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i 



HARVARD LAW LIBRARY 



B«»ived OCT 2 lUib 



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J 

REPORT OF DECISIONS u^ 

Industrial Accident Board 

and 

Industrial Accident Commission, 

State of California 



EMPLOYERS' LIABILITY (COMPENSATION) ACT 
(Chapter 399. Uws 1911) 



WORKMEN'S COMPENSATION, INSURANCE AND SAFETY ACT 
(Chapter 176. Ijiws 1913) 



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MEMBERS OF INDUSTRIAL ACCIDENT BOARD 

September 1, 1911, lo December 31, 1913 

A. J. PILLSBURY. Okairman. 

WILL J, FRRNCH, 

WILLIS L MOnitlSON (Reigned Aucust 31, 1913). 

HARRIS WEINSTOCK (Appointed Spptembor 1. IfllS). 



MEMBERS OF INDUSTRIAL ACCIDENT COMMISSION 

Jonuan' 1, 1^14 

A. J. PILLSBURT. Chairman. 
WILL J. FRENCH, 
HARRIS WEINSTOCK. 



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PART I 
REPORT OF DECISIONS 

EMPLOYERS' LIABILITY (COMPENSATION) ACT 

(Chapter 399, Laws 1911) 

September 1, 1911, to December 31, 1914 



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The Employers' Liability (Compensation) Act, Chapter 399, Laws 
of 1911, was an elective eompenaation aet and applied only to those 
electing to eonie under its provisions. It was approved April 8, 1911, 
and was effective September Ist of the same year. 

I'art I of this Volume covers the cases decided under this law. 



On Oetolwr 10, 1911, the State Constitution was amended by adding 
Section 21 to Article XX authorizing further legislation to provide for 
a compensation law in a eompuLsory form. 



On May 26, 191-1. the Workmen's Compensation, Insurance and 
Safety Act, Chapter ITK, Laws of 1913, was approved. It went into 
effect on January 1, 1914, and superseded the compensation provi.iions 
of Chapter 399. The Workmen 's Compensation, Insurance and Safety 
Aet is a compulsory compensation act and includes all classes of labor 
with certain expressed exceptions, 

Part II of this Volume covers the ca,s(K decide<I during the year 1914, 
under this law. 



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EMPLOYERS' LIABILITY ACT DECISIONS. 



(No. 3— March 6, 1912.) 
(Chapter 399. Laws 1911.) 
FRED MILLBE, Applicant, vs. STATE OF CALIFORNIA, Defendant. 
This application was filed by Fred Miller, an employee of the State 
of California, to recover compensation for an injury ta his right eye 
caused by an accident arising out of and in the course of his employ- 
ment by the State, during the construction of a dam at Ukiah. Miller 
first presented his claim for eompensaticoi to the State Board of Control, 
which claim was rejected by that Board on the advice of the Attorney 
General. A dispute having arisen between Miller and the State, upon 
the rejection of his claim, this application was filed. 
Fred Miller, in propria persona, far Applicant. 
U. S. Webb, Attorney General, for Defendant. 

MINUTE ORDER BY THE BOARD.— The ease of Fred Miller vs. 
The State of California, being set for this date, and it appearing to 
the Board that the claim. had been previously presented to the Board 
of Control and had been rejected by that Board on the advice of the 
Attorney General, to the eifcet that the State was not under compensa- 
tion; and it further appearing that an award under such conditions 
would be of no avail, the Industrial Accident Board refused to hear 
said ease or to permit the introduction of any testimony therein or to 
consider the applicatioin, on the ground that the Board had no jurisdic- 
tion in the matter. 

The Board ordered that the application be dismissed without 
prejudice. 

The Board informally stated to applicant that section 5 of the act 
was ambiguous and, in the opinion of the Board, shauld be construed 
to bring the state under the compensation provisions without filing 
election. But that this construction could be finally settled only 
through a decision of the Supreme Court of the state. The Board 
advised applicant that a speedy determination of his rights could be 
secured through an application to the Supreme (,'ourt for a writ of man- 
date directed against this Board. 

A.VRON Ij. Sapiro, Secretary. 

NOTB. — On April 16, 1912, upon Ihe application of Fred Miller, in a proceedlnB 
entlUed Fred Miller. Petitioner, va. A. J. rilltbury et at., nufendnnt. «n alternative 
writ of mandate was issued by the Supreme Court of the Stale of C;illfomin. illreeled 
lo thiB Board, orderlnjt the Bohrd to show cauae why It Htioulci not henr and dctermlno 
the controversy referred to In the forepolng oriler. After final hearing, in an oplnlor) 
rendered on Novemlior 20. 1912, the Supreme Court denied thK applirntlon tor the writ 
of mandate, upon the erounrl that the state was not Bubiect to the compensation pro- 
vlalonB of the act and that, therefore, the Industrial Aeeldent Board did not have Juris- 
diction In the matter. The opinion rendered Is reported In 161 California ReporbB 199. 
and Ib reprinted in full In the totlowing pages. ](j 



8 EMTLOYEHS I.t.MllLTTY ACT DECISIONS. 

(S. P. No. 6205. In Bank. November 20, 1912.) 
FRED MILLER, l-ctilioncr. vs, A. J, I'lLI.SBUItY kt al., Rciponde«l>. 

EUPLOYI-R^ LTABIIITI ACT — INJIHY TO PWPLO\EE — \CT Noi APFLICAIILE TO STATE 

AS Fmfloyeb — Tbe istate pf CaliforDia as aa cinplo><>r is not twuud by tbc 
1 roMsions of section -i of the Fmploytrt Liabiltt} ^ct (Stats 1011 p 790) 
to niakr coaiponsatioQ to an roiplojee for personal injuries receLii?d bj him in 
Ibe courBP of his dnlii>8 as an employee There is nolhiDK in the terms of tlie 
act nhicb can Iw construed as indicating an intention on thp |iart of the legis 
lalure to regard tbe act in iti present form as binding on the state 

ot Vt r — By the terms of tbe Employers I labilit} let its application is 
gLnTslly tpcakiDg made to depend upon tbe lUction of both parties to tbc 
contract of emplojment In tbe ahienee of 'tilth mutual agreemeut the injureil 
emplojee must bn\e recourse to bis claim for damages or in other words must 
proceed to enforce the emploiers Inbilitj as distinguished from the coroireil 
sation which might be due under tht net 

lo— State Not IivoLf fob IisJisifh to EMriOvms — V HO\ercign state is not 
bound at all to com|iensate an Individual emploice fur injuries sualained while 
in Its sernce and no right ot ncoierj in faior of such emplo\ee eiists except 
bi statute 

Id — Stati/TE Pebmittixi Sitiit to nr biEO Sibictii Cosstbued — "^tatutci per 
mitting the state to Ic sued are m d rogation of iti soicreignty and will hn 
stricth construed Tbe Fuiploj Ts liability Vet must therefore be fit net i\ 
construed and in snch manner it possible to prmne to tbe slate lis non 
liabilit} for injuries to those in its semce 

AlTUfATroK for a writ of mandate duetlod to the industrial Accident Board of the 
Stale o( California 

The facts are stateil in the opinion of Ihe t'Oiirt. 
Aaron L. Sapiro, for Petitioner. 
('. S. Webb, Attorney ncnonil, for Respondents, 

JIELVIX. .1. Fred Miller, petitioner herein, a|)p]ied to the nwpotul- 
eiits constituting the ImhiNtrial Accident Hoard of the Htatc of Cali- 
fiirnia, to hear hi.s application eoueerninK eonipensalion for injuries 
received hy said ^liller in the course of his dntics as an employee of 
the State, 'I'he Board refused to hear said upplieation upon the 
iironnd that the state is not an employer honnd by the provisions of the 
"Employers' Liability Act." (Stats, li)!!. p. 7i)6.) An alternative 
writ of mandate was i.s.sued in which the Hoard was required to hear 
Miller's application or to siiimv cause why sueh action should not Ire had. 
Respondents appeared and dennirred to the petition for a writ of 
niatiilamus. The qnestion.s raised being purely tho.sc which arise out 
of the interpretation of the "Eiiiphiyers' Liability Act." the eon- 
Iniversy nmy lie determin(Hl by oiir dccisinn upon this demurrer. 

By the terms of the statute its applii-ation is. generally speaking, 
made to depend upon the election of both parties to the contract of 
employment. In the absence of .such mutual asrecmcnt the injured 
employee must have recourse to his claim for damages, or, in other 



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EMPLOYEHS' LIABILITY ACT DECISIONS. 9 

words, must proceed to enforce the employer's "liability" as distin- 
guished from the "compensation" which might be due under the act, 
By section 3 of the act the general responsibility of employers under 
thu theory of compensation is fixed as follows: 

"Liability for the compensation hereinafter provided for, in lien 
of any other liability whatsoever, shall, • • • exist against an 
employer for any personal injury accidentally sustained by his 
employees, • • " where the following conditions of compensation 
concur : 

"(1) Where • • • both the employer and employee are 
subject to the provisions of this act. " • • 

"(2) "Where • " • the employee is performing service 
growing out of and incidental to his employment. • • • 

" (3) Where the injury is approximately caased by accident. 

"And where such conditions of compensation exist • • • the 
right to the recovery of sueli compensation • • • shall be . 
the exclnsive romcdv against the employer for such injurv or 
death. • • •" 

The principal point of difference ijetwcen petitioner and respondents 
arises over the interpretation of Kcction 4, which is as fallows: 

"The following shall constitute employers subject to the provi- 
sions of this act within the meaning of the preceding section: 
(1) The state, and each county, city and county, city, town, village 
and school districts and all public corporations, every person, firm 
and private corporation (including any public service corporation) 
who has any person in service under any ecmtract of hire, express 
or implied, oral or written, and who at or prior to the time of tlie 
accident to the employee for which compensation under this a<'t may 
be claimed, shall, in the manner provided in the next sectirm, have 
elected to become sul>jcct to the provisions of this act, and who 
shall not, at the time of such accident, have withdrawn such 
elet'tion, in the manner provided in the next section." 

Petitioner insists that it was the intention of the legislature by this 
section not only to divide emph»yers into two classes, hnt to commit the 
state to an election of "compensation" as the method of satisfying 
claims for injuries to its emphiyees. lie believes that the section should 
be read as if a semicolon were plai'cd after the words "all public 
corporations." and that so punctuated the section would designate two 
classes of employers, (!) the state and the specified public corporations 
and (2) pei-sons. firms and corporations having people in their ser\'ice, 
and further that all employers in the fii-st group would come under tlie 
compensation provisiqns, while those in the second class would come 
within the terms of the act only by election. 

As a preliminary reason for a reading of the act in such manner as 
to sustain his views, petitioner's counsel is at some pains to as.sure us 
that "the best modern judgment favors the tlieory of compensation" 



10 BMPLOTBBS' LIABILITY ACT DECiaiONS. 

and "the State of California expeets employers to elect compensation 
as preferable to liability." Even if we concede his first proposition we 
can not be swayed to any great extent by it unless the legislative branch 
of our government has expressed similar views, because legislation is 
not one of the functions at this court. If. however, the state has indi- 
cated a policy in favor of sui-h election by employers, we should of 
course be l>ound to consider that fact in our efforts to interpret statutes 
having reference to employers others than the state itself, but the state's 
preference in that regard, even if for the purposes of argument we 
admit its existence, would be of small value to us in construing the 
intention of the state, as expressed by the legislature, where the subject 
involved is the attitude of the state when it is itself an employer, 
because the sovereign is not bound at all to compensate an individual 
employee for injuries sustained while in its service, and no right of 
lecovery in favor of such employee exists except by statute: Bourn 
vs. Hart, 93 Cal. 321 (27 Am. St. Rep. 203, 15 L. R. A. 431, 28 Pac. 
951) ; Chapman vs. Stale. 104 (^al. 690 (43 Am. St. Rep. 158, 38 Pae. 
457) ; Melvin vs. State, 121 Cal. 16 (53 Pac. 416) ; Denning vs. State, 
123 Cal. 316 (55 Pae. 1000). "Public rights will not be treated as 
relinquished or conveyed away by inference or legal construction. 
Statutes permitting the state to be sued are in derogaticm of its sover- 
eignty and will be strictly construed." (Lewis's Sutherland Stat. 
Constr., Sec. 558.) The statute before us must, therefore, be strictly 
construed and in Mich manner, if possible, to preserve to the state its 
noQ-liability for injuries to those in its service. 

But petitioner calls our attention to two other sections of the act 
which, as he believes, when read in connc<-tion with section 4, compel 
the interpretation of that section which he favors. Section 6 defines 
the term "employee" as " (1) Every person in the service of the state, 
fir any comit.v, city and county, city, town, village or school district 
therein, and all public corporation.s, under any appointment or contract 
of hire, express or implied, oral or written, except any official of the 
state, or of any county, city and county, city, town, village or school 
district therein or any public corporation, who shall have been elected 
or appointed for a regular term of one or more years, or to complete the 
unexpired portion of any such regular term. (2) Every person in the 
service of another under any contract of hire, express or implied, oral 
or written, • • • but not including any person whose employment is 
but casual and not in the usual course of the trade, business, profession 
or occupation of his employer." The above classification, he says, is 
based not upon any difference or distinction in the employees them- 
selves but solely upon the classification of employers. Section 7 pro- 
vides that: "Any employee as defined in subsection (1) of the pre- 



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employers' LTABILITT act DECiaiONS. 11 

ceding sei^tion shall be subject to the provisions of this act and of any 
act amendatory thereof. Any employee as defined in subsection (2) 
of the preceding section shall be deemed to have accepted and shall 
• • • be subject to the provisions of this act •••)£••• 

"(1). The employer • • • is subject to the provisions of this act, 
whether the employee has actual notice thereof or not; and 

"(2). At the time of entering into his contract of hircj express or 
implied, with such employer, sueh employee shall not have given to hia 
employer notice in writing that he elects not to be subject to the provi- 
sions of this act, or, in the event that such contract of hire was made 
in advance of such employer becoming subject to the provisions of the 
act, such employee shall, without giving such notice, remain in the 
service of such employer for thirty days after the employer has filed 
with said board an election to be subject to the terms of this act." 
'Petitioner's position then is this: Employees are classified by sec- 
lion 6 simply as those hired by the two kinds of employers — public and 
private. By section 7 the public employee is given no election, and 
therefore, petitioner reasons, section 7 was based upon the conclusion 
that by section 4 the legislature had already elected for the state the sys- 
tem of compensation. That is, according to petitioner, the statute was 
intended to classify employers and employees, and to impose the provi- 
sions for compensation automatically upon public employers and those 
in their service, and to permit the privilege of election to private 
employees and employers. "The legislature," says counsel for peti- 
tioner, "could never have intended to mix this privilege of election — to 
allow election to both classes of employers and to only one class of 
employees." But we see no incongruity in a situation denying to 
public employees the right of election. The state by virtue of its 
sovereignty may refuse all redress to its injured servants. When it 
elects to adapt the compensatory system, that becomes the only recourse 
of the employee. His election is not between such recourse and a suit 
for damages, but between the privilege extended to him and resignation 
from public service. All who seek employment under the state must 
be willing to accept it, if at all, under sueh terms as are offered. Re- 
turning to a consideration of section 4 : If we so separate the section 
that the modifying clauses, each beginning with the word "who," are 
made to modify only the nouns following the words "public corpo- 
rations," we take away from the act its elective features so far as the 
state and the employees thereof are concerned and make it compulsory 
as to them. Such purpose on the part of the legislature is negatived by 
several circumstances. Por example, we find the expression "who has 
any person in service under any contract of hire" in section 4. If 
petitioner is correct in his views these words apply only to the nouns 



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12 EMPLOTERS* LIABILITY ACT DECISIONS. 

'■person," "linri" and private "corporation"; but we find essentially 
the same formula used twice in section 6 — once in the definition of an 
employee of the .state and again with respect to one who has been hired 
by a private person. Such use of the expression in the latter section 
would indicate that when it appeared in section 4 it was meant (as the 
punctuation would imply) to modify all of the preceding nouns. 
■\nother argument against petit ion er'.t position is that the aet contains 
no jirovisioas for the payment of awards which mig'lit be in favor of an 
employee and against the state. Again, it is noticeable that no machin- 
ery is supplied by the act whereby the services of the Industrial Aeta- 
dent Board may be invoked by the state. No officer is named as the 
proper functionary to receive service of notices mentioned in the act. 
None is authorized to reprtsent the state in requesting examinations of 
employees or the hearing of any controversies. These omi.ssions are 
significant. They indicate that the legislature did not regard the state 
a? being hound by the act in its present form and therefore omitted to 
provide for those contingencies which would arise if. at some time in the 
future, the state should elect to place itself- within the terms of the act, 
and which could then be met by appropriate legislation. We are con- 
vinced that the legislature did not intend the reading of .section 4 which 
petitioner would have us give to it. 

Let the demurrer be sn-stained and the writ discharged. 

LoRiG.\N, J., concurred. 

IIensii.wv. J., concurring. I concur. It i.s apparent that this 
statute raises a doubt whether or not it was contemplated by its framers 
that the state should he subject to its provisions. Under fundamental 
and familiar principles of construction of statutes such as this the 
existence of the doubt is the solution of the inquiry. Whenever such 
a doubt does exist the construction favors the sovereign. The sovereign 
is not brought within the .scope of ils own laws unlass the intent that 
this should be done is made plainly to appear. This general rule of 
construction favoring the sovereign in case of doubt is applied to grants 
by the state, to statutes of limitation, to rights of action, and, indeed, 
to all laws and contracts cimcerning which it may be thought that the 
st^ite is included or is a party. If, in truth, the state dejfires to subject 
itself to the law here in question it could and should do so in language 
of dear and unmistakable import. 

Sloss, J. aiTd SiiAw, J., concurred. 



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EMPU)YER8' LIABILITY ACT DECISIONS. 13 

(No. 1— March 8, 1912.) 

(Chapter 39S. Laws 1911.) ' 

MARTHA A. McAVlN, fob herself and uimob cuild, ROBT. J. McAVlN, 
Applicant, vs. CITY ELECTRIC COMPANY (a cokpobation), Defendant, 

CoNDixiONB OF CouPENSATiON — EVIDENCE. — Under section 3 of the act, compeuaa- 
tion-cSD be allowed only when the following facts appear: (1) Both employer 
and employee are subject to the coni|>enEatioa provisions of the net. (2) Em- 
ployee at the time of the acoident was performios service, (a) withio the st.-oi>e, 
(b) growing out of, (c) incidental to, his employment, (3) Accidental injurj' 
was approximately caused by accident. 

BuBDEN OF Proof.— The burden of proof is upon the person claiming compensation 
to show that the above conditions of compensation exist. When this proof has 
been made, the employee is entitled to compensation unless the employer shall 
affirmatively show other facts which would defeat his right to compensation, 

Inpf.rence of Fact.— a tact may be proved by direct or circumstantial evidence. 
When circumstantial evidence is relied upon, it must be sufficiently strong to 
justify the Board in drawing an inference of fact. 

I'bbsumftion — JuMWAL KoTirE. — The Board will lake judicial notice of Ihe accept- 
ance of compensation by the employer and it will be thereafter presumed Chat 
his employees are also under compensation, unle^ the contrary' be shown. 

E Word "Appboximately." — The word "approximately," as 
n 3 of section 3 of the net is to he given the same construction 
is by law given to the word "proximately." 
section 'J of tiie act. the right to eompensation exists without 
nee and therefore negligence on the pajt of the employer or 
a immaterial issue, 
—lender section 10 of the act, if failure to serve notice within 
thirty days after the accident was not due to any intent to mislead the employer 
and if he was not in fact misled thereby, the claimant is not barred from recov- 
ery under (he net. When an accident resulting In death occurs at the employer's 
plant and such employer had full notice and knowledge of the happening of such 
accident and took stet)s to fully protect his own interests imuiediately thereafter, 
he can not have been prejudiced by the failure to serve the notice of injury. 

Release of Liabilitt. — Instrument considered and eoiiHtriied to be a receipt and 
not a release. A receipt is merely evidence of a fact ; it is not conclusive and 
may be contradicted by parole testimony. 

Dependents— Parties. — Under subdivision 3 of section 9 of the act, where an 
employee under compensation leaves a wife and minor child surviving him, Ihe 
wife in conclusively presumed to be "solely and wholly' dependent upon decedent 
and the minor is not entitled to any imrt of the compensation whic.i may be 
awarded. Thei'eforo. Ihe minor is not a necessiary and proiwr party to the appli- 
cation to recover compensation in such cases. 

Time When Employeb Rra'ostES Sueuect to Cosii'ensatcojj. — Under section 7 of 
the act, an employee in the service of the employer at the time the latter elects 
compensation, who does not affirmatively elect eomiiensaCion. does not come 
under compensation until ho shall have remained in such employment for thirty 
days after the employer has filed his election. (T>iBsenting opinion on this point 
filed by Will J. French.) 

Applitifttion for conipcnsatinii for de;itli. TIip facts arc stated in the 
apinion of the Board. The doi.-oa.sed wa.s }>i'ld not to lie tin einjiloyefi 



CONSTRCCT 

used in 
andmt 


L subdivisi 


Neuligenci 
regard 

employ 


B.— Under 
to neglifi 


NoTicK OP 


Injury.- 



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14 bmploybbb' liability act decisions. 

within the meaning of the act and the applicant was therefore denied 
compensation. 

W. D. Cardu-ell, attorney, for Applicant. 

Gvy Earl and W. H. Spaulding, attorneys, for Defendant. 

This applieation was filed on the 12th day of January, 1912, by the 
above named applicant, Martha A. McAvin, the surviving widow of 
James J. McAvin, deceased, in behalf of herself and minor child, Robt. 
J. McAvin, to adjust a controversy concerning compensation under the 
"Employers' Liability Act," chapter 399, Laws of 1911, arising out of 
the death of said James J. JU-Avin, deceased. 

The admitted facts relative thereto may be briefly stated as follows : 

The decedent, James J, McAvin, entered into the employ of the Uity 
Electric Company, a corporation, the defendant heroin, under a con- 
tract of hire made an or about the 3d day of September, 1907, and 
remained in their employ continnously thereafter, in various capacities, 
down to the 17th of November, 1911. 

On the 14th day of November, l9ll, defendant duly and regularly 
filed with this Board an acceptance of the "Employers' Liability Act" 
(chapter 399, Laws of 1911), in the manner and form required by 
section 5 of said act, and thereby became subject to the ' ' compensation ' ' 
provisions of said act. Decedent was in defendant's employ at said 
time under said contract of hire and did not at any time thereafter 
serve upon defendant the written notice that be elected not to he sub- 
ject to the "compensation" provisions of said act, authorized by sec- 
tion 7 of the act, nor did he at any time notify defendant that he 
desired to accept said provisions. 

On the 17th day of November, 1911, at 8 o'clock p.m. (three days after 
defendant elected compensation}, decedent was found dead in the base- 
ment of the electrical plant of defendant, at Beach and Mason streets, 
in the city and county of San Francisco, lying on the cement floor in 
front of an open low-tension electrical switchboard, carrying a 220-volt 
current with a maximum capacity of 600 amperes. A wooden cover 
used as a guard for this switchboard had fallen on decedent and par- 
tially covered him. When found the body was cold. 

At the time of his death, decedent was employed by defendant as chief 
operator, with regular hours of employnicut from 8 o'clock a. m. to 5 
o'clock p. m., and was very often called u]>on to work much later. He 
was paid $110.00 per month for an eight hour day and in addition double 
wages for overtime. He was permitted to keep track of his own over- 
time and determine for himself the amount he was entitled to charge 
as such. 

As chief operator, it was part of decedent's duty to inspect, from time 
to time, the working of the various parts of defendant's plant. 

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EMPLOTBBS' LIABILITY ACT DECISIONS, 15 

For the year prior to his death, decedent earned the sum of $1,596.45, 
of which $1,320.25 represented regidar wages and $276.20 overtime, and 
if his dependents are entitled to compensation, under section 8 of the 
act, they should be awarded three times said sum or $4,789.35. 

