compensation fund from year to year; provided that the
rate so fixed shall not exceed the maximum of one dollar and
twenty-five cents on each one hundred dollars of the gross annual
pay roll of each employer in any class for the first year after this
Act takes effect but the board may increase the rate if deemed
necessary on the first day of July or January in any year. But in
determining the rate of premium the board shall consider the
length of time during which payment to employers or dependents
under the Act may be paid; and provided that employes engaged
in the same industry shall be placed in the same class. The
premium required to be paid by employers shall be based on the
gross annual pay roll of each employer in any class. The classifica-
tion so determined and the rates of premium established, shall be
applicable for such year; or portion thereof; and provided further
that the purpose of this Act, the pay of any employe1 employed
partly within and partly without the State shall be deemed to be
such proportion of the total pay of said employe as his services
within this state bears to his service outside the same.
Sec. 16. Each employer shall furnish the Board, upon request
all the information required by it to carry out the purpose of this
Act. The Board or any member thereof, or any person employed
by the Board for that purpose shall have the right to examine
under oath, any employer or officer, agent or employ6 thereof.
Sec. 17. Within thirty days from the organization of the Board,
every employer subject to this Act shall notify the commission of
such fact. The Board shall prepare blank reports for the use of
and furnish same to employers subject to this Act, and every
employer receiving from the commission any blank, or blanks,
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Kentucky
with directions for filling out and returning same, shall return the
same filled out, so as to answer fully and correctly all pertinent
questions there propounded, and if unable to do so, shall give good
and sufficient reason for such failure. Answers to such questions
shall be verified under oath, and returned to the commission
within the period fixed by the commission for such return.
Sec. 18. Every employer shall furnish the Board upon request
all information required by it to carry out the purposes of this Act.
In the month of January of each year, every employer subject to
the Act shall prepare and mail to the Board at its main office in
the City of Frankfort, Kentucky, a statement containing the
following information, viz: The number of employes employed
during the preceding year from January first, to December thirty-
first, inclusive; the number of such employes employed at each
kind of employment and the aggregate amount of wages paid to
such employes, which information shall be furnished on a blank
or blanks to be furnished by the Board and it shall be the duty of
the Board to furnish such blanks to employers free of charge, upon
request therefor. Every employer receiving from the Board any
blanks with directions to fill out same shall cause the same to be
properly filled out so as to answer fully and correctly all pertinent
questions therein propounded and to give all the information
therein sought, or if unable to do so, he shall give to the Board, in
writing, good and sufficient reasons for such failure. Any employer
who shall fail, or refuse to furnish to the Board the annual state-
ment herein required, or who shall fail or refuse to furnish such
other pertinent information as may be required by the Board, as
provided by this section, shall be liable to a penalty of not exceed-
ing five hundred dollars ($500) to be collected in a civil action
brought against said employer in the name of the State. All such
penalties, when collected, shall be paid into the Workmen's Com-
pensation Fund and become a part thereof.
Sec. 19. The information contained in the annual report pro-
vided for in the preceding section, and such other information as
may be furnished to the Board by employers, in pursuance of the
provisions of any section hereof, shall be for the exclusive use and
information of said Board in the discharge of its official duties,
and shall not be open to the public; nor be used in any court in the
action or proceeding, but the information contained in said report
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may be tabulated and published by the department in statistical
form for the use and information of other State departments and
the public. Any person who shall divulge any information secured
by him while a member of the Board or an employe1 thereof in
respect to the transactions, property or business of any company,
firm, corporation, person, association or co-partnership, to any
person other than the members of the Board, shall be fined not
less than one hundred dollars ($100) nor more than five hundred
dollars ($500), and shall thereafter be disqualified from holding
any appointment or employment with the Board.
Sec. 20. The commission shall establish a Workmen's Compen-
sation Fund from the premiums paid thereto by the employers
based on the pay rolls of such employers that have paid the pre-
miums applicable to the class to which they belong, and for the
benefit of the dependents of such employes, and shall adopt rules
and regulations with respect to the collection, maintenance and dis-
bursement of said fund, not in conflict with the provisions of this
Act.
Sec. 21. The Board shall keep an accurate account of the money
paid in premiums by each of the several classes of occupations or
industries and the disbursements on account of injuries and deaths
of employes thereof and the disbursements for salaries and ex-
penses, and it shall also keep an account of the money received
from each individual employer, and the amount disbursed from the
Workmen's Compensation Fund on account of injuries and death
of the employes of such employers should any money remain to
the credit of any class, at the end of any year, after disbursements
on accounts of deaths of and injuries to employers * of that class
during such year, such remainder not exceeding ten per cent of
the money paid into said fund on account of such class shall be
set aside for the creation of a surplus, until the surplus shall be
sufficiently large to guarantee a Workmen's Compensation Fund
for such class. But claims for the benefits under this Act shall
always have priority over the surplus fund.
Sec. 22. On the first of July, 1915, and semi-annually thereafter,
a readjustment of the rates shall be made for each of the several
classes of occupation or industry, which in the judgment of the
1 Evidently intended for employes.
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Board, have developed an average loss ratio in accordance with
the experience of the Board in the administration of law, as shown
by the accounts kept, as provided herein.