Decedent left surviving him a widow, Martha A. McAvin, and a 
minor child, Robt. J. McAvin. Said minor has no legal guardiao 
appointed by law or otherwise. 

After the death of decedent and on or about the 12th day of Decem- 
ber, 1911, said Martha A. McAvin executed the instrument marked 
Kxhibit "A" and attached to defendant's answer herein, which defend- 
Hiit claims releases it from all liability. 

The written notice of the happening of said accident, referred to in 
.lection 10 of the act, was not served on defendant within thirty days 
thereafter by applicant or by any one in her behalf, but defendant knew 
of decedent's death immediately and was represented at the coroner's 
autopsy held on the 18th day of November, 1911, and at the inquest 
held on the 12th day of December, 1911, at which a verdict was rendered 
that the decedent came to his death by electrocution, as the result of an 
accident. 

Defendant, while admitting all the foregoing facts, upon the hearing 
.strongly urged the following points as grounds for denying the appli- 
cation in this matter: 

First — That decedent was not killed by accident. 

Second — That if decedent's death was the result of an accident, such 
accident was due to his own wilful misconduct. 

Third — That at the time of hLs said death, decedent was not perform- 
ing service within the scope of his employment or growing out of, or 
incidental thereto. 

Fourth — That the accident was not caused by any negligence on the 
part of defendant. 

Fifth- — That a notice of injury was not .served upon defendant within 
the thirty-day period and that defendant was prejudiced thereby. 

Si3:th — That after the death of said James J. McAvin, the applicant, 
Martha A. McAvin, for a good and valuable consideration, executed and 
delivered to defendant the instrument attached to their answer marked 
Exhibit "A," and that tbi.s instrument was a full and complete release 
and satisfaction of any and all claims that she might or could have 
against defendant by reason of the death of decedent. 

Seventh — That said minor, Robt. J. McAvin, was a proper and neces- 
sary party to this proceeding and that hi,'* mother, Martha A. McAvin, 
was not his legal gimrdian and was not authorized to represent him 
herein. 



D.gi*zecbyG00glc 



16 EMPIX)YEBS' LIABILITY ACT DECISIONS. 

Eighth — That at the time of hiy said death, decedent was not an 
employee subject to the compensation provisions of said act. 

Under section 16 of the act, after final hearing;, the Board is onlj- 
required to make and file its findings upon all facts involved in the 
controversy and its award, stating its determination as to the rights of 
the parties. However, in view of the fact that this is the first contro- 
versy under "compensation" submitted to the Board for its decision, 
and 8s this proceeding raises many important questions which are of 
great interest to the people of the state, the Board deems it advisable to 
express its opinion upon all the issues raised without regard to the fact 
that the majority of such issues do not affect the final determination of 
the Board. 

As a general rule the burden of proof is upon the party holding the 
affirmative, and therefore, the party claiming compensation must show 
that the conditions of compensation exist. These conditions of compen- 
sation are set forth in section 3 of the act, as follows : 

"Sec. 3. Liability for the compensation hereinafter provided 
for, in lieu of any other liability whatsoever, shall, without regard 
to negligence, exist against an employer for any personal iujury 
accidentally snstained by his employees, and for his death if the 
injury shall approximately cause death, in those eases 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 according to the 
succeeding sections hereof. 

(2) Where, at the time of the accident, the employee is per- 
forming service growing out -of and incidental to his employment 
and i-s acting within the line of his duty or course of his employ- 
ment as such. 

(3} "Where the injury is approximately caused by accident, either 
with or without negligence, and is not so caused by the wilful mis- 
conduct of the employee. 

And where such conditions of compensation exist for any per- 
sonal injurj- or death, the right to the recovery of such compen- 
sation pursuant to the provisions of this act, and acts amendatory 
thereof, shall be the exclusive remedy against the employer for 
such injury or death," 
The Board will take notice of the filing of the acceptance of the act 
by the employer and when the employer has elected compensation, it 
will be presumed that his employees are also under compensation, unless 
the eontrarj- bo shown. 
The burden of proof, then, is upon the applicant to show: 

(1) That the emploj-ee at the time of the accident was performing 
.service, (o) within the scope of, (!>) growing out of, and ic) incidental 
to the employment. 

(2) That the injury for which compensation was claimed was approx- 
imately caused by accident. 

i:a,ti7o=t,.'GoO'^lc 



employees' liability act decisions. 17 

When this proof has been made, the employee is entitled to compen- 
sation unless the employer shall affirmatively show other facts which 
would defeat the right to compensation. For example, the burden of 
proof is upon the employer to show "wilful misconduct" in the event 
he relies upon this as a defense. 

When an issue of fact arises, this burden of proof may be met by 
direct or circumstantial evidence. Where circumstantial evidence is 
relied upon, it must be sufficiently strong to justify the Board in draw- 
ing an inference of fact from the evidence produced. 

The Board is of the opinion that the word "approximately," used in 
subdivision 3 of section 3, is to be given the same meaning that has been 
given the word "proximate" in law, and that the applicant for compen- 
sation must show that the accident was the "proximate" cause of the 
injury. 

Considering, then, the particular facts in issue: 

Firs(— The cause of death. There was no direct evidence relative to 
this other than the testimony of the physicians. 

Dr. M. E. Magnus, the coroner's physician, who conducted the autopsy 
on the 18th day of November, 1911, and Dr. Geo. Rothganger, who 
assisted at this autopsy, both of whom, although called by applicant, 
may be said to be unbiased witnesses, testified that certain pathological 
changes affecting the body could have resulted only from death by 
clcetrocution. 

This testimony was not seriously controverted by the other physician, 
Dr. A. K. Hruman, who represented defendant at the autop,sy. 

All the doctors a^frced that all the decedent's organs were normal, 
and that there was no indication of death from any other cause. 

Certain witnesses called by defendant were of the opinion that a 
220-volt current, regardless of the amperage, could not cause death, 
and basing their condasion solely upon this belief were positive in their 
testimony that death was not caused by electrocution. These witnesses 
were the employees of the defendant and were not expert witnesses. 

There are recorded in the various electrical journals and in books 
dealing with this subject many authentic instances where death has 
been caused by contact with an electrical current of less than 220 volts. 
Douglas Knocker in his work on "Accidents in their Medico-Legal 
Aspects," at page 275, refers to a case where contact with a 65-volt 
electrical current caused death. 

Incidentally, we desire to cull attention to the fact that, although 
request was made, defendant failed to c-itc a single authority to the effect 
that a 220-volt current could not cause death, when other circuni-stancea 
were favorable. 



D.gitizecbyG00glc 



18 EMPMYEHS' LIABILITY ACT DECISIONS. 

Just prior to his death, decedent had washed his hands and the testi- 
mony showed that the cement floor direetly beneath the switchboard was 
wet, so that a)l conditions were favorable to the liappening of an acci- 
dent such as this. 

The position in which decedent was found, directly beneath the open 
switchboard, with the cover of that switchboard lying on top of him, 
when taken in conjunction with the testimony of the physicians and in 
the absence of any testimony to the contrarj- or any other explanation 
of death, would seem to conclusively prove that death was caused by 
olectroeutioin resulting from an accident. 

Second— 'I'he defendant alleges that decedent's death was caused by 
his own wilful misconduct. The burden of proof is upon defendant to 
prove this fact, and since there is not a scintilla of evidence upon this 
issue, it must be found against defendant. 

In passing, it should be noted that it is only "wilful misconduct," 
that is to sav "intentional misconduct," that .iustifies denial of com- 
pensation. 

Third — Decedent, as chief operator, had charge of this switchboard 
and as such it was plainly within the scope of his employment to inspect 
the same. But defendant contends that his services for the day were 
over and that he was therefore, at the time of the accident, not perform- 
ing services growing out of his said employment or incidental thereto. 

It appeared that the decedent was authorized to use his own discre- 
tion in determining the time when his services should no longer be 
required for the day. Decedent had not put on his coat and the most 
reasonable inference to draw from the facts in evidence is that he went 
down to tlie basement to look things over before going home; found 
something that required attention in connection with the switchboard 
and that he was performing service, at the time of the accident, growing 
out of and incidental to his employment as chief operator and for which 
he would have been paid if death had not resulted therefrom. 

Fourth — Under section 3 of the act (supra) the right to compensation 
is a right given "without regard to negligence," and therefore, negli- 
gence on the part of the employer or employee is immaterial. The 
Board refused to consider any evidence on tltis issue. 

Fifth — Notice of injurj'. Although notice of injury required by 
section 10 of the act was not served upon defendant within the thirty- 
day period, yet defendant was not prejudiced thereby. It had full 
notice and knowledge of the happening of the accident and at all times 
was careful fully to protect itself. Furthermore, applicant did not 
know that the present law had been passed and therefore it can not be 
said that her failure to serve such notice was due to any attempt to 
mislead defendant. Injury and intent must both be shown to defeat 
recovery upon this ground. 



D.gitizecbyG00glc 



EMPLOYEBS' LIABILITY ACT DECISIONS, 19 

Sixth — Release of liability. Subsequent to the death of decedent, the 
said applicant, Martha A, MeAvin, executed an instrument in the 
words and figures following, to wit : 

"Whereas, On the 17th day of November, 1911, James J. McAvin 
(also called James MacAvin) was in the employ of the City Electric 
Company, a California eorporatiou, and ou said day was found 
dead in the basement of the steam plant of said corporation; and, 

Whereas, At the time of his death, there was due and owing him 
from said corporation his wages, the sum of seventy-six ($76.00) 
dollars, . t,^ 

t\ow, therefore, in consideration of the sum of one hundred and 
thirty-two and 85/100 dollars ($132.85) from said corporation, the 
receipt whereof is hereby acknowledged by the undersigned, sur- 
viving wife of said James J. McAviu, the undersigned hereby 
acknowledges receipt in full from said corporation of all claims 
and demands on the part of said MeAvin, or of the undersigned, 
against said corporation, whether for wages due to said MeAvin, 
or otherwise, or at all, the undersigned hereby acknowledging to 
said corporation that she attached no blame to said corporation in 
connection with the death of her husband. 

Dated: San Praneiseo, California, December 12th, 1911. 

(Signed) Mrs. Martha A. McAvin. 
Witness : 
(Sgd.) Albert A. Perkin." 

Defendant claims that the foregoing instrument constitutes a full and 
complete release of all liability. The Board is of the opinion that it is 
not a release but merely a receipt, and as such, is not conclusive and 
may be contradicted by parole testimony. 

At the time of his death, there was due to decedent the sum of $76.00 
and defendant caused applicant to be advised shortly thereafter that 
decedent's name would be carried on its pay roll until the end of the 
month of November, 1911. The amount mentioned in said instrument 
and paid to applicant coincides with the amount that applicant was 
informed was to he paid to her, unconditionally, as decedent's wages 
and she intended only to receipt for such earnings and did not intend, 
nor did she, release any right or claim that she might or could have 
against defendant by reason of the death of her husband. 

In passing upon an instrument similar to this, the Supreme Court of 
this Ntate has said : 

"We think the jury and the trial court were fully warranted in 
finding against defendant on its contention, based upon a 'receipt 
in full of all demands,' that the damages here sought to be recov- 
ered had been settled and paid for by defendant. The written 
receipt did not discharge the indebtedness unless it was so intended 
at the time it was made. Plaintiff testified that the receipt was 
for his wages, and the amount which was paid at the time of making 
the receipt exactly covers his wages and the ten dollars defendant 



20 EMPLOTEBS' LIABILITY ACT DECISIONB. 

proposed to pay on the doctor's bill. The plaintifE's testimony 
looks reasoDable, and the jury were warranted in acting upon 
it: Davis vs. Diamond Carriage, etc. Company, 146 Cal. 59, 61. 

"She testified that at her request it was read to her by Green, 
the defendant's timekeeper, and that from what he read and his 
explanation of it to her, she wa^ led to believe that it was simply a 
receipt, and upon her request her husband signed the paper with- 
out reading it • " •. The representations by Green to the 
plaintiff's wife must be considered as a representation by the 
defendant to the plaintiff, and the jury was authorized to find that 
the plaintiff did not understand the contents or purport of the 
instrument; Smith vs. Occidental and Oriental Steamship Co., 
99 Cal. 462, 471." 

Attention is also called to the following quotation from California 
Packers Co. vs. Merritt Fruit Co., 6 Cal. App. 507, to wit : 

"The fact thnt it stated that the money received was in full of all 
claims and demands must be held to mean the claims and demands 
for which the money was given in satisfaction. A receipt may 
always be explained, and even the amount of money stated in the 
receipt to have been paid may be shown by parole evidence to have 
been a different sum. If the amount or sum mentioned in the 
receipt may be contradicted by parole, there is no reason why the 
words 'all claims and demands' may not also be contradicted or 
explained. One word in a receipt is no more sacred than another." 

Under section 28 of the act, after the happening of the accident, the 
parties have the right to compromise and settle any liability for com- 
pensation under the act. "Without in any way passing upon the rights 
of this Board to set aside a formal release, the Board is of the opinion 
that, even if the instrument signed by the applicant, should have been 
a formal release, still a release procured under such circumstances would 
not be binding in a court of equity. 

Seventh — Parties, Under subdivision 3 of section 9 of the act certain 
persons are "conclusively presumed to be solely and wholly dependent 
for support upon a deceased employee: (a) A wife upon a hiLsband." 
The Board is of the opinion that the classes mentioned are exclusive 
and where the deceased emplo.vee leaves a surviving widow and a minor 
child or children the entire compensation is to be paid to the widow, it 
being presumed that the minor will be supported by her. Under this 
construction the minor is not a proper and necessary party to the 
proceedings. 

In passing, the Board desires to call attention to the fact that it is 
not expressly authorized to appoint a guardian ad litem and that while 
the general intention of the act is to expedite the administration (tf 
this class of disputes, it is questionable whether the Board would have 
any such right. Further, that when an application is filed by or in 



D.git!zecbyG00glc 



BMPLOTEBS' LIABILITT ACT DECISIONS. 21 

behalf of the minor, it should he filed in the name of the minor hy its 
guardian, and not in the name of the guardian. 

Eighth — The foregoing disposes of all points except the question as 
to whether or not the decedent at the time of his death was an employee 
subject to compensation. 

Section 7 of the act reads as follows : 

"Any employee, as defined in subsection (1) of the preceding 
section, shall be subject to the provisions of this act, and of any act 
amendatory thereof. Any employee, as defined in subsection (2) 
of the preceding section, shall be deemed to have accepted and shall, 
within the meaning of section 3 of this act, be subject to the provi- 
sions of this act and of any act amendatory thereof, if, at the time 
of the accident upon which liability is claimed: 

(1) The employer charged with such liability is subject to the 
provisions of this act, whether the employee has actual notice 
thereof or not ; and, 

(2) At the time of entering into his contract of hire, express or 
implied, with such employer, such employee shall not have given 
to his employer notice in writing that he electa not to be subject 
to the provisions of this act, or, in the event that such contract 
of hire was made in advance of such employer becoming subject 
to the provisions of the act, such employee shall, without giving 
such notice, remain in the service of such employer for thirty days 
after the employer has filed with said board an election to be subject 
to the terms of this act." 

Leaving out all qualifying words not neee&sary, in our opinion the 
tiectiom should read as follows : 

"Any employee shall be deemed to have accepted • • • the provi- 
sions of this act • " * if, at the time of the accident * * * the em- 
ployer charged with liability is subject to the provisions of the act • • • 
and [ip] at the time of entering into his contract of hire such employee 
shall not have given notice in writing that he elects not to be subject 
to the provisions of the act, or [if] such contract of hire was made in 
advance of such employer becoming subject to the provisions of the act 
* * • such employee shall remain in the service of such employer for 
thirty days after the employer has filed an 'election' to be subject to the 
terms of the act without giving such notice." 

The phrase "at the time of the accident" relates wholly to the em- 
j-loyee being, at that time, subject to the provisions of the act and does 
not at all relate to the time when the employee becomes subject to the 
act. 

Under the act, compensation is dependent upon contract. The filing 
of the acceptance by the employer is the offer on his part to enter into 
a contract with his employees for the compensation therein provided 
and for the adjustment of any dispute that may arise thereunder. 



D.gitizecbyG00glc 



22 employees' uabilitt act decisions. 

The only way provided by the act whereby an old employee can 
accept this offer and eome under the compensation pravisiona of the 
act. is to remain in the employ of his employer for thirty days after his 
employer's "election" of compensation 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. 

It will seem that the act is defective in not providing a method 
whereby old employees can waive this thirty-day period. We, however, 
expressly refrain at this time from expressing any opinion as to whether 
or not an employee would be entitled to compensation in the event that 
he notified his employer, prior to the happening of the accident, that he 
desired to waive the thirty-day period. 

In the matter now before us, we are of the opinion that the employ- 
ment of the decedent was terminated by his death on November 17, 
1911, three days after defendant filed its aceeptanee of the act and that 
he did not remain in the employ of defendant for the thirty-day period 
required to bring him under the compensation provisions of the act. 
That therefore, at the time of the accident, decedent was not an em- 
ployee under compen.sation and that therefore, his widow, the applicant 
herein, is not entitled to the relief prayed for. We realize that there 
are many arguments to be advanced in support of a different construc- 
tion and of the view taken by one of the members of this Board, yet 
despite this fact, we believe that the eonstrnction that we have given to 
this section is the proper construction to be given and that any defect 
that may exist in the law, must be remedied by the legislature and not 
by the courts or by this BcMird. 

Our decision is based solely upon our interpretation of .said section 7 
of the act above quoted. 

Application denied and award ordered for defendant. 

A. J. Pn,I,fiBITRY, 

Willis I. Morrison, 
Corn mission ers. 

D1S.SENT1NG OPINION. 

In dissenting from the majority opinion of the Industrial Accident 
Board, so far as the decision is concerned, as laid down in the third, 
fourth and fifth conclusions of law in the award, I do so in the belief 
that the spirit and letter of the Roseberry Employers' Liability Act 
warrant such dissent. 

James .7. McAvin was found dead in front of an auxiliary switch- 
board of the City Electric Company on the evening of November 17, 
1911, at its plant situated at the comer of Beach and Mason streets, 
San Francisco. Three days before that date, on November 14, 1911, 
the City Electric Company accepted the compensation provisions of the 
law. ^ 

i:ni,-r:-,G00'^lc 



employers' liability act decisions. 23 

The division of opiuioD between the members of the Board hinges 
upon the interpretation to be placed on paragraph (2) of section 7 
of the act, which defines employees subject to the law. These employees 
are divided into two clashes, those entering into their employment 
after the employer has accepted compensation, and those already em- 
ployed when the employer accepts. The first class must give notice in 
writing of election "not to be subject to the provisions of this act" at 
the time of entering employment. The second class, the older employees, 
are given thirty days in which to decline compensation by "giving 
such notice," i. e., election in writing not to be subject to the "provi- 
sions of this act." 

The question at issue is: Does compensation or liability govern the 
relations between employers and the older employees during the thirty- 
day period* 

Workmen 's compensation laws are designed to protect men and women 
engaged in industry who may be injured. This is done in different 
ways by different laws, according to the country or state. All these 
laws have a schedule or plan of financial payments to the injured. 

Employers in California have the exclusive right to first accept com- 
pensation. It matters not how anxious the employees may be to receive 
the benefits of compensation, imless the employer makes the initial move 
by registering with the Industrial Accident Board, and thereby enters 
into contractual relations with the State of California, the employees 
are prevented from leaving the liability side of the law. 

The wage-earners the world over are in favor of compensation laws, 
although there are differences of opinion as to the form such laws 
should take. The absence of equal option on the part of the (employers 
and employees under California's liability law necessitates the broadest 
possible construction of the statute in order that substantial justice may 
be done. 

It may be argued that employees have the same right first given to 
employers of contracting or agreeing to compensation. This is nom- 
inally true, but that freedom which is the essential part of a contract 
or agreement is missing under our economic conditions. If the employer 
decides upon the compensation method, duly registers with the Indus- 
trial Accident Board and makes his arrangements to carry compensation 
insurance, it is unlikely that an employee who prefers the old common 
law of liability will stand in the employer's way. 

A situation whereby an employer would be unacquainted with his 
exact standing, even for thirty days, would be an injustice to him. I'he 
law gives him the first option. After accepting compensation, and 
immediately notifying hi.s employees as required by law, he should be 
enabled to determine his status. Experience in California tells us that 



Goo^^lc 



24 EMPLOYEHS' LIABIIITT ACT DECISI0K8. 

some employers carry their own insurance, when they accept the com- 
peosatioD provisions. Possibly they could not afford to do this under 
the liability side of the law, for oeeasionaUy heavy damages are awarded 
to injured men where there ia negligence or carelessness. Within the 
last few months in the State of California a cheek for $92,000 was paid 
to a man severely hurt. If an employer has notice in writing from an 
employee that compensation ia not acceptable, as provided by law, then 
the employer can determine his future course and protect himself accord- 
ingly, either by securing liability insurance or in some other way. 

It will be admitted that an employee should not operate under both 
liability and compensation for a period of thirty days, with the law 
as it now stands. 

Section 3 states that the employer and employee are subject to tlie 
provisions of this act "according to the succeeding section hereof at 
the time of the accident." Further on in the same section it is laid 
down that the option (coropen-sation or liability) can only be exercised 
when the injurj- is caused by ' ' personal gross negligence or wilful per- 
sonal misconduct of the employer, or by reason of his violation of any 
statute designed for the protection of employees from bodily injury." 
This section shows that, except for the reasons given, there must be 
a fixed condition, either compensation or liability. 

An employer accepts compensation for some good and sufficient reason 
or reasons. It matters not whether it be the belief in a more humane 
way of treating those injured while at work, or to avoid the possibilities 
of having to pay heavy damages in case of a lawsuit. Suffice it to say 
that the employer, by his act, over which he has complete control, 
accepts compensation from the minute he registers and thereby implies 
a desire that his factory or plant should operate under that system. 

To say that a man entering employment the day after registration 
is immediately under compensation unless he elects in writing not to 
accept, and that an older employee must wait thirty days before com- 
pensation applies, is a discrimination opposed by the spirit of the law. 

If the older employee were required to accept compensation by giving 
"notice in writing," there would not be the least doubt of the letter 
of the statute. But it is clearly stated that he must dcrline compen- 
sation by giving "notice in writing," and within a time limit of thirty 
days. I Therefore the implication is that he is under compensation and 
can only choose the liability side of the law by committing his desire 
to paper and presenting the document to the employer. 

It may he necessary to have a variance b<'twcen old and new employees 
under an elective compensation law. There are thousands of men — in 
the building trades industry, for instance— whose work necessitates 
frequent change of employers. Xo settled condition could prevail under 



D.gitizecbyG00glc 



employers' ■LIABILITY ACT DECISIONS. 25 

compensation unless provision were made for this changing status of 
employers and employees. 

A different situation confronts the old employees. After the employer 
has, possibly for months, and ofttimes acting upon legal advice, decided 
to "elect" compensation, he does so without consulting his employees. 
The latter should have the right of ascertaining what the decision 
means to them, and time is necessary to do this. Option is given 
these employees. They want to study "liability" and "compensation" 
and make their selection accordingly. 

Section 7 {paragraph 2) says that an old employee shall be "subject 
to the provisions of the act" if he shall "without giving aueh notice, 
remain in the service of such employer for thirty days after the 
employer has filed with said board an election to be subject to the 
terms of this act." 

That paragraph may jastly be interpreted to mean that compensation 
may be declined in favor of liability by giving "to his employer notice 
in writing." Also that all option is lost to the old employee who fails 
to so decline compensation within the time limit, and, after the expi- 
ration of thirty days, there shall be no doubt, and both employer and 
employees, old and new, are fully bound by the compensation law. 