Sec. 23. The Treasurer of the State shall be the custodian of the
Workmen's Compensation Fund, and all disbursements therefrom
shall be paid by him upon vouchers furnished by the Workmen's
Compensation Board, and sighed by any two members of the
Board, or such vouchers may bear the facsimile signature of the
Board members printed thereon, and the signature of the Secretary
of said Board.
Sec. 24. The State Treasurer shall give a separate and additional
bond, in such amount as may be fixed by the Governor with sureties
to be approved by him conditioned on the faithful performance
of his duties as custodian of the Workmen's Compensation Fund.
Sec. 25. The State Treasurer is hereby authorized to deposit
any portion of the Workmen's Compensation Fund, not needed for
immediate use, in the same manner and subject to all provisions
of law with respect to the deposit of State funds by such Treasurer,
and all interest earned by such portion of the Workmen's Compen-
sation Fund as may be deposited by said Treasurer, in pursuance
of authority herein given, shall be collected by him and placed to
the credit of such fund.
Sec. 26. The Workmen's Compensation Board shall have the
power to invest any surplus or reserve belonging to the Workmen's
Compensation Fund in bonds of the United States, State of
Kentucky, or of any county, city, school-district or taxing district
of the State of Kentucky, at current market prices of such bonds,
provided that such purchase be authorized by resolution adopted
by the Board and approved by the Governor.
Sec. 27. Every employer subject to this Act who shall elect to
pay into said Workmen's Compensation Fund and receive the
benefit of this Act shall, on or before the 1st day of January, 1915,
and monthly thereafter in advance, and on or before the 10th day
of each month, beginning March 10th, 1915, pay into the said
Workmen's Compensation Fund the amount of premiums so paid
by each employer to be determined by the classification, rules and
rates made and prepared by the Board, and a receipt or certificate,
certifying that such payment has been made, shall immediately
be mailed to such employer by the Workmen's Compensation
10521 bradbuby's workmen's compensation law
Kentucky
Board, which receipt or certificate, attested by the seal of the
Board shall be prima facie evidence of the payment of such prem-
ium.
Sec. 28. In order to create a fund available on the application
of this Act as aforesaid on the first day of January, 1915, the pay-
ments for the months of January, February and March, 1915,
inclusive, shall be made on or before the first day of January, 1915,
and be preliminarily based upon the pay roll of the operations of
any three months between July, 1914, and January, 1915, to be
selected by the said Board. If any employer be found to have
overpaid for such three months, he may deduct such overpayment
from the first monthly payment to the fund. If any employer be
found to have under paid for such three months, he shall pay the
deficiency made by him after the end of said three months. Every
employer electing to pay into said Workmen's Compensation
Fund after January 1, 1915, shall pay into said fund three months
in advance the amount of premium to be based preliminarily upon
such employers' pay roll for the three months preceding the appli-
cation; any over payment to be credited on his first monthly pay-
ment after the expiration of said three months and any under pay-
ment to be made up by him upon his first monthly payment as
hereinbefore provided with respect to employers who elect to pay
in to said fund on or before January 1st, 1915; and the Board shall
make proper rules and regulations to carry this provision into effect
and for cases where the employer has had no pay roll preceding
his application.
Sec. 29. It shall be lawful for any employe* subject to this Act,
including persons under twenty-one years of age to contract with
any employer subject to this Act who elects to pay the premiums
herein provided to be paid into said Workmen's Compensation
Fund, to accept the compensation provided to be paid to injured
employes and the dependents of ;those killed, and to accept the
benefits conferred on employes by this Act, in lieu of any cause of
action which he might have, if injured, or that his representative
might have if he was thereafter killed through the negligence of
such employer, of the negligence of his agents, servants, officers
or employes, and to waive all causes of action against such em-
ployer conferred by the Constitution or Statutes of this State or
by the common law for his injury or death, occurring through the
TEXTS OF COMPENSATION ACTS OF AMERICAN STATES 1052m
Kentucky
negligence of the employer or his agents and such contract shall
be binding upon the employer and upon the employe- and upon his
heirs, personal representatives and all persons claiming under or
through him.
Sec. 30. Such a contract between an employe" and his employer
shall be conclusively presumed to have been made in every case
where an employer has elected to pay into the Workmen's Com-
pensation Fund, if said employe" shall continue to work for said
employer thereafter, with notice that the employer has elected
to pay into said fund and the posting of printed or typewritten
notices in conspicuous places about the employer's place of busi-
ness at the time of the elections of such employer to pay into the
Workmen's Compensation Fund that he has elected to pay into
said Workmen's Compensation Fund shall constitute sufficient
notice to all such employer's employes then or thereafter employed
of the fact that he has made such an election, and the continuance
in the service of such employers shall be deemed a waiver by the
employe" of his rights of action, as aforesaid. Except as provided
in Section 32.
Sec. 31. Any employer subject to this Act, electing to pay into
the Workmen's Compensation Fund, the premiums provided for
by this Act, shall not be liable to respond in damages at common
law or by statute for the injury or death or loss of service of any
employe" occurring through the negligence of such employer, or his
agent, servants, officers, or employes, during any period of time
in which such employer shall not be in default in the payment
of such premiums. Provided, that the injured employe has re-
mained in the service after notice is posted as provided in Sec-
tion 31, that his employer has elected to pay into the Workmen's
Compensation Fund the premiums provided by this Act. The
continuance in the service of such employer or accepting service
after such notice shall have been posted, shall be deemed a waiver
by the employe" of his rights of action, as aforesaid. Except as in
Section 32.
Sec. 32. Any employe" prior to receiving an injury may give
notice to an employer who has elected to pay into said fund, that
he will not accept the benefits of this Act and waive his rights of
action as herein provided. Such notice shall be in writing and
served on the employer as provided by the Civil Code for the
1052n bradbury's workmen's compensation law
Kentucky
service of notices, and a copy thereof shall be mailed by the em-
ploye to the Workmen's Compensation Board. If thereafter such
employ 6 shall be injured or killed while employed by such employer
who has elected to pay into the said Workmen's Compensation
Fund, and an action shall be instituted against such employer to
recover damages for the injury or death of such employe, it shall
be sufficient defense thereto and shall bar recovery if the injury
of said employe was caused by or contributed to by the negligence
of any other employe" of said employer, or if the injury was due
to any of the ordinary hazards, or risks of the employment, or
if due to any defect in the tools, machinery, appliances, instrumen-
tality or place of work, if the defect was known or could have been
discovered by the injured employe by the exercise of ordinary care
on his part, or was not known or could not have been discovered by
the employer by the exercise of ordinary care in time to have
prevented the injury nor in any event, if the negligence of the
injured employe" contributed to such injuries. But nothing herein
shall deprive such employer of any defense not herein mentioned.
If the employer is not in default in payment of premiums and a
recovery shall be obtained against him in such action, the said
Board shall pay on said judgment not exceeding a sum equal to the
amount which the said injured employe or his dependents in case
of death, would have been entitled to recover if he had elected to
accept the benefit of this Act, and the employer shall receive credit
on said payment for the payment made by the Board. Such
employ^, at any time, after he has elected not to accept the benefits
of this Act and waive his right of action, as in this Act provided,
may withdraw such election and come under the provisions of
this Act and accept its benefits and waive his right of action as
herein provided, by giving written notice to his employer and to
the Board; and shall thereafter occupy the same position as if he
had originally elected to accept the benefits of this Act and waive
his cause of action, provided, that such withdrawal of his election
not to accept the benefits of this Act shall not affect claims for
damages against his employer on account of injuries theretofore
received; nor entitle such injured employe to be paid anything out
of the Workmen's Compensation Fund on account of prior injury.
Sec. 33. The Commission shall disburse the Workmen's Com-
pensation Fund to such employes within the meaning of this Act}
TEXTS OF COMPENSATION ACTS OF AMERICAN STATES 1052o
Kentucky
of employers as have paid into such fund the premiums for the
period in which the injury occurs, applicable to the class to which
they belong that shall have received injuries in this State in the
course of and resulting from their employment, or to the depend-
ents, if any, of such employes, in case of his death, according to
the provisions hereinafter made.
Sec. 34. All employers subject to this Act who shall elect not
to pay into the Workmen's Compensation Fund the premiums
provided by this Act, or having elected to pay shall be in default
in the payment of same shall be liable to their employes within the
meaning of this Act, for damages by reason of personal injuries
sustained in the course of employment caused by the wrongful act,
neglect or default of the employer, or any of the employer's officers,
agents or employers,1 and also to the personal representatives of
such employe1 and in any action by any such employ^ or personal
representative thereof, such defendant shall not avail himself of
the following defenses. The defense of the fellow servant; the
defense of the assumption of risk, or the defense of contributory
negligence.
Sec. 35. The commission shall disburse and pay from the fund
in addition to any such amounts as they may be entitled thereto
under this Act, such amounts for medical, nurse and hospital
services and medicine as it may deem proper, not, however, in
any case to exceed the sum of One Hundred Dollars ($100) in
addition to such awards to such employes; payment to be made to
the employer to the persons who may have furnished the services
and supplies or to the persons who may have advanced payment
for the same, as the commission shall deem proper. Provided, that
in case any injured employ^ be entitled, under the contract con-
nected with his employment, or otherwise, to hospital or medical
services without further charge to him, no payment shall be made
out of the Workmen's Compensation Fund for hospital or medical
services.
Sec. 36. Notwithstanding anything hereinbefore or hereafter
contained, no employe1 or dependent of any employe1 shall be
entitled to receive any sum from the Workmen's Compensation
Fund on account of any injury to or death of an employe* caused
1 Evidently intended for employes.
1052p bkadbtjky's workmen's compensation law
Kentucky
by a self-inflicted injury, wilful misconduct or intoxication of such
employed If injury or death results to an employe" through the
deliberate intention of his employer to produce such injury or
death, the employ6, the widow, widower, children or dependents
of the employe" shall have the privilege to take under this Act,
or in lieu thereof, to have a cause of action against the employer as
if this Act had not been enacted for such damages as may be sus-
tained by such employe, his personal representative or dependent.
Provided, that if a suit is brought under this section, the right
to participate in said Workmen's Compensation Fund on account
of such injury, shall be waived and void as to all persons, and if a
claim is made for compensation from said Workmen's Compensa-
tion Fund, all rights to sue the employer for damages for such
injury shall be waived and void.
Sec. 37. In case death ensues from the injury received reasonable
funeral expenses, not to exceed seventy-five dollars ($75.00), shall
be paid from the fund to the personal representative, to the em-
ploy^, or to such other person as shall have advanced the same,
in addition to such award to the employe's dependents.