It is unlikely that an employer would raise the contention that an 
old employee was not under compensation until the expiration of thirty 
days if negligence or carelessness caused injury or death. The lower 
compensation schedule would be preferred to the possibility, or prob- 
ability, of a heavy damage award from a jury. 

The City Electric Company wanted compensation to govern its rela- 
tions with its employees from and after Novtmlwr 14, 1911. That is 
proved by the voluntary acceptance of the compensation provisions of 
the Roseberry law on the date mentioned. 

Mr. McAvin waa a thoroughly competent electrician. That was 
admitted on all sides. He had worked for the City Electric Company 
for years. He knew the heavy death toll paid annually by electricians. 
Knowing that any da.v may be the last to a man engaged in this 
haitardous occupation, it may fairly be said that Mr. McAvin, had he 
wished to accept the liability part of the law and decline compensation, 
would have given the City Electric Company written notice before his 
death. He had three days in which to do this, and. while the law gave 
him thirty days, yet the period is exclusively reserved for declination 
of compensation and acceptance of liability by a "notice in writing" 
to the City Electric Company. No snch'noticC was given. 

If John Doe had been electrocuted at the same time as was Mr. 
McAvin, and had entered the employ of the City Electric Company 
on the same day — November 17, 1911 — John Doe's widow would, in 



Goo'^lc 



26 employers' liability act decisions. 

all probability, have received an award equal to three times her hus- 
band's annual average earnings. 

Mr. McAvin's widow and child are denied equal award, though his 
record of service covered a period of years, owing to the construction 
given to the thirty-day periml in which the deceased had the option 
of refusing compensation by accepting liability, which option was not 
used up to the time of death. 

I therefore dissent from the majority opinion of the Industrial 
Accident Board ruling against jurisdiction in this case for the reasons 
hereinbefore set forth. 

Will J. French, 

Note. — On April 19. 1912. applicant fllcd. In the Superior Court In and for the 
city and cnunCy or San Francisco, an application for the review of the award of the 
Board, denying compensation, rendered in pursuance of the foregoing opinion. After 

hntrlllK. the court, under date of August 2», 1"'" — ' — ■■ "- — -— ._._>_- .,.- 

award rendered by the Board herein. 



{No. 2— April 25, 1912.) 
(Chapter 399, Laws 1911.) 

HARRY CHRIST, AppJicont. vs. PACIFIC TELEPHONE AND TELEGRAPH 

COMPANY (A COBPOBATION), Defendant. 
BuBDEN OP Proof— Nature and Extent of Disability— I^oss ov Eabninq 

Capaciti. — The burden ot proof is upon the person claiming compenaalion, to 

prove the nature and extent of bis disability and also the probable loss of camiug 

capacity resulting tberefrom. 
Rule of Conhtbitction. — The proviBions of the act are to be liberally construed, 

with a view to effect its objects and to promote justice. 
Pabtiai Disability — Constedction of Term, — The tenu "partial disability" as 

used in section 8, subdlvpion 2-b of the act, is not to be re^^trictod to physical 

capacity merely, bat includes such injuries as circumscribe the workman's area 

of employment and lessen his wage-earning capacity. 
Increased Risk— Suitable Eufiayuent, — The mere fact that by reason of the 

injury sustained, the risk would be greater in following the old employment, does 

not necessarily carry with it the implication that the employment is nusuitable. 

The additional risk may be small or may be slightly increased, and one that that 

class of employment would readily assume. 
Particulab Injury— Ixjsb or Eve.— The loss of an eye by a laborer does not 

materially increase the risk of the employment or render tlie employment unsuit- 

Wage-barniko Capacity — Particular Injury — lx)ss or Eye — Pabtiai, Dia- 
ABIMTT. — liosa of an eye, by the applicant, a laborer, considered, aud, from the 
facts found, held to circumscribe bis area of employment. lessen his wage-eamine 
capacity, and to constitute a permanent "partial disability" within the meaning 
of the act, and to entitle the applicant to the compensation fixed by the net, that 
is, 65 per cent of bis probable weekly loss ot wages. 

Application lor coinpeiisatimi for loss of ait eye. The facts are 
stated in the opinion of the Board. Applicant was awarded one hun- 
dred ($100.00) dollars for medical and surgical treatment, etc., ninety- 
six and 52/100 ($96.52) dollars for the period of total disability and the 



EMPLOYERS' LIABILITY ACT DECISIONS. 2l 

further sum of one and 30/100 ($1.30) doUare per week during the 
remainder of the fifteen-year period limited by the act. 

Thos. V. Wickes and Francis M. Colvin, attorneys, for Applicant. 
Pillsbury, Madison & Sutro, attorneys, for Defendant. 
This application was filed by the above named applicant, Harry 
Christ, to adjust a controversy concerning eompensation under the 
"Employers' Liability Act," chapter 399, Laws of 1911, arising out 
of an injury sustained by applicant on the 14th day of December, 1911, 
while in the employ of the above named defendant. Pacific Telephone 
and Telegraph Company, a corporation, at the city of Stockton, Cali- 
fornia, 

It appears that the applicant entered into the employ of defendant 
on said day as a laborer and was to receive the sum of !f2.25 per day 
for his services. Defendant was laying its cables in one of the streets 
in said city and applicant was put to work breaking up the concrete 
pavement on said street along with a fellow-laborer, one Nick Andrews — 
Andrews holding a gad and applicant swinging a sledge. Upon strik- 
ing the gad a piece of metal flew from it and lodged in applicant's left 
eye, completely destroying the sight of the eye. 

After the happening of the accident, applicant was taken to the Saint 
Joseph's Home and Hospital at Stockton for treatment and on the 19th 
day of December, 1911, his injured eye was removed by Dr. Barton J. 
Powell, who attended him while in the hospital and for some time 
thereafter. 

Under ordinary circumstances a person will completely recover from 
an operation of this character in three weeks or a month and will then 
be able tn resume hard labor. Here, however, inflammation set in and 
although applicant was discharged from the hospital on the 30th day 
of December, 1911, as a matter of fact hp did not fully recover from 
his injury until the 25th day of February, 1912. Applicant then 
became, and ever since said time has been and now is, physically able 
to perform the work of a day laborer and was then and now is, fully 
relieved and cured of the effects of the injury, except that by reason 
thereof, he has last the entire sight of his left eye. 
Section 8 of the act provides that : 

"Section 8. "Where liability for compensation under this act 
exists the same shall be as provided in the following schedule : 

(1) Such medical and surgical treatment, medicines, medical 
and surgi<'al supplies, crutches and apparatus, as may be reason- 
ably 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 em- 
ployer to be liable fur the reasonable expense incurred by or on 



Coo'^lc 



28 employers' liability act decisions. 

behalf of the employee in providing the same; provided, however, 
that the total liability under this subdivision shall not exceed the 
sum of $100.00. 

(2) If the accident causes disability, an 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: 

(ffi) If the accident causes total disability, sixty-five per cent 
tif the average weekly earnings during the period of such total dis- 
ability ; provided, that if the disability is such as not only to render 
the injured employee entirely incapable of work, but ako so help- 
less as to require the assistance of a nurse, the weekly indemnity 
during the period of such assistance shall be increased to one 
hundred per cent of the average weekly earnings. 

(6) 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 periods of each 
snch total or partial disability shall be in accordance with said sub- 
sections (a) and (6) respectively. 

(d) Said subsections (a), (6) and (c) shall be subject to the 
following limitations : 

Aggregate disability indemnity for a single injury shall not 
exceed tliree times the average annual earnings of the employee. 

If the period of disability does not last more than one week from 
the day the employee leaves work as a residt of the accident no 
indemnity whatever shall be recoverable. 

If the period of disability lasts more than one week from the 
day the employee leaves work as the result of the accident, no 
indemnity shall be recoverable for the first week of the period of 
such disability. 

The aggregate disability peri(id shall not. in any event extend 
beyond fifteen years from the date of the accident." 

The defendant admits that it is liable for compensation under the 
foregoing schedule as follows, to wit: 

(1) The reasonable expense incurred by applicant in providing ncces- 
sar.y medical and surgical treatment and supplies, which amount 
defendant stipulated the full sum of $100.00, the limit fixed by sub- 
division (1) of the above section. 

(2) One hundred per cent of applicant's wages during the time that 
he was ao helpless as to rc(iuire the a.ssistanee of a nurse, it being stipu- 
lated that said amount should be allowed during the entire period of 
his fonfinement in the hospital, exclusive, however, of the first week 
after the acei<lent. for which no indemnity is allowed under the act. 

(H) Sixty-five per ci-iit of applicant's wages during the period of 
total disability, it being stipulated that both parties were lo accept the 
opinion of the physician as to Ihe time when applicant should he 
physieally abli^ to resume his work. 

i:Qi,.r::::G00'^lc 



employers' LIABILTTT ACT DECISIONS. 29 

(4) Sixty-five per cent of applicaDt'3 loss of wages during the period 
of partial disability fisi^ by the Board. 

Prom tlip foregoing statement, it will be seen that the only question 
in dispute is "Has the lo?s of an eye by the applicant, a laborer, caused 
permanent partial disability within the meaning of subdivision 2 (fe) of 
section 8, snpra, it being admitted that the sight of the other eye was 
not impaired by the accident and that the applicant in all other respects 
has fully recovered from the effects of his injury?" In other words, 
what is the meaning of the words "partial disability" as there used* 
If there is a partial disability, then under subdivision 2 of section 9 
of the act : 

"The weekly Ices in wages referred to in section 8, shall consist 
of the difFerenee between the average weekly earnings of the injured 
employee, computed according to the provisions of this section, and 
the weekly amount which the injured employee, in the exercise of 
reasonable diligence, will probably be able to earn, the same to be 
fixed as of the time of tlie accident, but to be determined in view 
of the nature and extent of the injury." 

The applicant strongly urges that his injurj- is of such a nature and 
extent that even though the sight of his remaining eye i^ not in anywise 
affected and even though he may be phj'sically able to do work of the 
same character as that done prior to the injury, still owing to the loss 
of his eye, his area of employment is circumscribed and he will not be 
able to compete on terms of equality with other laborers, and that the 
risk of accident is increased so that his injurj' is a "permanent partial 
disability" which will result in the loss of wage earnings and for which 
he is entitled to compensation for the full fifteen-year period. 

The defendant urges that when applicant becomes physically able to 
do the work of a day laborer, there can be no "partial disability" and 
that, therefore, compensation should cease. 

In its opinion filed in the matter of Martha McAvin et al., Applicants, 
vs. City Electric Company, a corporation. Defendant, the Bcwrd called 
attention to the fact that the burden of proof is not changed by the 
compensation act, and that the burden is upon the person claiming com- 
pensation, to show all the facts necessary to entitle him to relief under 
the act. Thus, the applicant must show the nature and extent of his 
disability and also the probable liisn of earning capacity resulting there- 
from. In the matter now before us, but very little evidence was pre- 
sented upon this point and the evidence presented was not satisfactory. 
However, both parties suggested that the matter be left entirely to the 
Board and that the Board should Ije at liberty to examine all available 
statistics, draw its own concIusicHis and make its award in accord 
therewith. 



D.gitizecbyG00glc 



30 EMPLOYEBS' LIABILITY ACT DECISIONS. 

As we have stated, the question first to be considered is the meaning 
of the words " partial disability" as used in section 8, siiMivisions 2-3 
of the aet. Does "partial disability" include only physical disability 
to do the work heretofore done, or does it include the case where the 
injury partially excludes the workman from his former employment and 
makes him less able to obtain work, thougtt it would not make him unable 
to do the work if he could obtain it ! 

A man might be able to do the same work that he could have done 
prior to the accident, but by reason of the injury might be exposed to 
a greatly increased risk, thereby making it unfair and unreasonable to 
rwiuirc him to resume liis former oceujiatiun or to refuse him compensa- 
tion if he did not. So that if the words are to be construed in the 
narrow sense and are to be restricted to the physical power to do the 
work, the act would be productive of the greatest injustice. 

Compensation legislation is primarily intended to reimburse a work- 
man injured through an industrial accident for any financial loss that 
he may sustain thereby. Such legislation does not ordinarily take into 
account pain endured as a result of the accident or disfigurement that 
may result therefrom. It is the wage earning ability which alone enters 
into consideration and the amount of compensation is made dependent 
upon the probable loss of wage earning, to be determined in view of the 
nature and extent of the injur;'. It would seem then, as a general 
principle, that a workman has brought himself within the meaning of 
the act, when he shows that by reason of an accident arising out of and 
in the course of his employment, he has sustained an injury which 
circumscribes his area of employment and lessens his earning capacity, 
and this whether or not the injury has diminished his physical capacity 
to follow his former occupation. 

Adolph S. Hcdeger, the chief foreman of the underground construc- 
tion for defendant, and a witne.-s called in behalf of defendant, was 
asked, "If two men applied, one with one eye and the other with two 
eyes, would you select the oue with two eyes, other things being equalt" 
and in reply testified, "I would— this probably would be tiie tendency 
of the foremen that I control." 

Employers generally discriminate against a one-eyed man and in 
favor of a man with unimpaired vision. 

An examination of the various compensation acts and of the decisions 
thereunder show that "disability" is usually construed to mean more 
than mere phj-sical incapacity to do work. Foir example, the wsrk- 
men's compensation act of the State of Washington (Chap. 74, Session 
Laws 1911) defines "permanent partial di.sability" as "the loss of 
cither foot, one leg, one hand, one arm, one eye," etc., and provides 
that; 



D.gitizecbyG00glc 



employers' liability act decisions. 31 

"For any pprmanent partial disability resulting from an injury, the 
workman shall r<;mve compensation in a lump sum in an amount equal 
to the extent of the injury, to be detrided in the first instance by the 
department, hut not in any ease to exceed the sum of $1,500.00. (Sec- 
tion 5, subdivision 3-/.) " 

The Board is therefore of the opinion that the words "partial dis- 
nbitity" as used in the section of the act above cited are not to be 
restricted to physical capacity merely, but include such injuries as 
eircuniaeribe the workman's area of employment and lessen his wage 
earning capacity, and that the injury sustained by the applicant is a 
"pennanent partial disability" within the meaning of the act. 

The next question to be determined is the probable weekly loss in the 
wage earning capacity of the applicant, to be computed in accordance 
with section 9, subdivision 2, svpra. 

Ability to earn is mainly dependent upon the following factors 
(Visual Economics by Magnus & Wurdcman, page 26, cited hy attor- 
neys for applieaot) : 

(1) Unimpaired functional power of bodily organs. 

(2) Technical knowledge and skill required to carry on the vocation. 

(3) The ability of the individual to compete in the labor market. 
These factors can not be regarded as equal in value, the first two 

l«'ing of nearly equal value, while the third is of much less value. 
Taking these factors up in the order above : 

(1) Fvnctiuiutl power of bodily oryaits. Within a comparatively 
short time, applicant's remaining eye will adapt itself to the double 
duty required of it and the loss of the other eye will not materially 
impair the functional power of bis body to perform the common labor 
for which he ha.s fitted himself. The applicant testified that he would 
be exposed to a greater risk in following his occupation. The mere fact 
that the risk would be greater does not carry with it the implication that 
the employment i.s unsuitable, because the additional risk might be 
small, or it might be very slightly incrca'^ed by reason of the injury 
and one that that class of employment would readily assume. (Eyre vs. 
Houghton, etc., Vol. Ill, Butterworth 's Workmen's Compensation Ca.ses 
(England), 250.) 

The Board has found that the risk to applicant is not materially 
increased and that the same employment followed prior to the accident 
is not ua-initable after the accident. 

(2) Technical knowledge. Applicant's technical knowledge and skill 
were in uowise inipaire<l by the accident. 

(3) Abilily lu compftc. The Board is of the o])inion that applicant's 
ability fairly to compete in securing employment is pennanently and 
substantially diminished and that the amount which he will be able 



Goo'^lc 



32 employers' liability act decisions. 

to earn, in the exercise of reasonable diligence, will in view of the 
nature and extent of his injurj' be substantially less than the amount 
he could have otherwise earned. 

As has been stated, employers generally discriminate against a one- 
eyed man and in favor of a man with unimpaired vision. This fact is 
clearly shown by the testimony of Adolph Hedeger, a foreman in the 
employ of respondent, to which reference has been made. It does not 
appear necessary to analyze the reasons for this discrimination, since 
the Board has only to determine the loss which applicant sustains 
through his inability to compote on equal terms with his fellow laborers. 

A very thorough exatiiination has been made of the various statistics, 
compensation acts and of the decisions of the various states and foreigrn 
countries, in order to determine a general rule which might be laid 
down to cover this loss of earning power. 

The author of "Visual Economics" (supra) attempts to work out 
a mathematical formula, based upon the factors entering into the wage 
earning capacity, for use in detennining the loss sustained through the 
various forms of impairment of vision, but so much has to be assumed 
as a basis of forecalcidation that there seems to be little room for calcu- 
lation, and the loss of earning power must be fixed as most states and 
countries appear to have fixed it — so far as formulating a general rule 
is concerned — arbitrarily, save as sound judgment may modify arbi- 
trary rules in order to make them fit the facts in any particular case. 

An examination of statistics shows a wide diversity of opinion as to 
the I0S.S i)S the earning capacity resulting from the loss of an eye. In 
the various foreign countries where compensation acts govern, an 
allowance Is made ranging anywhere from 20 per cent of the amount 
allowed for total disability to 50 per cent of such amount. 

The legislatures of several of the states in their compensation acts 
have fixed an arbitrary amount to be allowed for certain specified 
injuries. In some instances this amount is the only amount allowed to 
an injured workman, while in other states the amount fixed is an amount 
which is allowed in addition to the comi)eusation for partial disability 
fixed by the act. 

For the purpose of illustrating the allowances made, attention is 
railed to the compensation acts of the following states : 

Massachusetts Compensation Act, chapter 751, Laws 1911: 

For partial disability. 50 per cent of the loss of weekly wages ($10.00 
maximum limit per week) for a period of three hundred weeks. 

Section 11. part 2 of the act, provides: "In cases of the following 
specified injuries the amounts hereinafter named shall be paid in addi- 
tion to all other compensation * ' ' (b) For the loss by severance 
of either hand at or above the wrist, or either foot at or above the 
nnkle. or the entiri: and irrevocable loss of the sight of either eye, one 



EMPT.OYERS' LrABIUTT ACT DECISIONS. 33 

half the avetHRe weekly wages of the injured person, but not more than 
ten dollars nor less than four dollars per week, for a period of fifty 
weeks. ' * 

Nevada Compemation Act, chapter 183, Laws of 1911: 

For partial di.sability, 60 per cent of the weekly loss of wage earnings 
90 long as disability shall exist, with a maximum limit, however, of 
$3,000.00. 

Seetion 6 • • • provides; "That in addition to the foregoing 
payments, if the injured person loses one foot, one hand or one eye, he 
shall reeeive during a fnll period of five year.s 15 per cent of his average 
weekly earnings, provided that in no case shall all the payments received 
herein exceed in any month the whole wages earned when the injury 
occurs, nor shall the added percentage continue longer than to make all 
payments aggregate $3,000.00." 

A'CM- Jersey Compensation Act, chapter 95, Acts 1911: 

Departs somewhat from the .scheme of the act^ above cited in that 
while it allows a certain specified weekly payment for partial disability, 
Section 11 (c) of said act provides: "For disability partial in char- 
acter but permanent in quality, the compensation shall be based 
upon the extent of such disability. In ensas included in the following 
schedule, the compensation shall be that named in the schedule, to wit : 
Eye — For the loss of an eye, fifty per cent of the daily wages during 
one hundred weeks." 

Illinois Compciisnlion Act, Senate Bill No. 283: 

Seems to recognize that certain disabilities cause loss of earning power 
even though tliey do not make the injured party [ihj'sicatly unable to 
resume his former occupation. 

Section 5 (c) of said bill as passed by the legislature provides: "If 
an employee, by reason of any accident ari.sing out of and in the course 
of his employment, receive any serious and permanent disfigurement to 
the hands or face, but which injury does not actually incapacitate the 
employee from pursuing his usual or ciLstomary employment so that 
it is possible to measure compensation in accordance with the scale of 
compensation and the methods of computing the same herein provided, 
such employee shall have the right to resort to the arbitration provisions 
of this act for the purpose of determining a reasonable amount of 
compensation to be paid to such employee, but not to exceed one quarter 
(i) of the amount of his compensation in case of death." 

Attention is also culled to the compensation acts of Maryland, Mon- 
tana, and Washington. 

The various insurance companies which issue personal accident pol- 
icies show just as great a divcrtrencc in the amounts allowed as do 
the various state acts and the amounts allowed by the administrative 
3—11595 



Goo'^lc 



34' EMPLOYEBa' LIABILITY ACT DECISIONS. 

boards in foreign countries. For example, The Royal allows one sixth 
aa much for the loss of one eye as for the loss of two ; The .^tna allows 
one eighth; The Travelers allows one third and the Pacific Mutual and 
Accident Life each allows one half. 

Applicant asked the Board to allow an amount to be determined in 
accordance with the mathematical calculations laid down in "Visual 
Economics," supra, while an the other hand, defendant cited certain 
English cases to show that no allowance should be made after the 
applicant is able to resume work. 

In addition to those cases cited by defendant, the Board has examined 
all other available reports from the Engli.sh, New Zealand, and Cana- 
dian cases, and its conclusions may be summed up by the following 
quotatiOD : 

"The opinions and awards of different arbitrators vary enor- 
mously as to what effect is produced upon a workman by the loss 
of one eye. Awards which appear to be exactly opposite and to 
deal with the same cla-ss of cases have been given, in the one case 
holding the injured man can do his old work, in the other case 
holding he can not. In each case the Court of Appeals appears 
to consider the question to be chiefly one of fact — at all events, the 
awards have not been disturbed." (Douglas Knocker, "Accidents 
in their Medico Aspect," page 935.) 

The foregoing citations and references show the impassibility of 
formulating any general rule from the atatistiits now available, and 
further that in the event any such rule should be formulated such rule 
should be modified as sound judgment may require to fit the particular 
facts in each case. 

In "Visual Economics" (supra), the author fixes the loss of earn- 
ing power in occupations requiring a high visual requirement at a 
much larger percentage of the wage earning than he does for those 
requiring low powers of vision. One can readily appreciate that such 
niiLst be the case. 

The applicant, Harry Christ, was by occupation a laborer, and as 
such the Board in the exercise of its judgment found that the loss of 
his eye caused permanent partial disability and fixed his loss in wage 
earning capacity at the sura of $2.00 per week, and as provided by sec- 
tion 8, subdivision 2 6 of the act, allowed hira 65 per cent of this amount 
or $1.30 per week during the remainder of the full fifteen-year period 
limited by section 8, subdivision 2 d of the act, or until otherwise 
oniered by the Board. 

For the reasons above stated, we are of the opinion that the applicant 
should be awarded the compensation fixed. 

A. J. PiLLSBURY. 

Will J, French. 
Willis I. Morrison. 

i:„iP-:-.G00'^lc 



EMPLOYERS LIABILITY ACT DECISIONS. 

(No. 4— May 10, 1912.) 

(Chapter 399, Laws 1911.) 



Right to Compensation — Good Faith Essentiai- — While the right to compea- 
sation Is an absolute right fixed by the act, the administ ration oF the act demanilB 
the utmost good faith of thoae who come under its terms. 

BviDBNCE — Cbedibilitt OF WITNESS, — Id many instaoces. the only available evi- 
dence of the nature and extent ot the injury is the testimony of the injured 
workman, who is presumed to speak the truth (C. C. P. 184T). If the work- 
man's testimony be discredited, and it clearly appears that he Incks good fnith. 
his entire claim should be viewed with doubt and suspicion. The pleadings and 
testimony of applicant reviewed and held to indicate either a deliberate attempt 
to capitalize an old injuTy at expense of employer or an utter disregard of the 
truth by applicant aud bis attorneys. 