Sec. 38. No benefit shall be allowed for one week after injury
is received, except the disbursements provided for in Section 35.
Sec. 39. In case of temporary total disability the employe" shall
receive fifty per cent of his average weekly wages, so long as such
disability is total, not to exceed a maximum of Twelve Dollars
($12.00) a week, and not less than a minimum of Five Dollars
($5.00) a week, unless the employees weekly wages shall be less
than Five Dollars ($5.00) a week, in which event, he shall receive
compensation equal to his full wages, but in no case to continue
for more than six years from the date of the injury, or to exceed
Three Thousand Seven Hundred and Fifty Dollars ($3,750.00).
Sec. 40. In case of injury resulting in partial disability the em-
ploye shall receive fifty per cent of the impairment of his earning
capacity during the continuance thereof, not to exceed a maximum
of Twelve Dollars ($12.00) a week or an aggregate sum of more than
Three Thousand Seven Hundred and Fifty Dollars ($3,750.00).
In cases including the following schedule, the disability in each
case shall be deemed to continue for the period specified, and the
compensation so paid for such injury shall be as specified herein,
to-wit:
TEXTS OP COMPENSATION ACTS OF AMERICAN STATES 1052q
Kentucky
For the loss of a thumb, fifty per cent of the average weekly
wages during sixty weeks.
For the loss of a first finger, commonly called the index finger
fifty per cent of the average weekly wages during thirty-five weeks.
For the loss of a second finger, fifty per cent of the average
wages during thirty weeks. For the loss of a fourth finger, com-
monly known as the little finger, fifty per cent of the average
weekly wages during fifteen weeks. The loss of the second, or distal
phalange, of the thumb, shall be considered to be equal to the loss of
one-half of such thumb; the loss of more than one-half of such thumb
shall be considered to be equal to the loss of the whole thumb.
The loss of the third, or distal phalange, of any finger shall be
considered to be equal to the loss of one-third of such finger.
The loss of the middle, or second phalange, of any finger shall
be considered to be equal to the loss of two-thirds of such finger.
The loss of more than the middle and distal phalanges of any
finger shall be considered to be equal to the loss of the whole
finger; provided, however, that in no case will the amount received
for more than one finger exceed the amount provided in this
schedule for the loss of a hand.
For the loss of a metacarpal bone (bone of palm) for the corre-
sponding thumb, finger, or fingers above, add ten weeks to the
number of weeks as above.
For ankylosis (total stiffness of) or contractures (due to scars or
injuries) which makes the fingers more than useless, the same num-
ber of weeks applied to such finger or fingers (not thumb) as given
above.
For the loss of a hand, fifty per cent of the average weekly
wages during one hundred and fifty weeks.
For the loss of an arm, fifty per cent of the average weekly
wages during two hundred weeks.
For the loss of one of the toes, other than the great toe, fifty
per cent of the average weekly wages during ten weeks.
For the loss of the great toe, fifty per cent of the average weekly
wages during thirty weeks.
The loss of more than two-thirds of any toe shall be considered
equal to the loss of the whole toe.
The loss of less than two-thirds of any toe shall be considered
equal to the loss of one-half toe.
1052r beadbury's workmen's compensation law
Kentucky
For the loss of a foot, fifty per cent of the average weekly wages
during one hundred and twenty-five weeks.
For the loss of a leg, fifty per cent of the average weekly wages
during two hundred weeks.
For the loss of an eye, fifty per cent of the average weekly wages
during one hundred weeks.
The amounts specified in this clause are all subject to the limita-
tions as to the maximum weekly amount payable as hereinbefore
specified in this action.
For the loss of a third finger, fifty per cent of average weekly
wages during twenty weeks.
Sec. 41. In case of permanent total disability the award shall
be fifty per cent of the average weekly wages and shall continue
until the death of such persons so totally disabled, but not to
exceed a maximum of twelve dollars ($12.00) per week and not
less than a minimum of five dollars ($5.00) per week, at the time
of the injury, in which event he shall receive compensation in an
amount equal to his average weekly wages. The loss of both
hands or both arms, or both feet or both legs, or both eyes, or any
two thereof, shall prima facie constitute total and permanent
disability to be compensated according to the provisions of this
section.
Sec. 42. In case the injury causes death within the period of two
years, the benefits shall be in the amount and to the persons
following:
Sub-Sec. 1. If there are no dependents the disbursements from
the Workmen's Compensation Fund shall be limited to the expense
provided for in Sections 35 and 37. And the said Board shall
have the sole right of action to recover from an employer who has
elected to pay into said fund who is not in default in the payment
of premiums for the death of an employe leaving no dependent
caused by negligence of such employer or his employes or agents.
Sub-Sec. 2. If there are wholly dependent persons at the time of
death, the payment shall be fifty per cent of the average weekly
wages and to continue for the remainder of the period between the
date of death and six years after the date of the injury and not
to exceed the maximum of three thousand seven hundred and
fifty dollars ($3,750.00) nor less than the minimum of one thousand
five hundred dollars ($1,500.00).
TEXTS OF COMPENSATION ACTS OF AMERICAN STATES 1052s
Kentucky
Sub-Sec. 3. If there are partly dependent persons at the time
of death, the payment shall be fifty per cent of the average weekly
wages and to continue for all or such portion of the period of six
years after the date of injury, as the Board in such case may
determine, and not to amount to more than a maximum of three
thousand seven hundred and fifty dollars ($3,750.00).
Sub-Sec. 4. The following persons shall be presumed to be wholly
dependent for support on a deceased employed (a) A wife upon a
husband with whom she lives at the time of his death, (b) A child,
or children under the age of sixteen years (or over sixteen years,
physically or mentally incapacitated from earnings) upon the
parent with whom she is living at the time of the death of such
parent. In all other cases the question of dependency in whole
or in part shall be determined in accordance with the facts in each
particular case of such employe- but no persons shall be considered
as a dependent unless a member of the family of the deceased
employe^ or bears to him the relation of widower or widow, lineal
descendants, ancestors or brother or sister. The word "child"
as used in this act, shall include a posthumous child, and a child
legally adopted prior to the injury.
Sec. 43. The benefits in case of death shall be paid to such one
or more of the dependents of the deceased for the benefit of all
the dependents as may be determined by the Board, which may
apportion the benefit among the dependents in such manner as
it may deem just and equitable. Payment to a dependent sub-
sequent in right may be made, if the Board deems it proper, and
shall operate to discharge all other claims therefor. The dependent
or person to whom benefits are paid, shall apply the same to the
use of the several beneficiaries thereof, according to their respective
claims upon the decedent for support in compliance with the
finding and direction of the Board. In all cases of death where
the dependents are a widow and one or more minor children, it
shall be sufficient for the widow to make application to the Board
on behalf of herself and minor children and in cases where all the
dependents are minors, the application shall be made by the
guardian of such minor dependent or dependents. The persons
and classes of persons by this act specified shall be deemed to be
the sole dependents of such employed and no other person or class
of persons shall receive any benefit from the fund hereby credited.
1052t bradbtjry's workmen's compensation Law
Kentucky
And should any employe" leave surviving him no such dependent,
the amount that would be due and payable to his dependents, had
any survived him, shall be paid, or credited to the Workmen's
Compensation Fund to the credit of the class to which such em-
ploys belonged.
Sec. 44. The average weekly wages of the injured person at the
time of the injury, shall be taken as the basis upon which to com-
pute benefits.
Sec. 45. Whenever the Board shall find that an employe" has
been injured without fault on his part while in the course of his
employment, through the negligence of the employer in the failure
to discharge a non-delegable duty, the Board may require such
employer to pay an additional premium into said Workmen's
Compensation Fund equal to an amount not exceeding ten per
cent of the sum awarded by the Board to such injured employe"
or his dependents. Said premium shall be paid within thirty days
after the order is made. Before making an order to pay such
additional premium, the Board shall give ten days' notice in
writing, to the employer, to show cause against the order.
Sec. 46. Whenever the Board shall find that an employe" has
received an injury in the course of his employment, through the
fault of his employer in failing to comply with any statute for the
protection of employ6s, the Board shall fix a day on which the
employer may appear before the Board and show any cause he
may have against said finding, or against the Board awarding the
additional sum herein provided, ten days' notice in writing, shall
be given the employer of the time and place of said hearing. If
no sufficient cause is shown by the employer against the finding
of the Board, it shall enter an order to that effect and the employer
shall, within ninety days, pay into and for the benefit of the
Workmen's Compensation Fund a sum to be fixed by the Board
in its order not to exceed an amount equal to twenty-five per cent
of the amount awarded to the said injured employe" or his depend-
ents, under Sections 39 to 42 of this Act. Said payment shall be
made by the employer in a lump sum.
Sec. 47. In case any minor employe" who is illegally employed
shall be injured or killed, in the course of his employment, his
statutory guardian or his representative, if the infant is killed, may
claim compensation under the terms of this Act or sue as though
texts of compensation acts op American states 1052u
Kentucky
this Act had not been passed. In the event claim is made for the
injury or death of such infant or compensation from the said
Workmen's Compensation Fund, the Board shall in addition to
the sum awarded and payable from the Workmen's Compensation
Fund award an equal amount against the employer of said infant
not to exceed the sum of two thousand dollars ($2,000.00). The
amount awarded against him shall be paid by the Board to the
said infant or to his guardian, or representative if the infant is
killed, in installment, or in a lump sum as the Board may determine
as provided for the payment of awards from the said Workmen's
Compensation Fund. Before any order is made requiring an
employe1 to pay any sum to the guardian or to the representative
of such infant, under this section of the claim, to compensation
under this section, notice of the time and place of the hearing of
said claim by the Board, shall be given to the employer and the
employer shall have the right to be heard and to introduce evidence
on the question of his liability.
Provided, that a claim made to compensation from said Work-
men's Compensation Fund by the guardian of the infant or his
personal representative, if the infant is killed, shall be a waiver
and bar of all rights of action on account of said injury to said
infant, and the institution of an action by the guardian or repre-
sentative of the infant, shall be a waiver of the right to compensa-
tion from said Workmen's Compensation Fund.
Sec. 48. Should a further accident occur to an employe1 receiving
periodical payments under this Act, for a temporary disability,
or who has been previously the recipient of a lump sum payment
under this Act, his future compensation shall be adjusted according
to the other provisions of this Act with reference to the combined
effect of his injuries and his past receipt of money, under this Act.