Medical and Subgioal Tbeatment — Burden of Pkoof.-— To recover (or medical 
and surgical expense incurred, applicant must show <1) the necessity for such 
treatment, (2) that the employer, after notice, refused or neglected to furnish 
the same or that the treatment offered was not suitable, and (3) the reasonable 
value of the treatment procured by applicant. 

.T II MSDICTION ^Dispute ob COntrovebsy. — The Board is a board of limited juria- 
diction. It has jurisdiction only after a dispute or controversy concerning com- 
pensation has arisen between the employer and workman. 

PrRPfiSE OF Act — Pbocedure. — The purpose of the act ir to afford a quick and con- 
venient method of settling claims for personal injuries sustained by a workman 
and to avoid litigation. The' workman must tirst apply to his employer for the 
compensation scheduled, and can not appeal to the Board until thereafter the 
employer neglects or refuses to pay the compensation. Until the workman 
makes this demand and the employer refuses or neglects to pay the compensa- 
tion, there can be no dispute or controversy concerning compensation. 

Aubnduents^Discbetion of Boabo. — The allowance of an amendment to a plead- 
ing rests within the discretion of the Board and amendments should be permitted 
whenever the purposes of the set will be forwarded by so doing. 

Application for compensation for pewonal injury. The facts are 
stated in the opinion of the Board. The applicant was denied any 
compensation for medical or surgical treatment, etc., hut was allowed 
full compeasation for two weeks' disability. 

Francis M. Colvin, attorney, for Appliciiut. 
Pillsbury, Madison & Sutro, attorneys, for Defendant. 

For some months prior to the 16th day of February, 1912, the 
applicant, Harry V. Christy (also known as Harry Verncr), worked 
for the defendant, Standard Oil Company, a corporation, at its plant 
at Richmond. Contra ('osta (,'onnty. in this state, as a laborer or roust- 
about, and received the sum of $2.30 per day, as wages, his average 
weekly earnings being $13,80. 

On the morning of the 16th day of February, 1912, lie was directed 
to assist in repairing a building belonging to the defendant and, more 
particularly, to assist in placing timbers under the floor of this building. 
T* appears that during the performance of such labor, applicant placed 



36 employers' liability act decisions. 

his back under a 6 by 8 inch timlier atjoiit twenty feet long, to assist 
in raising that timber to its place. Applicant alleged in his original 
application that in so doing he accidentally injured )iis back and 
permanently dislocated his spinal column. 

It appears that the applicant did not. at that time, report his injury 
to defendant or say anything to any of his fellow laborers about the 
nature or extent of his injuries, nor did he say anything about his 
injurj' at any time during the succeeding twelve (12) days, except 
that on the morning of the 17th day of February, in response to a 
general question as to how he was feeling, he replied: "Jly back was 
pretty sore last night, but I do not think it will amount to anything." 

Despite his injury, applicant continued to work for twelve (12) days 
thereafter, and during said period performed various kinds of heavy 
labor, including the loading and hauling of lumber, wheeling rock in 
an iron wheelbarrow, as a member of a concreting crew, and was able 
to perform, and did perform, all the said work equally as well as any 
of his fellow laborers, and without complaining either to defendant or 
to any of his fellow laborers. 

On the 28th day of February. 1912, applicant reported to one of 
defendant's timekeepers that a pain in his back had become so severe 
that he was no longer able to continue at work. Thereupon defendant 
immediately instructed applicant to consult a physician, Dr. Clark L. 
Abbott, in Richmond, and gave him an order, authorizing and instruct- 
ing that physician to examine applicant, and to furnish such medical 
care and attention as might be necessary, and to charge, the same to 
defendant. Dr, Abbott found considerable rigidity in the muscles of 
applicant's back to the right of his spinal column, which he diagnosed 
as a slight muscular strain, apd for which he prescribed complete rest 
for two weeks. This muscle rigidity completely disappeared by the 8th 
day of March, 1912. Applicant consulted Dr. Abbott, or his assistant. 
on the fourth, seventh and eighth days of March. 1912, and during this 
time was furnished such medical treatment as his case demanded. 

Applicant testified that while under Dr, Abbott's care he met a man 
"from up the country," whose name he did not know, who advised 
him to see the attorneys who now represent him, and that after seeing 
them he consulted Dr. Gilbert M. Barrett, a phjsician recommended 
by his attorneys, and had an X-ray plate taken of his back. Applicant 
testified that he consiilletl Dr. Barrett two or three times and then went 
to Dr. Walton Preston for treatment on the 24th daj- of March, 1912, 
and that he was under Dr. Preston's care upon the date of the hearing. 

Applicant knew that Dr. Abbott, acting under instructions from 
defendant, was ready to furnish all necessary medical and surgical 
attention and supplies, but after the 8th day of March. 1912, he never 



EMPIX)YERS' LIABILITY ACT DECISIONS. 37 

applied to Dr. Abbott or defendaDt for any further treatment, and 
without justifipation determined not to submit himself for treatment. 

Although Dr. Abbott told applicant that defendant would allow him 
the eonipensation fixed by the act, and explained what this compen- 
sation would be, applicant did not make any claim or demand on 
defendant for compensation prior to the filing of his application herein. 
This application was filed on March 21, 1912, and on the twenty-second 
day of that month defendant was served with a notice of injury and 
a claim for compensation, which fixed the date of the accident as the 
27th day of Pebruarj', although applicant testified that the accident 
occurred some days prior to that date, and must have known this when 
the notice was served, so that it would seem that his only purpose in 
fixing the wrong date was to bring this notice within the thirty-day 
period limited by section 10 of the act. 

At the conclusion of the hearing applicant applied for and was 
granted leave to file, and did file, an amendetl application to correspond 
to his proof. The allegations in this amended application will be 
referred to later. 

Counsel for defendant in their argument presented the following 
points : 

First — The merits of the case, (a) The cause, nature and extent 
of the injury; (b) The right to an allowance for medical care and 
attendance. 

Second — The jurisdiction of the board. 

Third — The application for leave to file an amended application. 

Considering, then, the points presented; 

First — The merits of the case. While the right to compensation 
is an absolute right fixed by the act, the administration of the act 
demands the utmost good faith on the part of those who come under 
its terms. 

This Board, the employer who has elected compensation and the 
physician, all stand in practically the same position. A physician, in 
the absence of physical evidence of injury, must be guided by tht 
statements made to him by his patient. In the absence of some fraud- 
ulent ulterior motive, such statements are always accepted as being 
made at least in good faith, and without intent to deceive. In many 
instances, this Board can have no evidence of the nature and extent 
of the injury, other than the statement of the applicant. In their brief, 
counsel for applicant cite section 1847 of the Code of Civil Procedure, 
from which we quote as follows; 

"A witness is presumed to speak the truth. This presumption, 
however, may be repelled by the manner in which be testifies, by 
the character of his testimony, or by evidence affecting his char- 
acter for truth, honesty or integrity, or his motives, or by contra- 
dictory evidence; and the jury are the exclusive judges of his 
credibility. ' ' 



38 EMPLOYE 

For the reason above stated, if the testimony of the applicant be 
discredited, and it clearly appears that he lacks the essential element 
of good faith, lie may expect this Board to view his claim with doubt 
and suspicion. 

In this matter the original application (which applicant testified 
that he read and which he signed), the notice of injury and claim for 
compensation (signed by his attornejs) and the amended application 
(signed by applicant) all contain statements which applicant mnst have 
known were untrue, thereby showing a deliberate attempt to capitalize 
an old injury at the expense of respondent or an utter disregard for 
the truth. 

The testimony of applicant upon the hearing contradicted itself in 
many essential particulars, and furnishes additional grounds for believ- 
ing that his claim is based largely upon attempted deception. The lack 
of intelligence displayed by the applicant may, perhaps, partially excuse 
him. but it does not excuse his attorneys, wlio prepared and signed the 
notice and applications. While these attorneys accept resiKinsibility 
for the mistake in the date of the notice and in seeking to recover 
$100.00 for the professional services of Dr. Gilbert M. Barrett, when 
in fact his charge was only $5.00, by stating that the former was an 
overeight and the latter a mistake in names made by a clerk in their 
ofBee, the Board does not feel that the explanation offered is satis- 
factory. 

(a) The cause and nature and extent of the injury: For (he reasons 
above stated, the Boawd has attached but tittle importance to the testi- 
mony given by the applicant, except in the particulars where his testi- 
mony was corroborated by the testimony of other credible witnesses. 
Yet the testimony, when so viewed, does show that applicant did in 
fact meet with an injury on the 16th day of February, 1912, caused 
by an accident arising out of and in the course of his employment with 
defendant, and that although applicant continued to perform heavy 
labor until the 28th day of February, his condition then became such as 
to totally disable applicant and required him to refrain from all labor. 

Ujioa the hearing, the X-ray plate above referred to showed that the 
articulate process of the fourth lumbar vertebra on the left side of 
applicant's spinal column had been crushed into the fifth lumbar 
vertebra, causing a curvature of the spine. Applicant claimed that the 
injury described was caused by the accident on February 16, 1912. 

The consensus of the medical testimony was to the effect, (1) That 
the abnormality shown ou the plate must have existed for some time 
prior thereto; (2) That it would be impossible for a man who sustained 
the shock resulting from an injury such as shown on the plate to 



D.gitizecbyG00glc 



EUPIOYEHS' LIABILITY ACT DECISIONS. 39 

GODtinue working; (3) That at most the injury caused a muscular 
strain, and (4) That this strain was not serious. 

The physician called by applicant testified substantially as follows; 

Dr. Ferdinand Freytag (the physician who made the plate) r "The 
injury shown upon the plate is over a month old." (X-ray was taken 
on March 12.) 

Dr. Walton Preston: "A man who sustained such an injury could 
not work for three days thereafter ; that is why I think the curvature 
is not recent. The applicant can do hard manual labor now. The 
muscular condition I regard as of no consequence. While the existing 
condition was brought about by some sprain, it is not a definite injury. " 

Dr. Gilbert M. Barrett: "I do not think that the accident described 
could have caused this injury, although I could not say definitely. 
Crushing would have to be produced by a weight directly straight or 
laterally. I do not think it possible that a man receiving such an injury 
as is shown on the plate could work at hard labor. In my examination, 
I saw nothing that seemed to be out of the ordinary, except the curva- 
ture of the spine. From the physical examination, I wa.f unable to 
detect any muscular disability which would prevent continuance of 
labor, since it had already been done subsequent to the injury." (Dr. 
Barrett examined applicant about the 10th day of March, 1912.) 

Dr. Clark L. Abbott (defendant's physician): "I told applicant 
that I thought he had strained some of the nniscular attachments and 
that he would have to lay off for possibly two weeks. There was con- 
siderable muscular rigidity when I first examined him, but this all 
disappeared by the 8th day of March, 1912. The injury shown on the 
plate is an old injury." 

The Board found as a fact that the only effect of the accident on 
February 16, 1912, was to produce a muscular strain, causing total 
disability from February 28, 1912, to March 20, 1912. and awarded 
the amount fixed by section 8 (2) (a) of the act, to wit: $17.94. 

(6) Medical care and attendance: In his original application appli- 
cant claimed $100.00 as an allowance for the medical treatment 
furnished to him by Dr. Gilbert M. Barrett. Dr. Barrett testified that 
his charge was only $5,00. In his amended application, applicant 
abandons this claim and asks for $100.00 for the professional services 
of Dr. Walton Preston. Incidentally, it should be stated that applicant 
did not prove the value of any medical services rendered, except that 
rendered by Dr. Barrett, When an applicant asks for such allowance, 
the burden is upon him to prove the reasonable value of the expense 
incurred in this behalf. 



D.gitizecbyG00glc 



40 EMPLOYEns' LIABILITY ACT DECISIONS. 

The claim for medical and surgical care and attention arises under 
section 8 of the act, which provides : 

"Sec. 8, Where liability for compensation under this act exists 
the same shall be as provided in the followiufr schedule : 

(1) Such medical aud surffical treatment, medicines, medical 
and surgical supplies, crutches and apparatus, as may be reason- 
ably 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 b.v 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 employee in providing the same; provided, however, 
that the total liabilitv under this subdivision shall not exceed the 
sum of $100.00." 

While section 10 of the aet gives the injured workman thirt.v days 
after the happening of the injury in which to serve the notice required 
by the aet, good faith and public policy require that he report his injury 
to his employer, as soon as it is known that medical or surgical attention 
will be required. Except in cases of emergency, the employer can not 
be charged for medical and surgical expenses incurred by applicant, 
unless he has notice of the injury and thereafter neglects or refuses to 
furnish the required treatment. 

Applicant did not report his injury to his employer or consult a 
physician until twelve days after the accident, although he testified that 
the pain was very severe. He tried to explain this omission by saying 
that he did not want to lose the time. When his attention was called 
to the fact that two Sundays intervened, he said that he never thought 
of that. Finally, he said that he did not report the injury because he 
was afraid of losing his job. Applicant must have known from his own 
experience that the excuses offered were not true, for on a previous 
occasion, while in the employ of defendant, he met with an accident 
and was then furnished with all necessary medical attention, was 
allowed full wages while totally disabled, and when able to do light 
work he was temporarily given a position as a watchman at higher 
wages and longer hours than he had earned prior to the injury. 

When the applicant reported this injnrj- to his back, defendant 
promptly furnished him all neeessary medical care and attention and 
would have continued to furnish him with such treatment as long as 
required, if applicant had not thereafter, without reasonable justifica- 
tion, neglected to apply for further treatment. Under such circum- 
stances, the defendant can not ho held liable for the medical treatment 
secured by applicant. 

flrroiid — The jurisdiction of the li<)ard. Sinee this Board is a Board 
of limited jurisdietioD. it follows that it has jurisdiction only in such 



...Goo'^lc 



EMPL0YER8' LIAllll.ITY ACT DECISIONS, 41 

cases as clearly come within the grant of power under the act. This 
grant is contained in section 12 of the act, which provides: 

"Any dispute or controversy concerning compensation under 
this act, including any in which the state may he a party, shall be 
submitted to a Board consisting of three members, which shall 
be known as the Industrial Accident Board." 

Under section 15 of the act, it has power to act. 

"Upon the filing with the Board by any party in interest of 
an application in writing stating the general nature of any dispute 
or controversy concerning compensation under this act, it shall fix 
a time for the hearing thereof, which shall not be more than forty 
days after the filing of such application." 

It, therefore, clearly appears from the act that a "dispute" or 
"controversy" is an essential condition to the vesting of anj' jurisdic- 
tion in the Board, and that in order for an applicant to state a cause 
of action he must set forth in his application "the general nature of 
the dispute or controversy concerning compensation," 

The application filed herein did not meet with the requirements of 
sfrction 15 of the act (supra), and upon the hearing applicant admitted 
tnat the first demand for compensation made upon defendant was the 
demand contained in the application herein. 

In the English Compensation Act of 1906, the grant of jurisdiction 
i,s contained in section 1 (3) of the act, which provides: 

"If any question arises in any proceedings under this act as 
to the liability to pay compensation under this act (including 
any question as to whether the person injured is a workman to 
whom this act applies), or as to the amount or duration of com- 
pensation under this act, the question, if not settled by agreement, 
shall, subject to the provisions of the first schedule to this act, be 
settled by arbitration, in accordance with the second schedule to 
this act." 

The following quotations from the decisions of the English courts 
clearly illustrate the rule there laid down: 

"There must first of all be a 'question' between the parties, and 
then there is another condition, which may or may not oust the 
jurisdiction — namely, that the question is not settled by apreeraent. 
• • " The mere giving of a notice for a claim for compensation 
did not raise a 'question' between the parties. The 'question' to 
be settled by arbitration must be a (piestion as to the liability to 
pay compensation, or as to the amount or duration of compensa- 
tion." (rollins. M. F.. Firlil vs. Loiigdcn & Sons, November 15, 
1901, i W, C. C, 20, 85 L. T. 571.) 

"The (piestion raised in this ca-sc seems to me to 1h' one of great 
importance, because it conies to this, whelher an employer, perfectly 
willing to yield to the law and to give the workman all that he is 
entitled to, can escape thif penalty of litigation. In this ease it is 



.-,00' 



,glc 



42 EMPI.0YEB8 LIABILITY ACT DECISIONS. 

clear that the employer was willing to do everything that the law 
obliged him to do." (Jones vs. Great Central Railway Company, 
November 15, 1901, 4 W. C. C. 23.) 

In the matter now before us, it is clear to the Board that the defendant 
was willing to do everything that the law obliged it to do. 

"The jurisdiction of the county court judge to make an award 
is very particularly limited by section 1 (3) of the act. The ques- 
tion to be settled by arbitration is not any question between employ- 
ers and their workmen, but any question 'as to the liability to pay 
compensation under this act * * * or as to the amount OJ" 
duration of compensation under this ae-t." {Merrer vs. Tlillon, 
November 8, 1909, Court of Appeal, Eng, 3 B. W. C. C. 6.) 

Not knowing that the applicant was a minor and entitled to full 
wagps, the insuranee company paid her 3s. 6d. per week, instead of ten 
shillings weekly, down to May 12th. Then they got a formal notice of 
proceedings, demanding the balance, and on May 20th tendered the 
balance, which was not accepted, as costs alleged to be due were not 
also tendered. 

Parwell, L. J.: "Your showing is that the solicitor was very active 
in making costs. I don't think we require any authority to enable us 
to prevent solicitors making casts in this way." 

The Master of the Rolls said that he was only sorry that the costs 
could not be made to fall upon the shoulders that should bear them. 
He regretted that the solicitor should have thought himself justified 
in commencing proceedings for which he (the learned judge) could 
discover no manner of excuse. He agreed to the dictum of Lord Justice 
Stirling in Field vs. Longden {4 W. C. C. 20), that the Wca-kmen's 
Compensation Act was intended for the benefit of workmen and not 
for the benefit of the legal profession. {Smith vs. The Abbey Park 
Steam Laundry Co., Ud., Court of Appeal, Eng. 2 B. W. C. C. 142.) 

It has also been held that there was no jurisdiction, and that no 
(jnestion had arisen, where the employer has had no opportunity of 
either paying or disputing his liability, as where a notii-e of accident 
was given on one day and proceedings for arbitralion were tiiken the 
next day. (Willis, Workmen's Compensation Act, 1906, at page 53, 
citing Call-don Shipbuilding, etc., Co. vs. Kennedy (1906), 43 S. L. R. 
430.) 

The purpose of the California act is to afford a quick and convenient 
method of settling claims for personal injuries sustained by a workman 
and to avoid litigation. The workman must first apply to his employer 
for the compensation allowi'd under this act. and cannot appeal to this 
Board until the employer refuses to pay the compensation. When 
applicant reported his injury, defendant promptly furnished him with 
medical care and attention. If a demand had been made by applicant 



Goo^^lc 



employers' LIABll-rxY ACT DKC19I0NS. 43 

for compensation during the time applicant was under Dr. Abbott's 
L-are, it would have been paid. Upon a refusal to continue the payment 
a dispute would have arisen whitli could have then been referred to this 
Board. We desire to concur with the statements made in the Smith 
case (supra), and are of the opinion that they apply with equal force 
here. 

Upon the hearing, the defendant stipulated that in the event the 
Board should determine that it was without jurisdiction, defendant 
would waive this question and consent to an award upon the merits; 
otherwise, clearly, the Board would have been without jurisdictian. 

Third — The application for leave to file an amended application. The 
amended application offered (1 ) fixes the date of the accident at Febru- 
ary 16, 1912; (2) abandons the claim of a dislocated hack and alleges 
merely that "the applicant's back was verj- seriously injured," and (3) 
asks for $100.00 for medical services rendered by Dr. Walton Preston 
and nothing for Dr. Gilbert M. Barrett. 

The right to amend a pleading rests within the discretion of the 
Board, and should be permitted whenever the purposes of the act 
would be forwarded by so doing. In this matter the Board granted the 
right to file the amended application, although, in view of its findings 
and award, the matters set up in the amended application offered are 
immaterial. 

(1) At the hearing, the defendant consented to the amendment of 
the original application by fixing the correct date of the accident. 

(2) Under a claim for a major injury a minor injury can be proved. 

(3) The Board has determined that applicant is not entitled to any 
award for expenses incurred by him for medicaland surgical treatment. 

For the reasons stated, we are of the opinion that applicant should 
be awarded the compensation fixed, and should be denied an award for 
the expenses incurred by him for medical and surgical treatment. 

A. J. PlLLSBUBT. 

WiLi> J. French. 
Willis I. Morrison. 



D.gitizecbyG00glc 



4* EMPLOYERS' LIABILITY ACT DECISIONS. 

{No. 6— August 20, 1912.) 

(Chapter 399, Laws I9I1.) 

ANTON MACK, AppUca,,!. vs. P.>iCIFIC TELEPHONE AM) TELKGBAPH 
COMPANY (A COBWIBATION ) , Drfcndanl. 

Physical Ex a mi. ratios— Refusal to Submit. — The rpfusal of the ipjured em- 
ployee to submit to a physical eKHDimalion, aftei order by tlic Board, bars his 
right to conii>eD»iatioD during the period of such refusal. This penalty should be 
strictly enforced. What constitutes a refusal is a questiou of fact to be deter- 
mined by the Board. 

i:)iHAiiiLiTy — CoNTBincTmo Causes — .Vcciuentai, I.njuhy and Ili.mcsh. — AVherc 
the accidental injury causes "disability," the injured employee is entitled to com- 
I)ensation, even though the disability is made more serious by reason of illness 
or other contributing cause. 

Compensation — Limitation of. — The compensation awarUod is lo be meaRured l)y 
the disability directly traceable to the accJdent, and when Bueh disability ceases 
tiie compensation terminates, though the injured person may be still disabled by 
illness or some other cause wholly unrelated to the accident. 

AppIicHtion for fomjiensation for personal injury. The facts are 
stated in the opinion of the Board. The applieant was awarded full 
compensation durinjr peri<id of total disability and partial compriDBation 
during period of partial disability, pxciudin(i, however, the period dur- 
ing which he failed to submit to niedieal examination after order by the 
Board, 

Anton Mack, in propria pirsona, for Applicant. 
Moil & Dillon, attorneys, for Defendant. 

On the thirteenth day of February, 1912, the applicant, Anton Mack, 
a laborer employed by the defendant, Pacific Telephone and Telegraph 
Company, a corporation, at San Diego, was instrueted by defendant to 
assist in loading pipes on a wapon and to ride on this wagon to the 
place where these pipes were to be delivered, there to help unload the 
same. These pipes each weighed about 80 pounds. While he was 
riding on this wagon the wheels ran into a ditch and applicant was 
thrown to the ground. Some of the pipes were also thrown from the 
wagon and. in falling, struck ap]>licant on and about the head and 
.shoulders, knocking out two t^ his teeth and injuring his right shoulder. 

Despite his injuries, applicant continued to do such light work as 
was assigned to him until the nineteenth day of the month, when he 
reported that he was unable to continue at work. He was then in- 
structed to lay off work and was sent by defendant to its phreieian for 
treatment. Fnim that time until the thirty-first day of March, 1912, 
applicant was totally di.salilcd and unable to do any work. 

Although he iiad not fully recovered fnim the effects of his injuries 
he was given light work l)y defendant in its storeroom on the first da.v 
of April, 1!)12. and during tlie time he was so emplo.ved defendant paid 
him his full wages, to wit, the .sum of $2.m per day. When defendant 



employers' liability act decisions. 45 

completed the work in wliich it was then engaged, it closed this store- 
room, so that applicant was thrown out of employment on the first day 
of May, 1912, When applicant found that he could not obtain suitable 
employment in San Diego he cam(> to Los Angeles, where he now lives. 

Defendant admitted its liability for compensation for the period 
of two weelts and, while applicant was' still in San Diego, uncon- 
ditionally tendered to him the sum of $15.60 as compensation for thi.s 
period. The applicant is a foreigner and does not understand English, 
and refused to accept this amount in the belief that if he did accept 
it he would he denied any further relief. 

Defendant claimed that the disability resulting from the accident 
terminate*.! at the end of throe weelts after applicant laid off work and 
that any disability thereafter was caused by illness or disease in nowi,se 
induced or aggravated by the accident. 

At the time of the hearing herein, to wit, the ninth day of July, 1912, 
it was apparent that applicant was in a serious condition. The Board 
was unable to determine upon the evidence before it whether or not 
.such condition was due to the accident or to some cause unrelated to it. 
To a&sist the Board in determining this question, the Board duly made 
and entered its order appointing Elliott Alden, a duly licensed and 
practicing physician in said city of Los Angeles, as medical examiner, 
and ordered and instructed thi" said applicant to p'resent himself at 
the office of said examiner for a physical examination on the tenth 
day of July, 1912. Applicant did not present himself for examination 
as ordered until tlie eight day of August, 1912. It appears that the 
applicant did not fully understand the nature of these proceedings 
or the jurisdiction of this Board, but it is equally clear that he did 
understand that he was instructed to present himself for an examina- 
tion, and that he did not do so for the reason that he believed the 
examination was to !«• made by the physician of defendant and that 
he did not think it would avail him anything. We do not consider that 
the reason advanced excuses applicant's failure to report. 

After making the examination on the 8th day of August, 1912, Dr. 
Alden reported that the condition of applicant's shoulder was one of 
partial fibrous anchylosis, such as might follow the injury sustained by 
applicant on the 12th day of February, 1912, and that this condition 
would alone prevent applicant from performing ordinary manual labor; 
that in addition thereto applicant was suffering from a .serious abdom- 
inal disea.se in nowise to be connected with the accidental injury and 
not caused or aggravated thereby, and that this disease would alone 
prevent applicant from performing ordiiuiry manual labor, even if 
applicant had entirely recnvcre<l from the effect of said injuries. 

This case furni.'ibcs an exi-elleut illu.stratiiin of the nei'cssity of the 
provisions in the act relative to the examination of the applicant for 

Google 



46 employers' liability act decisions. 

compensation by a duly qualified physician. Without such examination 
it would be impossible to diagnose the cause of applicant 'e present con- 
dition. 

The right to require aueh examination and the penalty fixed for a 
failure on the part of the injured person to submit to the examination 
upon request are clearly set forth in section 11 of the act, which reads 
as followa : 

"Wherever in case of injury the right to compensation under 
this act would exist in favor of any employee, he shall, upon the 
written rajuest of his employer, submit from time to time to exam- 
ination by a regular practicing physieian. who shall be provided 
and paid for by the employer, and shall likewise submit to exam- 
ination from time to time by any regular physician selected by said 
Industrial Accident Board, or any member or examiner thereof. 
The employee shall be entitled to have a physician provided and 
paid for by himself pr&sent at any such examination. So long as 
the employee, after such written request of the employer, shall 
refuse to submit to such examination, or shall in any way obstruct 
the same, his right to begin or maintain any proceeding for the 
collection of compensation shall be suspended, and if he shall 
refuse to submit to such examination after direction by the Board, 
or any member or examiner thereof, or shall in any way obstruct 
the same, his right to the weekly indemnity which shall accrue and 
become pay:^le during the period of such refusal or obstruction 
shall be barred. Any physician who shall make or be present at 
any such examination may be required to testify as to the results 
thereof, ' ' 

It will he noted that the employer has the right to have the injured 
workman examined by his own physician and that the examination is 
not confined to the physieian appoiptcd by the Board for that purpose. 
Therefore, the fact that the applicant herein did not understand that 
the examintion was to be before an examiner appointed by the Board 
is immaterial, and under this section ho is not entitled to any com- 
pensation from the tenth day of July, 1912, to the eighth day of 
August, 1912. The Board feels that the provisions of this section should 
be strictly enforced regardless of the hardship that it might work in 
any particular case. It is to the interest of the emploj-er to know at 
all times the condition of the injured workman and to see that he is 
furnished the verj- best obtainable medical and surgical care, thereby 
minimizing the effects of the injury and securing an early recovery. 
It is probable that if applicant's shoulder had been properly treated it 
would not now be in the condition in which it is. 

What constitutes a refusal to submit to examination is a question 
of fact to be determined by the trial court. (Dei-itt et al. vs. The 
Owners, etc., II Butterworth's Workmen's Compensation Cases (Eng- 
land), 383; Warbij vs. Flaistower <& Company, IV ib. 67; Morgan va. 
i>i>wi, IV ib. 363, affirmed by House of Lords, V ib. 184.) 

Goo'^lc 



EMPLOTEBS' LIABILITY ACT DECISIOSS. 47 

III the Devitl case (stipra) the refusal to submit to the examination 
except in the presence of the workman's own physician was held not 
to be a refusal. In the Morgan case (supra) the condition was held 
to be a refusal. So in the Warby case (svpra) the refusal to be 
examined except in the presence of the applicant's solicitor was held 
to constitute a refusal. 

Accepting the report of the medical examiner as a correct diagnosis 
of applicant's present condition, and finding that his present condition 
is the result of two separate and distinct causes, namely, the injury 
to the shoulder and the abdominal disease, either of which would pre- 
vent him from performing ordinary manual labor, the question arises 
as to whether or not applicant is entitled to any compensation and if 
he is entitled to compensation, the amount thereof. 

The compensation recoverable by an injured workman and the method 
by which it is to be determined are fixed by the act as follows: 

"Section 8. Where liability for compensation under this act 
exists the same shall be as provided in the following schedule: 

(1) Such medical and surgical treatment, etc. 

(2) If the accident causes disability, an indemnity which shall 
lie 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; • • •, 

(6) If the accident causes partial disability, sixty-five per cent 
of the weekly loss in wages during the period of such partial 
disability. 

(e) If the disability caused by the accident is at times total 
and at times partial, the weekly indemnity during tlie periods of 
each such total or partial disability shall be in accordance with 
said subsections (a) and (6), respectively. " • • 

Section 9. {!) The weekly earning referred to in section (8) 
shall be one fifty-second of the average earnings of the employee; 
average annual earnings shall not be taken at less than $333.33, nor 
more than $1,666.66, and between said limits shall be arrived at 
as follows ; • • " 

{<!) The fact that an employee has suffered a previous disability, 
or received compensation therefor, shall not preclude him from 
compensation for a later injury, or for death resulting therefrom, 
but in determining compensation for the later injury, or death 
resulting therefrom, his average annual earnings shall be such sum 
as will reasonably represent his annual earning capacity at the 
time of the later injury, and shall be arrived at according to the 
previous provisions of this section. 

(2) The weekly lo«s in wages referred to in section 8 shall con- 
sist of the difference between the average weekly earnings of the 
injured employee, computed according to the amount which the 



D.gitizecbyG00glc 



48 BMPLOYEBS liahilitt act decisions. 

injured employee, in the exercise of reasonable diligence, will 
probably be able to earn, the sjune to l>e fixed as of the time of 
the aeeident, but to be determined in view of the nature and extent ' 
of the injury." 

Under this section, if the accidental injury causes "disability," either 
total or partial, the injured workman is entitled to the compensation 
fixed by the act, measured by the loss iu earning capacity, "to be fixed 
as of the time of the accident, but to be determined in view of the nature 
and extent of the injury." When this right to compensation accrues, 
the injured workman can not be deprived of it. no matter what other 
eonditionfl may be superimposed, and even though such conditions arise 
from an independent cause and would bave produced complete dis- 
ability irrespective of the accident. The determining factor in each 
ease must be the "disability" actually arising out of and caused by 
the accident. 

It must be recognized that in cases of this sort it will be extremely 
difficult to fix the relative extent of the two contributory causes of total 
disability, namely, illness and injure', but this difficulty does not in any 
way interfere with the underlying prini-iple. and the amount of com- 
pensation awarded mu^t be determined by the facts presented in each 
particular case. In this case the Board found that the "disability" 
actually arising out of and causetl by the accident was the "partial 
Hbroua anchylosis" of applicant's right -shoulder, and further found 
that this disability, irrespective of any other disability not related to the 
accident, would decrease applicjiut's present earning capacity one half, 
and allowed him compensation accordingly. 

The English Workmen's Compensation Act, 1906, contains provisions 
substantially the same as the provisions contained in section 8 of our 
act. except that where our act uses the word "disability" the English 
act uses the phrase "ineapacit.v for work." The English courts have 
held that the arbitrator must exercise his discretion in each particular 
case and cannot lay down any general rule as to the limits within which 
compensation will be awarded. (Wcbstrr vs. SImrpc <fc Co., (1904) 
I. K. B. 218. affinned in 11, L.. (IHO;")) A. C. 284; 7 W. C. C. 118.) 
And that evidence of the amount that can be earned at light work does 
not seem nei'cs.sary. but that the arbitrator must make the best estimate 
he can for the purpose of deciding the amount of compensation. (Car- 
diff Corporation vs. Hall, (1911) I, K. B. 1909; 4 B. W. C. C. 159; 
Carlii, vs. A. Slephni d: Sons. Ltd., (1911), 48 S. L. R. 862.) 

Where there was partial permanent incapacity and the workman had 
to give up the work to which he had returned owing to disease of the 
heart, unconnei-ted with the injur*', it was held that the employers were 
not entitled to a termination of the compensation, unless they proved 



D.gitizecbyG00glc 



EMPLOYEBS' lIABILrTT ACT DECISIONS. 49 

that there was no ineapaeitj' from the accident (Cory Bros. & Co., Lid., 
vs. nugkes (1911), 2 K. B. 738; 4 B. W. C. C. 291.) See, also, Ward vs. 
London, etc., 3 W. C. C. 192. 

It hardly seems necessary to state that aay compensation awarded 
to the applicant is only intended to cover such part of his loss of 
earnings as is directly traceable to the accident, and that when he 
recovers from the effect of this injury the compensation awarded to 
him ceases even though he may be totally disabled by illness or other- 
wise. As we have already pointed out, the defendant has the right at 
any time to require the applicant to submit himself for a medical exam- 
ination, and in this manner should be able to determine just when the 
disability caused by the accident ceases. 

For the reasons above stated, we are of the opinion that the applicant 
should be awarded the compensation fixed, but that he is not entitled to 
collect any compensation for the period during which he failed to sub- 
mit himself for a medical examination as required by order of ttie 
Board. 

A. J. Pn,LSBURY. 

Wi!,i. J, FRENcrr. 

WiM.lH I. MOKRI.SON. 



(No. 7— October 22, 1912.) 

(Chapter 399, LawB 1911.) 

IRENE STEVENS, Applicant, vs. PACIFIC TELEmONE AND TELEfSRAPII 

COMPANY (a coBPOBATiON), Defciidaiil. 



Medical Carb ahd Attentio."!— IjIability fob and IjIuitatid.n !.•« TiME.^Thp 
ninety-day period diiting which tbe employer is required to funiish medical and 
Bursic'al treatmenl, etc., under section 8 (1) of the act, starts from tlie time of 
disability, and, if reijuired, must be furnisbed for not to exceed ninety days 
during disahility, regardless of the time of the injury. (Willis I. Morrison, in a 
dissenting opinion, holds that such liability accrues at the time of the injury 
and ceases ninety days thereafter.) 
Application to retfover rompensation for medical care and attention 
furnished more than ninety days after the accident. The facts are 
stated in the opinion of the Board. Applicant was awarded medical 
expenses incurred during the first ninety days' disability. 
Irene Stevens, in propria persona, for Applicant, 
B. C. Carroll and 11. C. Flumhig, for Defendant. 
The only question presented to this Board for determination is 
whether the defendant is respon.sible to applicant for medical eare and 
attention rendered within ninety days from the date of the accident, or 
within ninety days from the Wginning of the disability resulting from 
the accident. 

4— llKtn /--> I 

D.gitizecbyt^OOglC 



50 EMPI,OYERS' LIABILITY ACT DECISIONS. 

The issue is presented in the interpretation of subdivision 1 of sec- 
tion 8 of the Employers' Liability A<;t, which states: 

"Such medical and snrpifal treatment, medicines, medical and 
sui^ical supplies, crutches and apparatus, as may be reasonably 
required at the time of the injury and thereafter during the dis- 
ability, 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 incnrred by or on behalf of 
the employee in providing the same; provided, however, that the 
total liability under this subdivision shall not exceed the sum of 
$100.00." 

The employer is required to furnish medieal attention "at the time 
of the injury and thereafter during the disability, but not exceeding 
ninety days." 

The Employers' Liability Act, in the second paragraph of section 8, 
ch'Jirly lays down the principle that compensation shall be payable 
"after the injured employee leaves work as the result of the injury." 
Nowhere is it stated that any other basis than loss of earning power 
.shall be e.stimated. In new legislation of this kind it is reasonable to 
interpret the aims and objects sought to be attained in a broad spirit. 
In this connection, the provision dealing with medical and surgical 
treatment should be considered in its relation to the intent and scope of 
the. law. 

Irene Stevens was injured on or about the 26th day of November, 
1911. She was struck in the eye by a plug while in the performance of 
her duties as a telephone operator. She felt no ill effects of a serious 
nature from the blow for some weeks, and naturally thought that recov- 
ery would follow without bad results. There was no effort to conceal 
the injur;'; in fact, the evidence shows that the young woman was 
anxious to continue in her employment and avoid any inconvenience for 
her associate who was responsible for the accident. 

After five or six weeks tlie developments wore such that she was 
(jbliged to discontinue employment and seek medical relief. The Pacific 
Telephone and Telegraph Company was informed of the accident and 
the condition of Miss Stevens, and has followed the case from that time 
with a full knowledge of the medical attention given by the doctor for 
the applicant. 

The only point in controversy is whether the ninety days' medical 
care, under tl(« law. shall be counted from the date of injur;-, Novem- 
ber 26, 1911, or from January 3, 1!)12, the date of the lieginning of the 
disability. The law say-s that the treatment must be furnished by the 
employer, "at the time of the injury," but if no treatment was necessary 
at the time of the injury and the injuiy appeared to be of a trivial 
character, there is no apparent reason why the ninety-day period dur- 



employers' liability act decisions. 51 

iiig whifh medical* treatment is to be provided at the expense of the 
employer should date from the time of sueh injury. The law does not 
say that the treatment shall be supplied for ninety dajs from the time 
of the aeeident. It does say, however, that it shall be furnished "at 
the time of the injury and thereafter during the disability, but not 
exceeding ninety days." If, after the words "ninety days" there 
followed the words "from the time of the injurj'," there would 
then he no doubt as to the letter of the law. There is no limita- 
tion, however, in this ccmnection. The provision is that the medical 
attention shall be funiished not to exceed ninety days during disability. 

Disability is stated by Webster to mean "lack of physical, intel- 
lectual, or social fitness." The evidence in this case clearl.v proves 
that there was no lack in any of these respects, and that Miss Stevens 
was competent to do her work, and did do her work, from the time she 
met with what was at first thought to be a minor injury, until the 
developments caused her to leave her employment. Consequently, we 
find no disability from November 26, litll, to January 5, 1912. 

The Industrial Accident Board decides that the ninety days 
should be counted from the beginning (vf the period of disability. The 
employer, where he has obligated himself to pay not to exceed the 
sum of one hundred ($100.00) dollars for me<lical treatment, is not 
placed at any disadvantage, and the purpose of the law is clear. 
Medical and surgical treatment may fairly be considered from the time 
when the need for it became apparent. If a trivial hurt is reported, 
surely it is a reasonable view of the law that if, five weeks later, there 
is a change for the worse, the period of medical and surgical treatment 
would start from the time when medical attention was necessary, and 
the ninety days be counted from the time of the first treatment. 

Failure of applicant to give the re<iuired notice of injury was 
specifically waived by defendant at the hearing and can not become 
an issue in this case. 

For the rea.sons herein given, we are of the opinion that the applicant 
should receive the balance expended for medical and surgical treatment 
and sup])lics during the period of disability from January 5, ]!)12, but 
for not exceeding ninety days from that date. 

"Will J. Frencu. 

A. J. Pn,LSBIIRY, 

A. J. I'n.i.sBiiKV, Coiiiniisifioiu'r, concurring: 

I concur with my associate, W. J. French, in the above opinion and 
award for the reasons following: 

1. The only iHiint at issue, as stipulated by the parties to the pro- 
ceeding (transcript of testimony, page 2. lines IS to 20, inclusive), "is 
as to whether the said defendant is rcspcmsible to said applicant for 



Goo^^lc 



52 EMPLOTEBS' LIABILITY ACT DECISIONS. 

medical oare and attention rendered to said applicant subsequent to 
ninety days after the date of said accident; that is to say, the only 
question presented is as to the interpretation of subdivision 1 of sec- 
tion 8 of tlie said act." 

Had the issue an to the sufficiency of the notice of injury been placed 
in issne by the defendant corporation, and not very generously waived, 
my decision might have been very different. It will be time enough to 
determine the requirements as to such notice, as to whether or not every 
seemingly trivial scratch and bump must be reported instanter in order 
to preserve the rights of the injured persons to medical treatment, when 
a case arises specifically involving that issue. 

2. If it be true that there was no evidence taken at the hearing to 
show that disability requiring medical treatment did not exist prior to 
the date agreed upon as the beginning of total disability, that lack of 
evidence does not debar the Board from fixing the date of disability in 
accordance with the stipulation entered into at and immediately prior 
to the formal hearing, which date, the 5th of January, the parties to 
the proceeding and the Board have accepted as conclusive an that point. 

3. Waiving for this instance the right of a member of the Board, 
not present at a hearing, to join in findings of faet as established by 
testimony taken at a hearing, it .seems evident to my mind that that 
objection can not extend to taking cognizance of facts established by 
stipulation at or immediately prior to such liearing, and one such fact 
was that, whatever might have been the fact prior to that date, there 
was disability on and after January- 5, 1912. That stipulated fact is, 
in my judgment, alone sufficient to warrant the findings of fact in 
which I join my associate, W. J. French. 

4. My associate, Mr. llorrison's dissent fn>m the findings of faet, 
filed therewith and appended thereto, does not in my judgment, raise 
an issne of fact but a conclusion of law and is not, therefore, a dissent 
from the findings of fact or germane fo the issue of fact. 

A. J. PiLLSBURY. 

Willis I. Morrison, Commissioner, dissenting: 

I dissent from the conclusion of the majority of the Board in award- 
ing to the applicant any part of the amount expended by her for 
medical or surgical treatment, etc., after the expiration of ninety days 
from the date of the accident. 

Apart from consideration of public policy, "Compensation" is 
founded upon the economic theory that each industry should bear the 
entire cost cif all the various items, entering into its product, and that 
the cost of industrial accidents causing persojial injury to employees is 
just as proper a charge against production as similar accidents to 
machinery. Theoretically, then, an injured workman should be entitled 
to he reimbursed for all loss so sustained, including any an^ount 

CnOO^IC 



employers' liability act decisions. 53 

expended by him for medical or sut^cal treatment, regardless of limita- 
tion in amount or time. 

It is admitted that a law carrjing into effect the compensation prin- 
ciple, without any limitation, would not be workable under present 
industrial and social conditions. Therefore, our legislature, in the 
exercise of its discretion, has imposed such limitations on the right of 
the injured workman to compensation, as seemed necessary in order to 
make a workable law and to induce employers to elect to nperate 
under it. 

The right of an injured workman to medical and surgical treatment, 
etc., is established under section 8 — 1 of our act as follows : 

"Such medical and surgical treatment, medicines, medical and 
- surgical supplies, crutches and apparatus, as may be reasonably 
required at the time of the injury and thereafter during the dis- 
ability, 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 employee in providing the same; provided, how- 
ever, that the total liability under this subdivision shall not exceed 
the sum of $100.00." 

While I am of the opinion that a compensation act should include 
full medical and surgical treatment, our act plainly limits this right, 
and therefore, even though I may not agree with the wisdom of so 
doing, I feel compelled to give the limitation its full force and effect, 
without attemjiting through "judicial construction" to extend this 
limitation, and the liability of the employer, to meet my particular 
views and include the case now presented. I£ any defect exists in the 
law, it is for the legislature to correct. 

In my judgment, under the foregoing sections, the employer is liable 
only for "such medical and surgical treatment, etc., as may bo reason- 
ably required at the time of the injury and thereafter — but not exceed- 
ing ninety days — " subject, of course, to the limitation that there is 
no liability except during the disability. 

The right to medical and surgical treatment, etc., accrues immediately 
upon the happening of the injury, and the liability of the employer 
ceases ninety days thereafter. 

The eoncliLsion which I have reached is based upon what I believe 
to be the meaning of the words used in the si-ction under consideration, 
without refen>TK-e to the purposes intended to be accomplished through 
the ninety-day liijiitatioii. A rdn-sidcratinn of the purposes for such 
limitations and an ccaniination of similar provi.sions contained in other 
compensation acts inusi ncrcssarily .strcuirllien the view above expressed. 

The provLsioTis for medical and surgical treatment contained in other 
compensation acts date from the time of the accident: Massachusetts 

Ic 



5-1 EMPLOYERS I.IABILITV ACT DECISION'S. 

Laws, 1911, Cbap. 751, Part II, seeti(«i 5 (first two weeks). Miehigan 
Laws, 1912, Part II, section 4 (first three weeks). New Jersey Laws, 
1311, Chap 95 sectioD II 14 (first two weeks), Rhotle Island Laws, 
1912, Art II section 5 (first two weeks) 

It is the intention of all acts to make the time fixed and definite, 
thereby eliminatinft the possibilit\ of disputes and to enable the 
emplo.ver to determine the cost to him This is done if the liability dates 
from the aceident Under aiij other lonstnu'tion of this section it 
would be almost impossible to detennine when the employer had dis- 
charged his obligation. For if it be held that the liability exists for 
uinety days after the eomnieneenient of disability, and that the employer 
must furnish medical and surffieal treatment, etc., during the ninety 
(lays of disability, disputes would continually arise as to when the 
disability commenced and how long it continued, especially so if the 
periods of disability were intermittent. The emplo^'er would not be iu 
a position to say. with certainty, until the expiration of fifteen years 
from the date of the accident, that he had discharged his obligations 
unless he furnished the treatment during the ninety days of disability, 
or expended the amount limited by the section. 

"During the. disabiliiy." Apparently the majority of the Board 
seem to be of the opinion that the word "disability" a-s used in the fore- 
jroing section should include only "s(^rious disability," or disability 
which entitled the injured person to money compensation, i. e., dis- 
ability followed by loss of earning capacity, and state in this par- 
ticular ease, that although the accident occurred on November 26, 1911, 
applicant "felt no ill effects of a serious nature from the blow for 
some weeks, and naturally thought that recovery would follow without 
bad results." 

In view of my conclusion relative to the ninety-day limitation, it is 
not necessary in this matter to pass upon the meaning of the phrase 
"during the disability," still, in view of the opinion expressed by the 
majority of the Board it seems advisable to now express my views. 

In my opinion, any injury sufficiently grave to reasonably require 
medical or surgical care is a disability within the meaning of this sec- 
tion, even though the disability is not sufficiently serious to cause the 
injured person to discontinue work or diminish the earning capacity. 

It is the plain duty of the employee under compensation to imme- 
diately report an injury to his employer, and as this Board said in 
Christ)! vs. Htaiulard Oil Cumimny. "except in cases of emergency, the 
emplo.ver cannot he charged for medical and surgical expenses incurred 
by the applicant, unless he has notice of the injury and thereafter 
neglects or refuses to funiish the required treatment." 

As this Board has said, one of the reasons that the employer is 
required to furnish the medical and surgical care, is because he "is 

_;oogic 



EMPIX)YEHS' LIAHIMTT ACT DECISIONS. 55 

perhaps more competent to judge the efficiency of the doctor, and to 
provide proper medical and surgical treatment than the injured man," 
and "it is to the interest of the employer to furnish the very best 
medical and surgical care to minimize the result of the injury and to 
secure an early recovery." (Pamphlet on Compensation Law issued by 
Board, page 33.) 