Sec. 49. The powers and jurisdiction of theBoard, over each and
every case shall be continuing, and it may from time to time make
such modifications or changes with respect to former findings or
orders with respect thereto, as in its opinion, may be justified.
Sec. 50. The Board, under special circumstances and when the
same is deemed advisable, may commute periodical benefits to
one or more lump sum payments.
Sec. 51. Compensation before payment shall be exempt from
all claims of creditors and from any attachments, executions or
I052v Bradbury's workmen's compensation law
Kentucky
lien, and shall be paid only to such persons as shall be entitled to
take under this Act, and any assignment of such claims shall be
void.
Sec. 52. The Board shall have full power and authority to hear
and determine all questions within its jurisdiction and its decision
thereon shall be final. Provided, however, in case the final action
of such Board denies the right of the claimant to participate at
all in such fund on the ground that the accident did not arise in
the course of employment, or upon any other ground going to the
basis of the complainant's right, then the claimant, within thirty
days after notice of the final action of the Board, may file a petition
against the Board in the circuit court of the county wherein the
injury was inflicted, asserting his rights therein, to participate
in said fund. In such action, the Commonwealth's Attorney and
the County Attorney, in the circuit court, and the Attorney
General in the Court of Appeals, if the case is appealed, shall rep-
resent the Workmen's Compensation Board, said action shall
proceed as ordinary actions in the circuit court, and if the court
shall find and adjudge that the plaintiff is entitled to participate
in such fund, the Board shall fix his compensation within the
limits and under the rules prescribed in this Act. Such action
shall have the same precedence on the trial dockets of the circuit
court and the Court of Appeals, as election contest cases now have.
Sec. 53. The Workmen's Compensation Board shall not be
bound by the usual common law for statutory rules of evidence or
by any technical or formal rules of procedure other than as herein
provided; but may make the investigation in such manner as in
its judgment is best calculated to ascertain the substantial rights
of the parties and to carry out justly the spirit of this Act.
Sec. 54. A minor legally employed shall be deemed sui juris for
the purpose of this Act, and no other person shall have any cause
of action or right to compensation for an injury to such minor
workmen or loss of service on account thereof, but in the event of
the award of a lump sum of compensation to such minor employe^
such sum shall be paid only to the legally appointed guardian of
such minor.
Sec. 55. No agreement by an employe" to waive his rights to
compensation under this Act shall be valid. No agreement by
an employe" to pay any portion of the premium paid by his em-
TEXTS OF COMPENSATION ACTS OF AMERICAN STATES 1052w
Kentucky
ployer into the Workmen's Compensation Fund shall be valid, and
any employer who deducts any portion of such premium from
the wages or salary of any employ^ entitled to the benefits of this
Act shall be guilty of a misdemeanor and upon conviction thereof,
shall be fined not more than one hundred dollars ($100.00) for
each such offense.
Sec. 56. Any employ^ claiming the right to receive compensa-
tion under this Act may be required by the Board or its chief
medical examiner, to submit himself for medical examination at
any time and from time to time at a place reasonably convenient
for such employe, and as may be provided by the rules of the
Board. If such employ6 refuse to submit to any such examination
or obstruct the same, his right to have his claim for compensation
considered, if his claim be pending before the Board, or to receive
any payment for compensation theretofore granted, shall be sus-
pended during the period of such refusal or obstruction.
Sec. 57. All books, records and pay rolls of the employers of the
State, showing or reflecting in any way upon the amount of wage
expenditure of such employers, shall always be open for inspection
by the Board of any of its traveling auditors, inspectors, or assist-
ants, for the purpose of ascertaining the correctness of the wage
expenditure, the number of men employed and such other pertinent
information as may be necessary for the uses and purposes of the
Board in its administration of the law. Refusal on the part of any
employer to submit his books, records and pay rolls for the inspec-
tion of any member of the Board or traveling auditor, inspector
or such assistant presenting written authority from the Board,
shall subject such employer to a penalty of one hundred dollars
for each offense, to be collected by civil action in the name of the
State, and paid into the Workmen's Compensation Fund to be-
come a part thereof.
Sec. 58. Any employer who fraudulently misrepresents to the
Board the amount of pay roll upon which the premium under this
Act is based, shall be liable to the State in ten times the amount
of the difference in premium paid and the amount the employer
should have paid. The liability of the Board under this section
shall be enforced in a civil action by the Board and all sums
collected under this section shall be paid into the Workmen's
Compensation Fund.
1052x bradbury's workmen's compensation law
Kentucky
Sec. 59. The provisions of this Act shall apply to employers and
their employes engaged in intra-state and also in inter-state and
foreign commerce for whom a rule or liability or method of com-
pensation has been or may be established by the Congress of the
United States, only to the extent that their mutual connection
with the intra-state work may and shall be clearly separable and
distinguishable from inter-state or foreign commerce, and then
only when such employer and any of his workmen working in
this State, with the approval of the Board and as far as not for-
bidden by any Act of Congress, voluntarily accept the provisions
of this Act, by filing written acceptances, which, when filed with
and approved by the Board, shall subject the acceptors irre-
vocably to the provisions of this Act to all intents and purposes and
as if they had been originally included in its terms, during a period
or periods for which the premiums herein provided have been paid.