The opinion of the majority of the Board in this case is apparently 
contrary to the views above expressed, fey apparently, under their 
opinion, the employee has the right to determine when the disability 
is liable to become serious, and is under no obligation to report the 
injury to the employer until such time. Under ordinary circumstances 
the employer will have no knowledge of the happening of the accident 
until it is reported by the employee, and therefore, will be unable to 
adopt precautionary measures. 

While there was perhaps no effort to conceal this injury, as a matter 
of fact, it was not reported until shortly before the applicant discon- 
tinued work, when it became serious. If this accident had been 
immediately reported and proper medical care given to the injured eye, 
it is probable that the condition would not have become serious. 

Applicant testified that one of the reasons why she did not report her 
injury immediately was because the accident was caused through the 
disobedience of orders bj' her assoeiate. who would be reprimanded, and 
perhaps discharged, if the fact were brought to the attention of her 
employer. The order disobeyed was an order directetl towards the pre- 
vention of just this sort of an accident, was reasonable and should be 
enforced, and therefore, in justice to the employer, applicant should 
have reported her injury immediately, or, failing to do so, cannot expect 
to add to her employer's ohlination the additional burden caused by 
her own failure to report. 

Assuming that I agreed with the majority of the Board in its con- 
struction of the section under consideration, I should still feel obliged 
to dissent from the award upon the ground that the award was not 
justified by the evidence introduced. 

The applicant is awarded "the amount due for medical and surgical 
treatment during the period of ninety days from the beginning of dis- 
ability." Neither the findings of fact nor the award show when the 
diaabilitj' actually commenced, although it does appear from the find- 
ings and was admitted by defendant, that the applicant was totally 
disabled from the 5th day of January, 1912. 

The date of the beginning of the disability is a que.stion of fact to 
be determined by the Board from the evidence submitted. In my opin- 
ion, the evidence submitted would nut jii.slify the Board in finding that 
the applicant was not disabled in any particular, prior to the date of 



:,Goo'^lc 



o6 EMPLOYERS' LrABILITT ACT DECISIONS. 

total disability, or )d tiadiog that her condition was such as not to 
require medical care and attention prior to that date. 

In view of the fact that there were only two members of the Board 
present at the hearing herein, and that there is a difference of opinion 
(ionceming the matter under consideration, I do not see how it is possible 
for the Board to make any award at this time. For, even if it be 
assumed that the majority of the Board is right in its construction of 
this section, and that the liability for medical and surgical treatment, 
etc., datei from the beginning of the disability, there still remains a 
question of fact to be determined, namely, the date of the commence- 
ment of the disability, and this question of fact can only be determined 
by such members of the Board as were present at the hearing. 

Wnj-is I. Morrison. 

NOTH. — On Novembpr 20, I»12, rtefendent flted. In the Superior Court In and (or 
Ihe cLty Hnd county or Ran F'ranoLiico, an appUciitton for the review of the award 
— J. ,,.. ...^ — J ThiB nppllcatloii wna BUbsequently dLamlHaed at the request Of 



(No. 11— October 22, 1912.) 

(Chapter 399, Laws 1911.) 

JOHN NKllLU Applicant, va. BOARD OF SUPERVISORS OB' THR COUNTY 

OF 8ANTA CLARA, Defendant. 

The applicant received an injury to his hand while working on a pile 
driver. Blood poisoning supervened with a 8eri(ms resulting disability. 
He was an employee of the defendant county, which liad not elected 
compensation as provided by chapter 399 of the Laws of 1911, The 
injury occurred on October 27, 1911. The application was filed 
October 22, 1912. The application was retained without hearing by 
the Industrial Accident Board pending the decision in the case of 
Fred MUler vs. A. J. Pillxhiry, cl al., by the Supreme Court of the 
State of California, which was decided November 20, 1912, and is 
reported in 164 Cal„ 199. It was there held by the Supreme Court 
that the state was not subject to the compensation provisions of the law 
without its election to become subject thereto. As that decision was 
determinative of the question of jurisdiction in this case, the application 
herein was dismissed for want of jurisdiction, 

Aaron L, Sapiro, 
Secretary. 



D.gitizecbyG00glc 



EHPL0TEB8 LIABILITY ACT DECISIONS, 57 

(No. 13— November 18, 1912.) 

(Chapter 199. Laws 1911.) 

MATTHEW HANNON. Applicant, tb. BOAKD OF EDUCATION, CITY AND 

COUNTY OP SAN FRANCISCO, Defendant. 

The applicant suffered aa accidental injury resulting in the frac- 
■ ture of both ankles and a sprained wrist. He was a carpenter in the 
employ of the defendant, which had not elected compensation, as pro- 
vided by chapter 399 of the Laws of 1911. The injury occurred on 
December 1, 1911. The application vrm tiled November 18, 1912. The 
application was retained without hearing by the Industrial Accident 
Board pending the decision in the case of Fred Miller vs. A. J. Pills- 
bury, et al., by the Supreme Court of the State of California, which 
was decided November 20, 1912. and is reported in 164 Cal., 199. It 
was there held by the Supreme Court that the .state was not subject to 
the compensation provisions of the law without its election to become 
subject thereto. As that decision was detcnninative of the question of 
jurisdiction in this case, the application was dismis.scd for want of 
jurisdiction. 

Aaron L. Sapiro, 
Secretary. 



{Kn. 9— Dccemlicr f., liH2.) 

(Chapter SSS, Laws 1911.) 

ANNIE ItALLINS, Applicant, vs. GREAT WESTERN I'OWKIt (^OMrANY <a 
cobpobation). Dcfcngant. 

Dbpenuenct— Question of Fact. — Except as otherwise providiJ by tlic ncl, 
dependency ia a question of fact, to lie detertuitied by the Bonrd. Wlipri' 
deceased made contributions to his sister for her support, and the money so ron- 
tribDted was actually used, aud was necessary therefor, Ihe sister ia a deiiendent 
ot deceased. 

Partiai. Dbpendent — Obi,igatio:« or Anotileb to Support Dbpkndknt I'ebhon. 
— It. as a matter of tact, n sister is doi^ndi'iit for support ii|)on her ihccnsml 
brother, sbe is entitled to compensation for his dcatti, even thoutcli she may be 
living with her husband, and regardless of the fact that by Inw Ihe husband is 
chatKcd with her support. 

Compensation for Death^Auount of. — A person partially ilcpendeut uihiij 
deceased is entitled to such percentage of three times the avfTnee annual I'nru- 
ings of deceased as the annual amount devoted by deceased to the support of 
such person bears to such average earnings. 

Application for compensation for death. The facts arc -stated in the 
opinion of the Board. The applicant, the sister of deceased, was 
awarded the sum of $360 as a partial dependent. 
E. J. Dole, attorney, for Applicant. 
W. H. Sjtauldinff, attorney, for Defendant. 
On the 5th da.v of July, 1912. one Henry Ilulseiicrg. a common 
laborer, was killed by accident while in the course of his employment in 



a8 EMPLOYERS' LIABILITY ACT DECISIONS. 

the service of the Great Western Power Company, defendant herein, a 
portable derrick falling over upon him, his death being praetieally 
instantaneous. At the time of such aeeident both the employing corpo- 
ration and its employee, Henry Hnlseberg, were under the compensation 
provisions of chapter 399 of the Laws of 1911, of California, commonly 
known as the Employers' Liability Act. 

Said Henry Hulseberg was, at the time of hb death. 24 years old and 
unmarried, and there was no one solely and wholly dependent upon him 
for support. 

Annie Railins, the applicant herein, was sister to Henry Hulseberg, 
and, with the exception of her two small children and an uncle living in 
San Francisco, the only near relative of Henry Hnlseberg, deceased. 

All the testimony on the issue, even that of witness Jesse Bowles 
called by the defendant, was to the effect that Hnlseberg had at divers 
Jind sundry times over a period of three or four years been known by 
them to pay his sister money. These payments had been three or four 
dollars at a time. The only direct testimony as to how much these 
contributions amounted to was that of the applicant, Annie RaUins, 
herself, who testified that the payments amounted to ten or fifteen 
dollars per month, generally fifteen; but she confessed that she kept 
no accounts and, in view of the earning capacity of Hulseberg, this 
Board concludes that the applicant has overestimated the amount she 
received and that such contributions cannot have exceeded the average 
sum of ten dollars per month the year around. All the testimony like- 
wise showed that Henry Ilukeberg was of good moral character and 
personal habits, very kind to the memlwrs of his family and, inasmuch 
as the applicant and her children were the only persons in the world 
rear and dear to him, it is reasonable to conclude that he did contribute 
to her and their support according to his means. 

The defendant corporation, in its answer, denied that Annie Railins, 
the applicant herein, was or could have been a dependent of said Hulse- 
berg, on the groiuid that siie was a married woman and was living with 
and supported by her husband. Joseph Railins. The Board found, 
however, from the testimony adduce<l, and (■omputations based thereon, 
that the earnings of the husband. Joseph Railins. were insufficient to 
maintain her family without the infliction of hardship, and that the 
contributions of applicant's brother, Hulseberg, were necessary for the 
support of herself and children. 

Subsection (3) of section 9 of tiie liability act defines as persons 
"solely and wholly dependent." excluding all others, "a wife upon a 
husband; a husband upon a wife upon whcwe earnings he is partially 
or wholly dependent at the time of her death ; a child or children under 
Ihe age of eighteen years (or over said age but physically or mentally 
iacapacitated from earuing) upon the parent with whom he or they are 



KMI'IXtYKlIS' IJAItlLITY A(;r DECISIONS. 5'J 

living at the time of the death of such parent, there being no surviving 
dependent parent." 

There were no such preftirred dependents of the said Henry Iliilse- 
l>er{r, deceased. The statute tlien poes on to say that, "In all other 
cases que.stions of the entire or partial dependency shall be determined 
in accordance with the fact, as the fact may be at the time of the death 
of the employee." There are no limitations upon such dependency 
as to consanguinity, as to whether the dependent be married or sint^le 
or as to tile confining of .support to the bare necessities of life. It is 
sufficient unto the law to show that there was dependency and that the 
contributions of decedent were devoteil to the support of such depend- 
ent, or partially dependent per.-ion. The facts in this oa.sc pn)ve that 
Annie Rallins, although married and living with her husband, was, 
and for three or four years had been, a partial dependent of the said 
Henry llulseberg, deceased. 

Defendant arpied that since under the law tlic obIigati(m rested upon 
the husband of applicant to support her, and since the husband was 
able-bodied and able to work, she cannot I)e said to lie dependent for 
support npDD any other person. This argument is answered by Lord 
Shaw in an appeal taken to the Iloase of Lords, England, involving 
the construction of a similar section nf the English Compensation Act, 
entitled Jlodgnoii vs. Owners West Stanley VnlUery Co., reported in 
3 B. M'. C. C. 260, from which we quote as follows: "It would seem 
difficult how a court of law would reach the conclusion that the wife 
must, contrary to that fact. l>e held to have been constructively wholly 
dependent upon her husband's earnings and constructively not depend- 
ent on her son's. Dependency is a question of fact." 

In MVelch, etc., vs. New York, New Haven and Hartford Railroad 
Company, 176 ^lass. 393, cited by aj^licant, the court said : 

"Although it does not clearly appear how far. if at all, the 
plaintiff was dependent upon her son for support, there was evi- 
dence that for a long time he had given her all his wages, and 
there was te.stimony from which the jurj- might have fonnd that 
she needed the money to obtain the ne<'cssaries of life, beyond that 
which her husband could furnish, and that she was dependent on 
this son for support within the meaning of the statute." 

The Board has found as a fact that applicant was partially dependent 
upon her deceased brother. 

For the reasons above .stated the Industrial Accident Board are 
unanimously of the opinion that the applicant. Annie Rallins, is entitled 
to the compensation stated in the award of said Board dniy filed in said 
above entitled cause. 

A. J, PiLLSBlRT. 

Will J. French. 
Willis I. JIqkbison, 



EMPLOYEES LIABILITY ACT DECISIONS. 

{No. 10— February 7, 1913.) 
(Chapter S99. Lans 1911.) 



CouPROUiSE AND RELEASE — REQUISITES — CONBTBUCTION. — ReleRses Will be strictly 
construed. In order to make a valid oompromiae there must l>e a meeCiUR of the 
minds of the parties as to the terms of agreement, and an understand iDK of their 
riicbts under the law. A release, to l>e valid, must be executed cither after the 
actual termination of the disability or as the result of a valid compromise of 
"a liability wbich la claimed to exist" as contemplated by section 28 of chapter 
399 of the Laws of 1911. 

Releases — Consioeratiod — Receipt. — An instrument, in form a general release. 
required by the employer to b« executed as a condition 'precedent to the payment 
to the employee of accrued compensation, prior to the actual termination of the 
disability, is without consideration and is held to be a mere receipt. 

Rra.EASB — Mistake of Fact — Goop Faitu of Bupix>veb. — A general release, token 
in good faith by the employer under the mistaken apprehension thut the dis- 
ability of the employee had terminated, which said release was not fully under- 
Btood by the employee, who was a foreigner and could neither read nor write the 
' English language, coveritig the amount of compensation accrued to the date at 
the release, it appearing that the injured employee waa not advised of his legal 
rights and was not claiming that any liability or further liability existed when 
the release was executed, is not a valid release or compromise under the pro- 
visions of section 28 of chapter 309 of the Laws of 1911. 

Application for eompensalion for injury to the controlling niusoles 
of the right eye. The facts are stated in the opinion. Applicant had 
been paid compensation in the sum of $2t(.20 in addition to the expense 
of hospital and medical attendance, amounting to $107.95. The 
employer took a release prior to the termination of disability. The 
release was held to be a rei-oipt and the applicant was awarded addi- 
tional compensation in the sum of $20.14. 
James Bacigalvpi, for Applicant. 
Chickering tfc Ortjfory, attorncjs, for Defendant. 

On the 2-lth day of August, 1912, one Rgistu Cianti, a laborer, was 
thrown from his .seat on a wagon hy the running away of his team and 
fell to the ground, whereby he sustained an injury to the controlling 
muscles of his right eye by reason of which he was totally disabled for 
the period of three weeks and partially disabled tJiereafter. At the 
time of the accident both Cianti and the employing corporation were 
under the compensation provisions of chapter 399 of the Laws of 1911. 
Shortly after the termination of his total disability Cianti was required 
to sign a release from all further liability a.s a condition precedent to 
receiving the sum of $28.20. due him for compensation for the three 
weeks of total disability, at the conclusion of which he had resumed 
work, although not entirely' re<-overed. The issue is upon the validity 
of such release so obtained. 



D.gitizecbyG00glc 



EMPI-OTEIts' LIABII.ITT AUT DECISIONS. 61 

It ia proper to state that the defendant corporation acted in good 
faith in securing applicant's signature to the alleged release. It 
assuDied that the returning of Cianti to work was conclusive as to 
the termination of the disability, and it exacted the release without 
intentional duress hut a^ an act of prudence followed in all similar 
cases. Its agents did all that they reasonably could do to enable 
applicant, Cianti, to understand the document he was asked to sign and 
supposed that, through hb friend, Ferrari, who undertook to interpret 
the document to him, he did understand it, but it developed in the 
evidence that Ferrari knew little or no more English than Cianti and 
that Cianti did not, in fa<'t, understand either the nature of the docu- 
ment he was asked to sign or his rights under the eompen.sation law. 

It is matter of common knowledge that, under the common-law sys- 
tem of dealing with industrial accidents, injured persons have been 
subjected to great hardship at the hands of unscrupulous adjusters 
through the exaction of relea=es under duress of fear, either of losing 
their positions or of having to tight powerful insuring companies in 
the courts in order to secure anything at all in the way of recompense 
for their injuries. Without reference to the case under consideration, 
if the same injurious policy can be made as applicable to claims for 
compensation without regard to negligence as it has been to claims for 
damages based on negligence, then it will he possible for unscrupulous 
adjusters to drive as hard bargains under compensation as under the 
former liability and thus, and to that extent, deprive the compensation 
act of it« purpose. For this reason it is incumbent upon the Industrial 
Accident Board to construe with strii-tne-s anything purporting to be 
a release of all claim for compensation l)enefits. Especially is such 
strictness of construction re<iuisitc in cases, such as the one here in con- 
troversy, where the release is obtained in advance of the termination of 
the disability. 

Section 28 of chapter 3!I9 «f the Laws of litll authorizes employers 
and their injured employees to "Compromise and settle upon such 
terms as they may agree upon, any liability which may be claimed to 
txist under this act on account of such injury or death," but at the 
time this release wa.s .signed and payment made there was no claim on 
the part of Cianti that any liability existed, and there was nothing to 
compromise. Compromise implies a giving and taking as between the 
parties relative to the amount in issue and in this transaction there was 
no element of compromise. The transaction was begun and closed 
under the mistaken idea that the disability had terminated and the 
payment of compensation was the final payment. Therefore such 
transaction can not be said to come under the purview of said section 28. 

Again, in order that such a compromise may be effective and binding 
upon the parties it is not only rc<iuisitc that the parties thereto have a 



62 EMPLOYERS' LIABILITY ACT DE0I8ION8. 

mutual iinderstamliiiK of the terms of the agreement, but also a reason- 
ably accurate knowledge of their respective rights and obligations under 
the law. While the defendant used diligence in having the applicant 
understand the contents and purport of the alleged release there is no 
evidence that any attempt was made to instruct the applicant in his 
legal rights under the compensation act. This point deser\'es emphasis 
because of the disadvantages to which men who have little or no knowl- 
edge of the English language are in such eases subjected. They can 
not "compromise and settle" a liability unless they know what liability 
exists in their favor. 

Cianti's right to compensation for the three weeks during which he 
had suffered total disability was absolute and unqualified. As a pre- 
requisite to its payment the defendant corporation had no right to 
impose any conditions other than such as were imposed in the payment 
of wages which, in the practice of the defendant corporation, did not 
even require the signing of a receipt, the name of the payee endorsed 
on the back of the check being the only receipt required. 

Therefore, the requirement of the defendant corporation that Cianti 
execute the alleged release as a condition precedent to his being paid 
the compensation benefits due him was eoercive in its effetrts upon him 
and thereby invalidated the release effect of the instrument and con- 
verted it into a mere receipt for the money due and payable without 
regard to what might become payable thereafter. It militates not at 
till against this conclusion, but rather for it, that the defendant corpo- 
ration did not intend to apply coercion to the applicant herein, that its 
agents regarded the disability as terminated and merely wished to close 
the account. 

In the opinion of the Industrial Accident Board a release of all right 
t(i n;ceive further compensation in relation to a given injury or death 
must, in order to be valid, be exeeuted cither after the disability has in 
fact delinilely terminated, or as the result of a compromise of, "A lia- 
bility which is clainKHl to exist," into which compromise the element of 
give and take enters in order that there may be something to eompro- 
mise. Kven then, the execution of such n*leaae must be unattended with 
any su.spiciou of fraud (ir coneealment, coercion or misrepresentation, 
and the person executing the nilease must do so in a full understanding 
of the nature and effect of the instrument he is signing to the end that 
there may l)e a complete union of the minds of the parties to the instni- 
ment upon the agreement reacheil. 

Ill the case in hand the instrument was executed by both parties under 
a misapprehension of the nature and extent of the injury, and the pro- 
curement of the signature of (.'ianti was at least unwittingly eoereive. 

For the reasons above staled the Industrial Accident Board are of 



DaitizecbyGoO'^lc 



EMPLOYEIt-S' LIAniLITY ACT DECISIONS. 63 

the opinion that the applicant, Egisto Cianti. is entitled to the further 
compensatioD stated in tlie award of. said board duly filed in said above 
entitled cause. 

A. J. PiLLSBURY, 

Wn.,L J. French, 

Members. 
Willis I. Morrison, Member, concurring; 
I concur in the findings and award of the Itoard. 
It appears that under date of September 23, 1912, applicant executed 
an instrument, which purported to be a full and complete release of any 
claim, present or future, which it might have a^inst the defendant to 
recover compensation for the accident which occurred on August 24, 
1912, and for which compensation is now sought to be recovered ; the 
['Imported release sets forth the considei-ation upon which it is based, 
viz, the pajTnent of medical and hospital bills amounting to one hun- 
dred and seven dollars and ninety-five cents ($107.95), and the sum of 
twenty-eight dollars and twenty cents ($28.20) as compensation. 

It seems to be conceded that if the instrument is a valid release, the 
applicant is estopped from now claiming any further compensation, but 
that if it is not operative as a release, he is entitled to compensation, 
for the period of his partial disability subsequent to the date of the 
instrument, incidentally the question arises as to the right of this Board 
to pass upon the validity of the instrument as a release since its execu- 
tion is not denied by the applicant, and when upon its face it purports 
to be a full release. 

Under the act creating this Board, it is given full jurisdiction over 
all disputes arising out of or incidental to compensation under the act. 
Therefore it follows that this Board is vested with the same powers and 
discretion that are commonly exercised by juries in the trial of damage 
suits, as well as with certain of the function of the court. 

The right of a jury to inquire into any purported release and to 
either enforce it according to its tenor or refuse to consider it as 
effectual for any purpose ia clearly recognized in this state. Thus in 
Smith vs. Occidentai, etc, Steamship Company, 99 Cal. 462, a release 
was pleaded, this release con.sidered by the jury and damage awardetl 
despite it. In discussiufr the effect of this release, the court said at 
page 470: 

"The general rule is that when a person with the capacity of 
reading and understanding an instrument signs it, he i.s, in the 
absence of fraud and imposition, bound by its contents, and is 
estopped from saying that its provisions are contrary to his inten- 
tions or understanding; but it is also a general rule that the assent 
of a party to a contract is neceasary in order that it be binding upon 
him, and that, if the circumstances of a transaction are such that 



64 EMPLOYERS LIABILITY ACT DECISIONS. 

lie is not estopped from setting up his want of assent, he can be 
relieved from the effect of his signature if it can be made to appear 
that he did not in reality assent to it, ' ' ' and the jury wer« 
authorized to find that the defendant did not understand the con- 
tents or purport of the instrument. ' ' 

In Davis vs. Diamond Carriage, etc. Co., 146 Cal. 61, the court said: 
"We think the jury and the trial court were fully warranted in 
finding against defendant its contention, based upon a 'receipt in 
full of all demands, ' that the damages here sought to be recovered 
had been settled and paid for by defendant. The written receipt 
did not di.scharge the indebtedness unless it was so intended at the 
time it was made. Plaintiff testified that the receipt was for his 
wages, and the amount which was paid at the time of making the 
receipt exactly covers his wages and the ten dollars defendant pro- 
posed to pay on the doctor's bill. The plaintiff's testimony looks 
rea.son8ble, and the jury were warranted in acting upon it." 

If, then, a jury has the right to go Iwyond the recitals contained in a 
purported release, the execution of which is admitted, and award dam- 
i^gCH, it follows that this Board may exercise the same right where a 
release is relied upon as a bar to the claim for compensation. 

In the matter now before us, while it is true that the applicant did 
not fully understand his rights or the contents of the instrument which 
he executed, owing to his inability to understand the English language, 
it appears that he did have some general idea of its contents, since he 
referred to it as a "damage paper," and that every reasonable effort 
was made by the defendant to make him understand it. In my opinion 
he had at least sufficient understanding of the in.strument to put him 
on notice, and as he executed the instrument after notice and an oppc»r- 
tunity to ac<|uire knowledge, in my opinion, he must be held to he bound 
by the recitals in. and the contents of, the instrument which he execute<l. 

In justice to the defendant it should be stated that at the time of the 
execution of the instrument, both parties thought that the injury to 
a|>plicant would not longer incapacitate hiin and that there was neither 
fraud nor any attempt at cone<'alment on the part of defendant. On 
the contrary, the defendant acted fairly in every particular and seemed 
to use every effort to make applicant understand the provisions of the 
release. Still, although a contract may not be in anywise tainted with 
fraud, actual or constructive, andcven though there is mutual assent to 
its terms, it still can not be enforced against any party who does not 
receive any consideration for its execution. 

Assuming, then, that the applicant is bound by the contents of the 
instrument which he signed and is estopped from saying that its pro- 
visions are contrary to his intentions or understanding, since a release is 
nothing more than a contract, it still follows that he is not estopped 



D.gitizecbyG00glc 



EMPWTEBS' LIABILITY ACT DECISIONS. 65 

from claiming compensation unless he receives some consideration for 
its execution. 

The eonsideration expressed in the instrument under consideratioin is 
the payment of certain expenses for medical and surgical treatment, 
for which defendant was liable to the parties to whom the same was 
paid, aod the payment to applicant of the compensation to which appli- 
cant was then entitled under the act and which defendant, by filing its 
acceptance of the act, agreed to pay. 

The evidence introduced shows, and the instrument itself states, that 
the payment of the expenses and compensation above mentioned was 
the "sole consideration for the execution of this release." There was 
no compromise nor was the amount of the claim in dispute. 

Under such circumstances, I can not see that applicant received any 
consideration for the execution of the release and am of the opinion that 
he is therefore not estopped from claiming further compensation and 
that compensation should be awarded him as ordered by the Board. 
Willis I. Morrison. 



(No. 17— February 24, 1913.) 

(Chapter 339, Laws 1911.) 

ELIZABETH P. WENTWORTH. Applicant, vs. PACIFIC-WAKEFIELD COM- 

• PANT (4 COBPOBATION), De/endant. 
Dependbkct — BoBDEN OP Pboof — EVIDENCE. — The fact that a son nivea money. 
from lime to time, to his parents is not, of itself, sufficient to establish de|)end' 
ency. It muBt appear that the moneyB received are necessarily required for 
maintenance of the standard of living to which they were accustomed before the 
withdrawal of as9istance. The burden of proof is upon the applicant to show 
the fact of dependency and the extent of dependency. The evidence herein is held 
to be insufficient to establish the fact of dependency. 

Application by mother for death benefits on account of the accidental 
death of her son. The facts are stated in the opinion. Relief was 
denied for want of sufficient proof of the fact of dependency. 
Elizabeth P. Wentworth, in propria persona, for Applicant. 
T. A. Scadden, for Defendant. 

Klizabeth P. Wcntworth, the applicant herein, claims compensation 
as a partial dependent of her son, Clarence F. Dodge, deceased, an iron 
worker who was killed on the 19th day of October, 1912, through the 
happening of an industrial accident arising out of and in the course of 
lib employment by the Pacific-Wakefield Company, a corporation, the 
defendant herein, both parties being subject to the compensation provi- 
sions of the "Employers' Liability Act" at the time of said accident. 

Defendant admits its liability for oonipensatioii but claims that de- 
ci'ased did not leave any th'pondents, and that therefore utider the 



C^nOO^^IC 



trf> BMPr^YERS LIABILITY ACT DECISIONS. 

proviHiona of said act its liability is limited to the reasonable burial 
expenses o£ deceased, not exceeding $100. Clarence P. Dodge, deceased, 
is line of several children of applicant li,v a ftirmer marriage and is the 
only such child unmarried at the time of the aecident. It appears that 
applicant was married to her present husband. Orris S. "Wentworth, in 
1894, and that at all tinier subsequent to her said marriage she has been 
living with and supported by him and now lives with him at Sawtelle, 
California, in an uneneumbered home owned by applicant of the value 
(if $750. It further appears that applicant has no children or other 
persons dependent upon her. 

In her application, applicant states that her son, Clarence P. Dodge, 
deceased, "contributed to applicant's support in sums amounting to 
from $200 to $240 per. annum dnring not less than five years preceding 
the aeeidcut." When questioned concerning these contributions appli- 
cant testified that she had not kept any account of such contributions, 
that she had not received any contribution from her son since April, 
1912, some six months prior to the accident, and that at this time she 
received the sum of $10 ; this despite the fact that during all of said 
period of six months her son had been constantly employed and was 
earning about $125 per month. Apart from the specific contribution 
referred to, applicant was unable to recall any other contribution made 
during the year immediately preceding the death of her son. 

We are satisfied that deceased did give his mother .various sums of 
money out of his wages from time to time and prior to April, 1912, 
although it is probable that applicant has overstated the amount of 
these contributions. As has been frequently pointed out by the courts, 
there is a very natural and pronounced tendency for the relatives or 
dependents of a deceased person to overstate and exaggerate the amount 
received by them during the lifetime of the deceased. As a usual rule 
the only person who is able ta testify to any such eontrilmtions is the 
person who receives the sum. and it is very difficult to produce any 
evidence which would contradict the statements made by such persons. 
Under such circum.stances. and in view of the tendency to exaggerate, 
as above stated, such testimony should be very carefully scrutinized, as 
otherwise it would be impossible to guard against claims made without 
foundation in fact, although perhaps made in good faith. 

The burden of proof is upon the applicant to show all facts necessary 
to entitle such applicant to compensation. The fact that a son gives 
money from time to time to his parents is not of itself sufiieient to estab- 
lish a dependency. It is necessary to go further and to show that the 
moneys thus received were used by the person receiving them for main- 
tenance, and that without these moneys they could not have lived as 
they were living before the assist.ance was withdrawn. That they might 



D.gitizecbyG00glc 



EMPLOYEBS' LIABILITY ACT DECISIONS. 67 

have been able to maintain themselves at a lower standard of comfort 
without the assistance does not make any difference, if in fact the assist- 
ance was necessary to maintaiu the standard and was looked forward 
to and relied upon for the maintenance of such standard of living. 
In the case under consideration no such proof was adduced, and, on the 
contrarj', as has been stated, it appears that applicant has been sup- 
ported since 1894 through the earnings and efforts of her present hus- 
band. Orris S. Wentworth, and there was no evidence produced before 
this Board which would even tend to show that their standard of living 
has been in anywise reduced through the death of Clarence P. Dodge. 
Under such eircumatanees it appears to us that applicant can not be 
held to be a dependent of deceased within the meaning of the act above 
cited. 

A. J. PiLLSBUEY, 

Will J. French, 
Willis I. ifoRRisoN. 

Members. 



(No. 20— Febritarj- 24. 1913.) 

(Chapter 399, L^ivh 1911.) 

JULIA R. MOSES, Applicant, vb, STANDARD OIL COMPANY (a cobtoba- 
TIOb), Defendant. 
The applicant above named is the widow of G. H. Moses, who was 
accidentally injured, while in the employ of the defendant, at Coalinga, 
Fresno County, California, on December 3, 1912. Death resulted De- 
cember 4, 1912. The applicant is a non-resident of the State of Cali- 
fornia, residing at Central Lake, Michigan. It was determined that 
she was solely and wholly dependent iipon the deceased for support at 
the time of his death, and she was awarded the sum of $4,003.05, this 
amount being three times the average annual earnings of her deceased 
husband, or $4,500.00, less the sum of $496.95 advanced by defendant 
for the benefit of applicant. The award was paid in full by the defend- 
ant on the 22d day of April, 1913. 

Hugh Jeideld, 

Secretary. 



D.gitizecbyG00glc 



EMPL0TEB8 I.IABtMTY ACT DEnSIONS. 



(No. 19— March 14. 1913.} 

(Chapter 399, Lawa 1911.) 



Dbatii sr AcciDCNT — Proximate Causk.— Where an eraployeo working in n mine 
baa a frieadly scoffle with a fellow employee ahortly before dest^cndini!; the abaft 
in a cage, but waa apparently in Kood condition when he stepped into the ca;;e. 
and during bis descent be sank to the floor in aiich a position that his head 
projected over the edge ao as to strike the shaft timbers, catiKing a fraotiired 
akuU, cerebral bemorrhage and death, and the cause of his fall to the floor of th<^ 
cage is UQcertain. Acid, whatever the retocfto cause of bis death may have been, 
the proximate cauae was a fracture o[ the akull and cerebral hemorrhage due to 
accident occurring in the course of his employment, and his dependents are 
entitled to a death benefit. 

P KPE N DEN cr— Finding of Fact.— Evidence held auflicieDt to establish partial 
dependency on the part of applicants, the father and mother of said deceased 
employee. 

This is ah application by thu parents of the deceased employee for 
a death benefit, as partial dependents. The facts are stated in the 
opinion. The applicants were awarded the sum of seven liundred 
eighty-five dollars and ninety-two cents ($785.92). 
James Snell, attorney, for Applicants. 
Lloyd P. Larue, attorney, for Defendant. 

During the interval between having dressed to go down in the mine 
and the time to go, Ernest Crase and James Quiclc engaged in a 
moment's friendly scuffle. Unfortunately, Quick had in hif hand a 
miner's candlestick made of steel and having a sharp puint intended to 
be driven into a post or other timber in order to hold it where wanted. 
The point of this instrument penetrated the clothing of Crase and 
made an apparently slight wound in the abdomen, a little above and 
to one side of the navel. The two went to the office where an examina- 
tion was made and some peroxide applied. There was no effusion of 
blood and CrEise entered the dolly cage in apparent good condition. 
The drop was 1,600 feet in entire darknc-s. During that drop Crase 
sank to the floor of the cage with hia head projecting over far enough 
to cause it to be hit by the timbers of the shaft at intervals of five 
feet, causing death. The issue turns upon whether (nr not the slight 
stab was the cause of death or if death residted from an industrial 
accident. 

It is impossible that any human beiiifj; shall over know by what 
initiatory or ulterior means Cni.se came to his death. Nevertheless, it is 
incmnbent upon the Industrial Accident Board to determine the issue 
a.s best it may in the light of the evidence and the preponderance of 
probability. 

This much we do know: Crase was alive and apparently little injured 
when he stepped into the cage to descend 1,600 fci^t to the paint where 



EMPLOYERS LIABILITTf ACT DECISIONS. 69 

he was to work and that when the cage reached the 1,600-foot level he 
was dead, death having been caused by the striking of his head against 
the timbers of the shaft as the cage rapidly descended. Whatever the 
remote cause of his death may have been, the proximate cause was 
fracture of the skull and cerebral hemorrhage and this was the result 
of accident. 

It is within the bounds of possibility that, while "skylarking" with 
his ehum, James Quick, the jilayful thrust of the latter's candlestick 
may have perforated the abdominal wall of decedent's body, causing 
internal hemorrhage which, in turn, may have caused Crase to faint and 
fall in such a way as to allow his head to project over the floor of the 
cage far enough to strike the timbers of the shaft. The only direct 
evidence on the subject of abdominal perforation was that of Dr. Joseph 
P. Walsh, who testified that he had exaniined the wound and had sought 
with a prohe to determine if the walls of the abdomen had been per- 
forated and was unable to trace any such perforation. The greater 
probability appears to the Board to be that when Quick called out, 
"Grab the bonnet bars, boys, the fork has broken loose," and in the 
commotion that instantly ensued, Cra.se fell or was jostled so far over 
against the bar of the cage as to caase his head to come in contact with 
one of the timbers of the shaft, one blow from which was sufficient to 
prostrate him and the timbers that followed to beat his head to a pulp. 

Xot withstanding the reluctance of the mother to testify regarding the 
little hoard of money she had laid away against the proverbial rainy 
day, we think her testimony worthy of some credence. We think it fair 
to estimate that out of the average monthly earnings of decedent, 
amounting to $63.8;). we may fairly deduct $10.00 per month given him 
to supply personal needs and .spending money, $12.00 per month that 
he banked in his own name, $12.50 per month for his own personal 
chaise upon the family expense bill for his keep, and $7,50 that his 
mother laid away against some time of greater need. This would make 
a total of $42.00, which being deducted from his average monthly earn- 
ings, left for his average monthly contribution to the support of his 
parents, the sum of $21.H;f, or $261.96 for his average annual contri- 
bution to such support. This annual sum constitutes 34.2 per cent of 
his annual earnings of $766 and determines the proportion of three 
times such average annual earnings which may rightfully be awarde<l 
to his partially dependent parents, such sum being $785.92. The award 
is consequently made on that basis. 

A. J. I'I[,I,SBUKV, 

Will J. French, 

Members. 



at the IdLWS o( Ittll, mid tlic rvi-ord was tmniunlttpd to tlv; clerk ol the Superior 

on June 25. lUiS. miil. ii'ti AiwiikI -J', Il<i:i, the v»urt runderuU Ha JuilgmeDt affl'rmlliB 
the award at the tndustrlul AccJik-nt Ilounl. C^ 



70 EMI'LOYKIIS LIABILITY ACTT nKCIBIONfi, 

(No. 29— May 7, 1913.) 

(Chapter 399, Laws 1911.) 
ERNEST MEDEROS. Applia 

Line of Ddtt — Depabitub Feom.— Where a boy Biiteen years of age \rns emiiloyed 
to become a circular san operative, but waa a novice at such work, and it wan 
the rule and practice of the plant to have sucb novices instmctGd by ei|)orieneed 
nawyers, and the boy was (akins his course of inatruction before being put in 
charge of a saw, aad during the absence of his instructor ventured to operate 
a saw on bis own account, and suffered accidentia! injury, it was hcU that he 
was not acting within the line of bis duty at the time of the accident, but was 
adventuring upon an enterprise fraught witti hazard wilhoiit the linowlcdge or 
consent of his enperiors, and is not entitled to compensation. 

This is an application for compensation for an injury to the thumb 
of the left hand of the applicant caused by contact with a circular saw. 
The facts are stated in the opinion. Compensation was denied for the 
reason that the injured employee was not performing service in the 
line of his duty at the time of the accident. 

Ernest A. Mcdcros, in propria persona, for Applicant. 
Borland & Johns, agents, for Defendant. 

The Essex Lumber Company is engaged at Deeoto, Alameda County, 
in sawing out of incense cedar blocks slats for raw material for making 
lead pencils, the slats being sorted as to color and shipped to New York. 
Its help is mainly unskilled and young, which the management breaks 
in or trains to the service as best it may. A chief function in the 
eaurse of the manufacture is the sawing of slats pencil length, about the 
width of six pencils and half pencil thickness, the sawing being done 
with circular saws run at a high rate of speed. As a prerequisite for 
being entru.sted with the operation of the saw the candidate must first 
have manifpstc ! a sufficient degree of intelligence and discrimination to 
be able quickly to determine the way the grain of the wood runs in each 
block as picked up, for if the block be sawed the wrong way of the 
grain, the woo^l will be wasted. Habitually each naviee is placed in 
the charge of a more experienced sawyer to lie shown how to operate a 
saw before being assigned to the operation of such saw. 

On or about November 25th one Ernest Mederos, a lad of sixteen 
years of age. was employed to work in the factory. At the time of 
his employment there was conversation l)etwe<m the manager of the 
plant, Mr. Crocker, and him.self with relation to work upon a saw which, 
while it did not specifically amount to a declaration that such employ- 
ment would be furnished him. was sufficient to justify sueh an expecta- 
tion on Slederos' part.. 

TTpon one occasion Frank Muni?., an experienced sawyer, without 
direction from the manager, instructed Mederos for a minute or two in 
the operation of the saw but, seeing that Mederos was inclined to be 



EMPLOTEHS' LIABft-ITY ACT DECISIONS. 71 

rec^kless, diseontinued the leason to await the instructions of the inan- 
iiger. Later he told JEederos to "hurry up and finish" the work he 
was tlten doing wliereupou he, Muniz, would teach him, Mederos, how 
to operate the saw. When Mederos had finished the task a.ssigiied him 
he returned to the place where the saw was but Muniz was out of the 
building. However, the foreman was showing another beginner how 
to operate a saw only a step or two from the saw Muniz had been 
operating. Having watched the giving of the le.'ison a few momenta 
Mederos, observing that the operation seemed simple, picked up a block 
and sawed two slats successfidty {albeit the wrong way of the grain), 
but on the third attempt, in withdrawing his hand after the piece had 
passed through, allowed his projecting left thumb to come in contact 
with the saw, sustaining a very severe laceration of the member amount- 
ing almost to amputation and resulting in a stiffening of the first or 
distal joint for life. 

Up to the time of this ac<'ident and injury, which took place on the 
second day of December, no specific instructions had been given or 
posted warning employees not to attempt to use the saws without 
instructions from the manager, or without first being instructed in the 
use of such saws by some person in authority, nor had there been any 
effective, or even serious, effort to require the use of safety appliances 
in the operation of snch saws. Being a boy, it was natural that Mederos 
should desire to operate a saw and, having seen others operate the saws, 
it was not unnatural that he\should think that he eould do it equally as 
well. Those who employ immature lads in their business owe to them 
a measure of surveillance and precautionary discipline not required 
where employees are persuns of mature years and judgments, and the 
management of the Essex Lumber Company should have known in 
advance that that which did happen would be very likely to happen, 
if the precautionary measures taken after the accident had been taken 
Ijefore the accident it is altogether likely that that accident would not 
have occurred, hence the management can not be held blameless in the 
promises. 

Nevertheless, the statute is explicit in declaring that liability for com- 
pensation shall exist against an employer for any personal injury acci- 
dentally sustained by an employee imly where, among other prerequi- 
sites, "at the time of the accident the emploype is acting within the line 
of his duty." It can not be contended that Mederos was so acting at 
the time of the accident which befell him. On the contrary he was 
adventuring upon an enterprise fraught with hazard without the knowl- 
edge or consent of any of his supi-riors, and f<ir this rea-on, and this 
alone, his application for compensation nuist be denied. 

A. J. l'iLi,«ucKy. 
Wn.L J. French, 

Members. 



72 EMPI.OVKBS' LIABILI-Py ACT DECIStONB, 

(No. 23— May 13. 1913.) 
(Chapter 399, Laws I91I.) 
PETER CUNNINGHAM. Applicant, vb. LOCKE CONSTRUCTION COMPANV 
{a COrpobation), and SOUTHWESTEKN SIJRFTTY INSURANCE COM- 
PANY (a COBPOBATION), Defendantt. 

iNSUBAncB — Eupi.otze'b Rights Against Insubeb. — Under the provisioas of sec- 
tion 24 of chapter 399 of the Laws of 1911 an insurer which iosures ao 
employer asaiost liability for compcuBatioQ, thereby assumes certain direct 
Btntutorj' obligatioQB to the iniured employee, wbo Is, in effect, made n iiarty to 
the contract of insurance, and nay enforce hie right to compensation atcainst 
the iuBuier in his owD<name. 

Insubamcb— PS0VI810N8 OF PoucY Inconsistent Wrru I^w Abe Void.— Under 
the provisions of section 25 of chapter 399 of the Laws of 1011 contraete of 
insurance are deemed to be made subject to Ihe provisions of said law and an; 
provision of an insurance policy inconsistent with the law is void. It is accord- 
ingly, held herein that a condition of the policy wbicb attempts to limit the 
liability of the insurer by requiring actual payment of compensation by the 
employer as a condition precedent to such liability is inconsistent with the ri^ht 
of the employee to enforce such liability in his own name diri'ctl.v against the 
insurance carrier and is, therefore, (o that extent, void, and the employee is 
entitled to an award against the insurance carrier. 

This is an application for eompeiL^ation by an employee for an injury 
lo his back. The facts are stated in the opinion. Compensation was 
awarded the applicant anainst both the defendants in the sum of 
one hundred seven dollars and eighty-six cents ($107.86), of which 
forty-eight dollars and seventy-five cents ($48.7r») had been paid prior 
to the award, leaving a balance due of fifty-nine dollars and eleven 
cents ($59.11). 

Peter Cunningham, in propria persona, for Applicant, 
Lloyd & Spcnglrr, agents, for Southwestern Surety Insurance Com- 
pany, Defendant. 

Peter Cunningham, the applicant herein, a day laborer in the employ 
of the defendant, Loeke Construction Company, was accidentally 
injured on the 28th day of September, near the city of Niles, California, 
while at work for said defendant in an excavation. At the time of the 
injury, both Peter Cunningham and the Locke Construction Company 
were under the provisions of the compensation act. Prior to the hap- 
pening of the injury, the Locke Construction Company insured its lia- 
bility for compensation with the other defendant, Sfouthwestern Surety 
Insurance Company, and this insurance was in full force and effect at 
the time of the injury, though afterwards cnncellcd few non-payment of 
the premium therefor. 

Upon the hearing Ivefore the Board, neither the liability of the Tjocke 
Con.stn]ction Company nor the amount of compon-sation to which the 
applicant was entitled was seriously conlroverted, the only question 
presented being iis to whether the applicant is entitled to an award 



employers' liability ACr DECISIONS, 73 

against the insuranee company. To determine this question resort must 
be had both to the insurance policy issued and to the provisions 
of the eompensatiou act relative to insurance against liability for 
compensation. 

The insurance policy was the ordinary form of "Contractors Em- 
ployers Liability Policy" usually issued by said insurance company, to 
which was attached the following endorsements: 

"workmen's COMPENSATHIN ENDORKBMENT, 
"It is hereby understood and agreed that this policy shall cover 
the entire liability of the assured as outlined in chapter 399 of the 
Laws of the State of California, 'An act relating to the liability 
of employers for injuries or death sustained by their employees, 
providing for compensation for the act^idental injury of employees, 
etc.,' and known as the Roseberry Employers' Liability Act, as 
approved April 8, 1911; and 

"It is further understood and agreed that the limits of the com- 
pany's liability as defined in paragraph A of the conditions of this 
policy, shall apply as respects claims or suits to enforce payment 
of damage under section 1 of said act; and the limit of the com- 
pany's liability as respects compensation payable under section 3 
and succeeding sections of said act shall also be as defined in said 
paragraph A of the conditions of this policy. 

"Subject otherwise to all the conditions, agreements and limita- 
tions of the policy as written, except as herein specifically men- 
tioned. ' ' 

The only conditions contained in the ' ' Contractors Employers 
Inability Policy," above referred to and which need be noticed, are the 
following; 

"A. The company's liability on account of an accident to one 
person is limited to five thousand dollars (.'65,000.00) • • • 

"P. This policy may be cancelled by either of the parties hereto, 
upon written notice stating a date not less than five (5} days there- 
after when cancellation shall be effective " • • 

"L. No action shall lie against the company for any loss or 
expense under this policy unless it shall be brought for loss or 
expense actually sustained and paid in satisfaction of a final judg- 
ment, within ninety days from the date of said judgment and after 
trial of the issue • • •." 

As between the employer, Locke Construction Company, and the 
Southwestern Surety Insurance Company, the first paragraph of the 
"Workmen's Compensation Kndorseuient" clearly covers the entire 
liability of the (mployer. under the conipcnmition act. to the applicant 
herein, and unices restricted by other conditions contained in the policy 
or imposed hy law, the employer would he entitled to full indemnity 
from the insurance carrier. 



D.gitizecbyG00glc 



74 employers' liability act decisions. 

The restrictive conditions "A" and "F" may be dismissed with the 
brief statement that the employer's liability for compenBation to the 
applicant tloes not exceed the limit fixed \indcr condition "A" and that 
the insurance policy was in full force at time of the accident and the 
notice cancelling the policy authorized under condition "F" was not 
served until after the happening of the accident for which compensa- 
tion is claimed. 

As between the employer and the insurance company it is equally 
clear that under condition "F" contained in the policy, the liability of 
the insurance company to the employer does not accrue until an award 
has actually been made against the employer, and the liability of the 
insurance carrier then accruing is further limited by the amount of 
expense actually paid by the employer in resisting said award and 
actually paid by him in satisfaction thereof. 

There is apparently nothing in the compensation act, cited in the 
"Workmen's Compensation Insurance Endorsement" above quoted, 
which would prevent the enforcement of the conditions contained in 
the policy under discussion as against the employer. Section 24 of the 
act provides : 

"Nothing in this act shall affect • • • the right of the employer 
to insure in mutual or other companies, in whole or in part • • • 
against the liability for the compensation provided for by this act, 
" • • as between the employer and the insurance company, pay- 
ment by either directly to the employee, or to the person entitled 
to compensation, shall be subject to the conditions of the insur- 
ance contract between them." 