Payment of premiums shall be on the basis of the payroll of the
workmen who accept, as aforesaid.
Sec. 60. Every employer shall keep a record of all injuries, fatal
or otherwise, received by his employes in the course of their em-
ployment. Within a week after the occurrence of an accident
resulting in personal injury, a report thereof shall be made in
writing to the Workmen's Compensation Board upon blanks to be
procured from the Board for that purpose. Such report shall
contain the name and nature of the business of the employer,
the location of his establishment or place of work, the name,
address and occupation of the injured employe^ and shall state
the time, the nature and cause of injury and such other pertinent
information as may be required by the Board. Any employer
who refuses or neglects to make any report required by this section,
shall be punished by a fine of not more than five hundred dollars
($500.00) for each offense. An injured employe, if he is able so to
do, and the attending physician, whether the injury results in the
death of such employe" or not, and within one week from the time
of such injury or death, shall give written notice to the employer
and the Board of such injury, stating the nature and extent thereof,
the time and place of its occurrence, the name, address, and
occupation of such injured employ^, and the names and addresses
of the persons present at the time of the injury, so far as such
names and addresses are known, or can be obtained. Any em-
TEXTS OF COMPENSATION ACTS OF AMEBICAN STATES l052y
Kentucky
ployes or physician failing or refusing to make report as by this
section required, shall be punished by a fine not exceeding twenty-
five dollars ($25.00). And the Board may in its discretion, if such
injured employe^ or his dependents are subsequently found to be
entitled to any payments out of the compensation fund, deduct
any amount, not exceeding said sum of twenty-five dollars ($25.00)
from the benefits payable hereunder, or from the amount that
might otherwise be paid to said attending physician, should such
physician fail to make such report.
Sec. 61. Upon the request of the Board, the Attorney General,
or under his direction, the County or Commonwealth's Attorney
of any county shall institute and prosecute the necessary actions
or proceedings for the enforcement of any of the provisions of this
Act, or for the recovery of any money due the Workmen's Compen-
sation Fund, or any penalty herein provided for, arising within the
county in which he was elected and shall defend in like manner all
suits, actions or proceedings brought against the Board or the
members thereof in their official capacity.
Sec. 62. All judgments contained in any action prosecuted: by
the Board under the authority of this Act, shall have the same
preference against the assets of the employer as is now or may be
hereafter allowed by law on judgments rendered for claims for
taxes.
Sec. 63. If any employer shall default in any payment required
to be made by him to the Workmen's Compensation Fund, the
amount due by him shall be collected by civil action against him
in the name of the Board as plaintiff. Such actions may be brought
either in the Franklin Circuit Court or in the Circuit Court in the
county in which the defendant resides or has his principal place of
business.
Sec. 64. Annually on or before the fifteenth day of December
such Board shall make a report to the Governor for the preceding
fiscal year, which shall include a statement of the number of
awards made by it, a general statement of the cause of accident
leading to the injuries for which the awards were made and detailed
statement of the disbursements from the expense fund and the
condition of its respective funds, together with any other informa-
tion which the Board deems proper to call to the attention of the
Governor, including any recommendations it may have to make,
1032z bradbury's workmen's compensation law
Kentucky
and it shall be the duty of the Board from time to time to publish
and distribute among employers and employes such general in-
formation, as to the business transacted by the department as in
its judgment may be useful.
Sec. 65. The Board shall cause to be printed in proper form for
distribution to the public, its classifications, rates, regulations and
rules of procedure, and shall furnish the same to any person upon
application therejjpr, and the fact that such classifications, rates,
rules, regulations and rules of procedure are printed ready for
distribution to all who may apply for same, shall be sufficient
publication of the same, as required by this Act.
Sec. 66. If any employer shall be adjudged to be outside the
lawful scope of this Act, the Act shall not apply to him or his
employes: or if the employe" shall be adjudicated to be outside the
lawful scope of this Act, because of the remoteness of his work
from the hazard of his employer's work, such adjudication shall
not impair the validity of this Act in other respects, and every
such case as accounting, according with the justice of the case,
shall be had of the moneys received. If the provisions of this Act
for the creation of the fund or the provision of the Act authorizing
employes to waive causes of action against employers for injuries
received in the course of their employment and making compensa-
tion to the employes and their beneficiaries provided in this Act
exclusive of any other remedy on the part of the employ6, shall be
held invalid, the entire Act shall thereby be invalidated and an
accounting according to the justice of the case shall be had of
money received. In other respects an adjudication of the validity
of any part of this Act shall not affect the validity of this Act as a
whole or any part thereof.
Sec. 67. If a single establishment or works comprises several
occupations listed in Section 15 in different risk classes the pre-
mium shall be computed according to the pay roll of each occupa-
tion if the occupations are clearly separable; otherwise an average
rate of premium shall be charged for the entire establishment tak-
ing into consideration the number of employes and the relative
hazards of the employes in the several occupations.
Sec. 68. If the employe of an employer who has elected to accept
the provisions of this Act, is injured by the negligence or wrong of
another person not in the same employment, the injured employe^
TEXTS OF COMPENSATION ACTS OF AMERICAN STATES 1052aa
Kentucky
or if death resulted from the injury, his dependents, as the case may
be, shall elect whether to take under Act or seek a remedy against
such other persons, such election to be in advance of instituting
any suit; and, if he take under this Act, the cause of action against
such other person shall be and is hereby assigned to the Board for
the benefit of the compensation fund; if the other choice is made,
the compensation fund shall contribute only the deficiency, if
any, between the amount of recovery against such third person
actually collected and the amount of compensation provided by
this Act for such case. If such injury is due to the joint negligence
of his employer and any other person not in the same employment,
and the injured employe^ or in case of death resulting from the
injury, his dependents, as the case may be, shall have elected to
take compensation under this Act, the causes of action against the
other joint tort feasor shall be and is hereby assigned to the Board
for the benefit of the compensation fund.
Any cause of action, so assigned to the Board, may be prosecuted
or compromised, in the discretion of the Board. Any compromise
by the injured employe or his dependent, in the case of death, of
any such suit, which would leave a deficiency to be made good out
of the compensation fund, shall be made only with the written
approval of the Board.
Sec. 69. This Act shall not affect any section pending or cause
of action existing on the 31st day of December, 1914.
Sec. 70. Notwithstanding anything in this Act, any employer
filing notice with the Workmen's Compensation Board, of his
intention so to do, and upon furnishing satisfactory proof to said
Board of his solvency and financial ability to pay the compensation
and benefits hereinbefore provided, may make said payments
direct to his employes as they may be entitled to receive same under
the terms and conditions of this Act, and any employer electing
to administer the compensation fund direct to his employes shall
have the benefit of all the provisions of this Act as though said
fund were paid into and administered by said Board.
Sec. 71. Nothing in this Act shall prevent any employer carrying
his own risk from insuring his liability in any liability company
authorized to do business in this State, provided the amounts to
be paid are not less than that provided in this Act.
Sec. 72. In case any employer carrying his own risk cannot agree
1052bb bradbury's workmen's compensation law
Kentucky
with an employ^ on the payments as provided for in this Act, such
employe shall have the right to submit his claim in writing within
sixty days to the Workmen's Compensation Board, and it shall
be the duty of the Board to delegate one of its members to investi-
gate said claim and endeavor under the provisions of this Act to
reach a satisfactory settlement of the claim. In event the final
action of the members of the Board denies the right of the claimant
to participate in the fund as provided in Section 52, then the claim-
ant may proceed as provided in Section 52, and compensation, if
awarded the claimant, shall be fixed as provided in Section 52, and
in the event the employer feels that the award should not have
been granted, he shall have the right of appeal to the circuit court
. and from the circuit court as in other cases.
Sec. 73. The application of this Act, as between employers and
employe, shall date from and include the first day of January,
1915.
Sec. 74. Every employer subject to this Act who shall on or
before November 1, 1914, elect not to pay into said Workmen's
Compensation Fund and receive the benefits, hereof, shall on or
before the first day of November, 1914, so notify the Board in
writing, and any such employer not so notifying the Board shall
on or before January 1st, 1915, pay into the fund the premiums
as provided for in Section 27, hereof. Employers who elect to
accept the benefits hereof, and pay into said Workmen's Compen-
sation Fund, may at the time fixed for making any such payments,
withdraw from the benefits hereof, and thereafter be relieved from
further payments, but notice of such withdrawal shall be served
on the Board and posted by written or printed notices in at least
three conspicuous places about his plant. Such employer, may,
however, at any time thereafter again elect to come under the
provisions hereof by making payment of premium and posting
notices as originally required. If any employes of an employer
not entitled to the benefits hereof, or the dependents of such em-
ploye1 in case of his death, shall make application to the Board for
the benefits hereunder, it shall be the duty of the Board to at once
notify such employe, or his dependents of the fact that such em-
ployer is not entitled to the benefits of his Act.
Sec. 75. Applications for benefits hereunder, shall be made by
the injured employ6 or his dependents, within one year from the
TEXTS OF COMPENSATION ACTS OF AMERICAN STATES 1052CC
Kentucky
time of the injury, and if not so made within said time, shall
thereafter be barred and not allowed by the Board.
Members of the Workmen's Compensation Board shall be con-
sidered as officers, and shall take the oath prescribed by the Con-
stitution and laws of Kentucky, and shall give bond for the faithful
performance of their duties, which bond shall be approved by the
Governor and kept on file in the office of the Secretary of State,
and any action on said bond for breach thereof, shall be instituted
by special counsel employed by the Governor and shall be in the
name of the Commonwealth.
Edward J. McDebmott
President of the Senate.
Claude B. Terrell
Speaker of the House of "Representatives.
Approved March 21st, 1914
James B. McCreary
Governor.
COMMONWEALTH OF KENTUCKY
Office of the
SECRETARY OF STATE
Certificate
I, C. F. Crecelius, Secretary of State for the Commonwealth of
Kentucky, do certify that the foregoing writing has been carefully
compared by me with the original record thereof, now in my official
custody as Secretary of State and remaining on file in my office, and
found to be a true and correct copy.
In Witness Whereof, I have hereunto set my
[Seal.] hand, and affixed my official seal.
Done at Frankfort this 26th day of March 1914
C. F. Crecelius
Secretary of State.
By Cecil H. Vansant
Assistant Secretary of State,
KF 3615 B79 191^
Author
Bradbury, Harry
Title
Workmen's Compensation
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