Therefore, it would .seem to follow that if the employer desires to 
enter into an insurance contract which contains conditions such as are 
contained in this policy he is authorized under the act so to do. 

The employer is not required to execute the policy if he is not satisfied 
with its conditions, and if he does execute it, he has only hinwelf to 
blame if he does not get the full measure of protection to which he 
thinks he is entitled. 

One of the liability companies in a pamphlet issued in 1011 states: 
"The companies of this cla.s.s. both in England and America, 
were not called into existence to administer any fund for the benefit 
of the employee ; in fact, collet^tcd no premiums from him ; bore no 
contractual relationship whatever to him. and were answerable to 
him for the fulfillment of no possible obligation either moral or 
legal ; rather, they were called into existence to bear the burden, for 
the employer, that was imposed upon him by law, arising out of 
accidents to his employees. Their relatitmship was only with the 
employer and contemplated only an indemnity to him, to the 
extent of the amount for which he could legally be held responsible 
to his employ** for damages arising out of accidents to such 
employee." 

i:Qi,.r::::G00'^lc 



KMPI/)YKI1b' liability A(T DKCIStONS. ITi 

Whatever may have been tho relations of the liability insuran<;e com- 
panies to the employee in the past, there can be no question but that 
under the present act, by insuring the employer against liability for 
compensation, the insurance company thereby assumes certain direct 
statutory obligations to the injured employee. Section 24 of the act 
provides : 

"But liability for compensation under this act shall not ho 
reduced or aflfected by any insurance, contributions, Oir other benefit 
whatsoever 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, and in the manner provided in this act, 
the liability of any insurance company, which may, in whole or in 
part, have insured the 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 • • •." 

Under the sections cited, the employee is in effect made a party to 
the insurance contract and may enforce the same in hLs own name. 
Under the succeeding sections of the act such contract for insurance is 
deemed to be made subject to the provisions of this act and any pro- 
vision thereof inconsistent with the act is void. 

We are of the opinion that the condition in the policy which attempts 
to limit the liability of the insurance company by requiring a<;tual pay- 
ment of compensation by the employer as a condition to such liability, 
is inconsistent with the right given to the employee to enforce such 
liability in his own name directly from the insurance company and is 
therefore, and to that extent, void. It would plainly be an absurdity to 
say that under section 24 of the act the employee has a right against the 
insurance company, but that this right does not accrue to him until ho 
has been paid the full amount of compensation to which he is entitled 
and then no longer exists because there is nothing coming to him. 

For the reasons -stated, we are of the opinion that the applicant is 
entitled to an award against Iwth tin- Locke Const nut ion Company anil 
the Southwestern Surety Company. 

A. J. PiLLSBllRY, 

Wii-L J. French, 

Wn-LIS I. JIOHBISON, 

Members. 



D.gitizecbyG00glc 



76 employers' liability act decisions. 

(Na 15— May 15, 1913.) 

(Chapter 390, Laws 1911.) 

JOB GIANDINI. Applicant, vs. GENERAL CONSTRUCnON COMPANY (a 

OOBPORATioN), Defendant. 

Evidence— BuRDEB of Pooof. — Tbe burden of proof is upon Ihe applicnnt to estab- 

lisb all the facts upoD which he bnees his daim for compensation. Evidence in 

this case held ioBufficient to prove that an accident happened to the applicant. 

and, it it did, tbat sach accident was the proximate cause of tbe alleged injury. 

This is au application for compt'iisatioii by a carpenter whose dis- 
abilitj' was caused by a felon on the thumb of his right hand. The facta 
are stated in the opinion. Compensation was denied. 
Joe Gianditti, in propria persona, for Applicant, 
Charles M'. Slofk and Cluiunceij S. Goodrich, attorneys, for De- 
fendant. 

Joe Oiandini, the applicant herein, a carpeiiler, in the employ of the 
General Construction Company, a corporation, while working for said 
defendant, near Shale, in the county of Kern, State of California, dur- 
ing the month of Septwnber, 1912, contracted a bone felon on the thumb 
of his right hand and was thereby disabled for a period of six weeks. 
Applicant claims that this felon resnlted from an injury sustained 
through the accidental dropping of a one hundred pound bolt or rod 
upon his thumb, wliile he was at work for defendant putting down some 
concrete pump foundations on the 9th day of September, 1912. 

As wc pointed out in McAvin vs. The Viiy Electric Company, a corpo- ■ 
ration, the burden of proof is upon the applicant to establish all the 
facts upon which he bases his claim for compensation. In the matter 
under consideration, the burden of proof is upon the applicant to 
establish as a fact that an accident happened, and that the accident 
was the proximate cause of the injury complained of. On these points 
the evidence is conflicting; and inconclusive. 

It is well known that felons may occur either with or without injury 
to the part affected, that severe bruises do sometimes cause them, and 
that the.i' are sometimes caused by infection where there has been no 
bruise or other injury whatever to the part affected. There may have 
been such an accident, as the applicant alleges, and such accident may 
have caused the felon, but if so, applicant has failed to furnish evidence 
sufficient to establish these facts, and for that rea.son his contention that 
uompcnsjition is due him fails, 

A. J. PiT.LSBUBY, 
AVn.L J. PltENCH, 

Wilms I. HIorkison, 
Members. 



D.gitizecbyG00glc 



EMPLOTBns' LIABILITT ACT DEOIStONS. 77 

(No. 32— May 15, 1913.) 

(Chapter 399. Laws 1911.) 

T. E. HART, Applicant, vs. THE MAMMOTH COPPER MINING COMPANY 

(a COIIPOBATION), Defendant. 
Emploteb and EiiPiflTta^— Inditekdbnt Contractob — Dieection akd Contbou— 
Tbe applicaat worked a part of the time od wages, and a pert of the time undpr 
contract at a stipulated price per linear foot for driving a drift, liiricg hia own 
men when working under contract. The pay of theae men waa guaranteed by 
the company. Both tbe eppticont and bis men worked under the mine foreniau. 
who exercised full control over at] of tliem, as to methods of work, bourn of 
work and other maltem in connection with the employment. The company 
furnished the applicant, without charge, such tools, powder and equipment as 
the prosecution of the work required. //cW, that the vital factor to establish 
the Hiatus of employer and employee is that of direction and control, and that 
tbe facts here show all the essentials of n contract of hire so as to establish the 
relation of employer and employee, rather than owner and independent con- 
tractor. 

This is &n application for compensation for a slight injury to the 
fingers of the applicant. The claim was for a very small amount. The 
case was submitted upcm stipulations to determine the status of the 
parties — whether of employer and employee, or of owner and inde- 
pendent contractor. The Board decided that the applicant was an 
employee and awarded compensation in the amount of nineteen dollars 
and eight cents ($19.08), 

r, E. Hart, in propria persona, for Applicant. 
Pillsbtiry, Madison & fiutro, attorneys, for Defendant. 

During practically all of the year 1912, T. E. Hart, a miner, was in 
the employ of the Mammoth Copper Mining Company, a. corporation, 
at its mine near the town of Keunett, in the State of California, either 
upon a contract or a day's pay basis. While working on a contract 
basis for two hundred twenty-eiglit and three fourths days, he earned 
an average wage of five dollars and eighty-seven cents ($5.87) per day. 
While working on a day's pay basis for ninety-three and three fourths 
days, he earned an average of three dollars and twenty-three cents 
($3.23) per day. The only point at issue in the controversy is as to 
which of these rates of wage payment, if cither, and if not either, then 
what rates of wage payment, should furnish a basis for calculating the 
weekly compensation due the applicant for disability resulting from an 
industrial accident while in the employ of the said defendant. 

It is rctiuisite first to determine whether or not, during the perform- 
ance of the contract work, Hart was an employee of the Mammoth Cop- 
per Mining Company or an indcpcndi'nt contractor. 

When having work done on the contract basis it is the custom of the 
mine to pay the contract miner a stipulated price per lineal foot for 
driving a drift, such contract miner hiring his own men and agreeing 



D.gitizecbyG00glc 



78 employers' liability act decisions. 

to pay them a little better than the regular mining scales of wages, 
settlement by the men being made wJtli the contraetor, except that it 
has been the custom of the company to guarantee to the employees of 
such contract miner the pay which the contract miner promises them. 

With reference to the all important subject of control of the working 
forces it was stipulated that the Mammoth Copper Mining Company 
exercises very fnll eantrol over the workmen and working methods of 
the men whom the employing contract miner has in his employ as to 
hours of labor, etc. That is. while the men working for the contract 
miner are under his immetliate charge, the contract miner himself and 
his men are under the charge of the foremen of the mine and if such 
foreman should find either the contract miner or his men doing improper 
or uneconomical work such mine foremen would have and could exer- 
cise power and authority to correct such errors and practices. The 
defendant mining company also furnishes such contract miner, without 
charge, such tools, powder, et<;., as the prosecution of the work requires, 
the contract miner merely furnishing the labor required to drive the 
drift. 

The line of demarcation between independent contracting and service 
under a contract of hire is sometimes extremely shadowy and hard to 
establish, but inasmuch as compensation is based wholly upon contracts 
of hire and each employee must, in case of injury by accident, look to 
his employer for comiieusation, it becomes imperative to delimit such 
line of demarcation with all possible distinctness. This the Industrial 
A(?cident Board will, at this time and in this case, undertake to do. 

Section 2009 of the Civil Code of California reads as follows: 

"A servant is one who is employed to render personal scrviees to 
his employer, otherwise than in the pursuit of an independent 
calling, and who, in such service, remains entirely under the control 
and direction of the latter, who is called the master." 

The determinative words of this section are the words italicized. 
(Cailan vs. BiiU, 113 Cal. 598; Fay vs. German General Benevolent 
Society, 163 Cal. 121.) 

In the ease in question while the selecting of the men was done by 
Hart it is clear that the effective control over, and the ultimate respon- 
sibility for payment of, Hart's men rested and remained with the 
Jlanunotli Copper Mining Company, even including the power to dis- 
charge. If it be so with Hart's men. how then with Hart, himself? 

Again wc refer to the above section: "A servant is one who is em- 
ployed to render personal scn-iees, otlierwixc than in the pursuit of an 
independent calling," etc. The calling of Hart was not independent, 
lie was a miner engaged in the same occupation as that in which the 
Mammoth Copper Mining Company was engaged, to wit, mining ore. 



::GoO'^lc 



employers' LrABILlTY ACT DECISIONS. 79 

If he had been engaged to erect a smokestack or to construct a bridge 
he might easily have been an independent contractor nnd his men would 
not have been employea-i of the defendant corporation. 

Again, as admitted by the defendant corporation, "while Mr. Hart 
had direct charge of the men, the mine foremen had charge of Mr. 
Ilart." And 'control and direction" being the vital factor in deter- 
mining the status of employers and their employees, we think that the 
status of Mr. Hart himself was that of an employee of the Mammoth 
Copper Mining Company and that the contract method of having work 
done is only another way of cumpensating a wage service. It is essen- 
tially a "contract of hire," under the provisions of the act. It is a 
method of paying a bonus for particularly efficient work by offering a 
margin of increased pay commensurate with the increased efficiency of 
the workers. 

Having reached this conclusion the method of determining the aver- 
age annuHl earnings of applicant Hart is much simplified. He had 
worked substantially the whole year previous for the same employer 
in the same employment, viz: two hundred twenty-eight and three 
fourths days on a contract basis and ninety-three and three fourths 
days on a day 's pay basis, or a total of three hundred twenty-two and 
one half days, for which service he had received an aggregate wage 
payment of one thousand six hundred forty dollars and seventy-seven 
cents ($1,640.77) or an average daily wage of five dollars and eight 
cents seven mills ($5,087) which multiplied by 300, as the statute 
directe, gives one thousand five hundred twenty-six dollars ($1,526.00), 
as the average annual wage of said Hart Dividing by 52 we find 
the average weekly wage to be twenty-nine dollars and thirty-five cents 
($29.35), 65 pel' cent of which is nineteen dollars and eight cents 
($19,08), the compensation due for one week, or three dollars and 
eighteen cents ($3.18) for one day, 

A, J. PiLLSBURY, 

Will J, Pkbnch, 

Members. 



D.gitizecbyG00glc 



80 employers' liability act decisions, 

(No. 30— May 20, 1913.) 

(Chapter 399, I^WB 1911.) 
JOSEPH PKNDO, AppUoant, vs. MAMMOTH COPPER MINING COMPANV (a 

corporation), Defendant. 
T&upoBART Disability— Term in ATioN— Evidence — Traumatic Neurosis. — Where 
there is a dispute between the parties as ro tbe termination of a temporarj dis- 
ability and the E>^Bt preponderance of the testimony of medical eiperta satis- 
tactorily shows a recovery from the iniury, tbe belief of the applicant Chat he 
contiDues to l>e disabled and in a serious condition so as to incapacitate him 
from performing his usual labor is Co be attributed to traumatic neurosis. 

Application lor compensation for broken rib. The facts are stated 
in the opinioo. Compensation was found due the applicant in the 
sum of $40.83, of which the sum of $14.46 hail been paid by the 
defendant. The award was for the balance, $26.37. 
Joseph Pendo, in propria persona, for Applicant. 
Pillsbury, Madison tt Sutro, attorneys, for Defendant. 

Joseph Pendo worked for a few days for the Mammoth Copper Mining 
Company in its mine near Kcnnett, Shasta County, California, as a tim- 
ber helper. While working on the night shift at about 10:30 o'clock on 
the night of January 30, 1913, and while in the act of placing a 6 by 8 
timber to prevent a threatened cave-in, the material came down and 
thrust the end of the timber against his right side with such force as 
to throw him to the ground and break the fifth rib on the right side 
a few inches from where the rib united with the spinal column. 

Pendo, not realizing that he was much hurt, worked out his shift 
that night and his full shift of eight hours the next night, but 
the injury so pained him that on the third night he worked only an 
hour, whereupon he desisted and went to the bunkhouse. Early the 
next morning he applied to the physician at the mine, Dr. T. E. Grubb, 
who examined him, reduced the fracture and attended him at times 
until the 20th of February when, at Pendu's solicitation, light work 
was found him at cleaning out a drain for draining the mine. 

Pendo worked in this capacity, receiving two dollars and seventy- 
five cents per day therefor instead of three dollars ($3.00) that he 
had been receiving at the time he was injured, until and including 
February 28th, when he ceased work. The next day he left for 
San Jose where he placed himself under the care of Dr. M. W. Knapp, 
who upon examining him found that Pendo was sensitive in the region 
uf the gall bladder, that his side was somewhat swollen and that his 
pleura was somewhat affected. lie treated Pendo for a week, during 
which time he "rrcatly improved. He advised Pendo to rest for a week, 
or two, until he recovered. 

On or alKiiit March 12th, Pcnd() returned to Kennett and made a 
demand for tlie payment of certain medical bills, incurred, as he 



Google 



employees' liability act decisions. 81 

claimed, as a result of his accideat. The tompauy refused to allow 
the same on the ground tliat there had been no disability after he had 
returned to work on Februarj- 2l8t. Pendo was then and there exam- 
ined by Vr. Sandholt, the company's phyaician, who found nothing 
the matter with him, Pendo then went to Redding on or about March 
23d and was examined by two physicians of that place, Drs. F. Stabel 
and B. F. Saylor, who found nothing the inatter with him, whereupon 
he came to San Francisco and, on the 27th of March, instituted this 
proceeding. 

That Peiidit l>elieves that he is a thoroughly sick man and probably 
has not long to live is fairly evident. Hut if reliance is to be placed 
upon miHlicat testimony, it is e<tua!Iy evident that there is little or noth- 
ing the matter with him except that his thinking so may make it so. 
Certainly nothing has been proved to warrant the Board in finding that 
he is at this time disabled either permanently or temporarily, totally 
or partially, or that he has been so disabled for many weeks. No less 
than eight physicians have examined him and, at the instance of this 
Board, X-ray photographs have been taken. Five of the physicians 
found ndthing the matter with him capable of creating disability. 
Dr. Gnibb, who treated him in the first instance, found nothing beyond 
the fracture of one rib, which had so far healed in three weeks that he 
-suffered Pendo, at Pendo 's request, to go back to light work. Dr. 
rjrubb did not see him afterward. 

On or about March 5th, Dr. Knapp of San Jose examined him and 
found inflammation in the region of the gall bladder, and expressed 
the opinion that he had returned to work too soon with injurious 
results, but pronounced him much improved at the end of a week's 
treatment. On March 12th, Dr. Sandholt of Kennett examined him and 
found nothing the matter with him, and ten days later two reputable 
practitioners of Redding examined him and found nothing wrong 
with him. Between April 10th and the date of the final hearing 
Pendo was examined by three reputable medical practitioners in San 
Francisco, only one of whom foimd anj'thing, a dry pleurisy, which 
was deemed adequate to caase disability, and he admitted that this 
might have had other than a traumatic origin, although he thought that 
the likelihood that it arose out of the injury was far the greater. One 
of the other physicians found no symptom of a dry pleurisy, and the 
other, while finding such .symptoms, did not regard the ailment as 
sufficiently grave to cause disability. 

■ Feeling, as the Board does, that it has about exhausted its resources 
for ascertaining the existence of disability in the ease of Pendo, and 
under obligation to conform its findings of fact to the preponderance 
of medical testimony, the Board makes its findings and awards in the 



0—11585 



D.gitizecbyG00glc 



82 employers' LIABILITT act DEOISIONS. 

belief that, in tlie case of Peiido, it is dealing with a case of traumatic 
neurosis, that is, with one who is ill because he nervously imagines that 
he is ill, and that the illness which resulted from the injury has long 
since ceased. 

A. J. PiLLSBURY, 
WttJ. J. French, 

Membfrs. 



{No. 22. May 27, 1013.) 
{Chapter 339. Laws I9II.) 

OFIARI/yrTE S. BEI.KNAP. Api>lir«ul. vs. MERVY-KI.WEM. CO.. Defendant. 

WiiJTL MiscoNDi'CT — WiucLNESS^yrESTiON OF Fact.^No Kpufral role of law 
can bn establishml delininE aecuralely what conetituteB wilful misconduct on tbe 
part of BD ^mptoyM, The question is one of fnct and must be dclemilned by the 
facts presented in each particular case. The miscoudiict must be wilful, wbich 
means that it must be iutpntional, i. e.. deliberate, with au exerriac of the wilt 
as opposed to accident. nesligeiLc'e. inadvertence, and thouchlless act on the spur 
of the moment, or an error in judtcment. 

1 1).^ Violation of Obuers. — The deliberate and intentional violation 6t eipress 
orders, framed for tbe purpose of preventiuK .iccidents. and with tlie clear intent, 
on the part of tbe employer, that such order is made to be followed and enforced, 
and not for tbe purpose of avoiding responsibility, will usually be held to be sucb 
wilful misconduct as to defeat the right to compensation. But if the employee 
is vested with discretionary powers, and is oipectod to use liis own judgmeut as 
to the manner in wbich the work is to be performed, and as to the ne<-eBsity of 
doing it in a particular way. he can not be charged with wilful misconduct in 
the event be docs not at all times follow sueeestions nnd general directionR 
given by the employer. 

Id. — Id. — (^nuonation, — The wilful disobedience of an order, made for the protec- 
tion of the injured employee, even if such .lisobedienoe is for the puri>o3e of 
securing "results," will, nevertheless, constitute wilful misconduct unless it 
further appears that this disobedience is condoned by the employer. (Diasenling 
opinion by Will J. French, holding that no decision on this point is necessary 
or proper to determine this controversj, ) 

In. — Defense — Bubpen of Pboof. — Wilful misconduct is n matter of defense, and 
the burden of proof ia upon the employer, who relies upon it. as a defense, to 
show (1) tbat the injured penion was guilty of misconduci, (21 that such mis- 
conduct was wilful, and (3) that the injury was caused by the wilful misconduct. 

This is an application by the widow of a deceased employee for com- 
pensation for the death of her hu»iband, as the result of an accident. 
The facts are stated in the opiniim. The applicant was awarded the 
sum of $5,000.00. payable in equal weekly installments of $32.05, until 
Ihe whole amount shall have been paid. 

CharUiile ti. Rclknap, in propria persona, fur Applicant. 
Schwartz li I'owcU, attorne\s, for Defendant, 
Charlotte Hi-lknap, the applicant herein, claims compensation for the 
death of her hnsbaud, Corrington L. Belknap, who was killed on the 



employers' ijabilitt act decisions. 83 

27th day of November, 1912, by accident arising out of and in the 
course of his employment with the defendant, Mervy-Elwell Company. 
The defendant claims that the accident was caused by the wilful mis- 
conduct of the deceased and that, therefore, no compensation should 
be allowed. 

At the time of the accident defendant was building a trestle near 
Glide's pump house, in Yolo County, for the Oakland. Antioeh and 
Eastern Railroad Company, and at the same time was engaged in other 
construction work across Yolo Basin, some miles distant; both jobs 
being under the char^ of Horace M. Stone, general superintendent 
of defendant. 

Deceased, a bridge carpenter, was employed as a foreman of the work 
being done near the pump bouse, and in the alisence of Stone, had full 
charge of all work back of the pile-driver. Belknap was apparently a 
very efficient foreman and was given large discretionary powers in the 
performance of the work and in employing men to do that work. While 
Stone occasionally inspected the work under Belknap's direction, he 
spent but very little time there and although he made some suggestions 
as to the manner in which the work should be performed, these sug- 
gestions were not mandatory and, as Stone testified, "Belknap had full 
authority in my (Stone's) absence to use his own judgment." 

Under its contract, the Railroad Company was to furnish all the piles 
to be used in the work and was to deliver the same at such points as best 
suited the convenience of the defendant. At first the piles were loaded 
into a flatcar by the railroad company and hauled to a point opposite 
to the work. The stakes were then knocked out of the cars and the 
piles allowed to roll haphazard down the embankment, where they were 
loaded into wagons by the defendant and hauled to the place where they 
were to be used. The unloading was in charge of Greeks, in the employ 
of the railroad company, who w(«ild get under the car, knock out the 
stakes and take a chance of getting away before the piles rolled from 
the cars. No effort was made to see whether or not there was any one 
at the bottom of the embankment or to direct the course of the piles. 
Owing to the careless methods used by the railroad company in unload- 
ing, the men engaged in the unloading and the men at the bottom of 
the embankment were subjected to grave risks to life and limb. In 
addition to the danger to life, the trestle work being done by defendant 
was liable to be damaged by the piles rolling against it. 

Defendant made several protests to the railroad company, all of which 
were ignored by the railroad company and the unloading continued in 
the same manner. Finally it was agreed between the railroad company 
and the defendant that the railroad company would build a track out 
to the trestle, deliver the cars there and that the actual unloading should 



,Goo'^lc 



84 EMPWYEBS' LIABII.TTY ACT DECISIONS, 

then be takeu over by defendant. Although this unloading would cost 
the defendant from three to four hundred dollars additional, defendant 
agreed to do it in order to avoid the dangers above mentioned. 

Stone and Belknap discussed tlie manner in which the unloading 
should be done and Stone roughly designed and instructed Belknap to 
build a landing upon which the piles were to be unloaded from the 
car^, with two hinged skids leading from the landing up to and resting 
upon the ear so that the piles eoiuM roll down the skids to the landing 
and could be prevented from rolling back under the car and endanger- 
ing the life of the man who drove out the stakes. At the same time 
Stone suggested the use of ropes to assist in lowering the piles from 
the ears and to keep them from rolling off before the men were out of 
the way. 

In unloading the first ear upon the new landing, one of the men 
holding a line slacked away before the other and the piles went down 
end first, some being caught in the bight of the other rope only \o be 
extricated with difficulty. In attempting to unload a second car one 
of the ropes broke and the unloading was attendpd with danger. 
Belknap apparently considered that the hinged skids were a sufficient 
protection and the ropes were useless. A few days before the accident 
which caused Belknap's death, one of the ski<Is was broken and a day 
or two later the other skid was torn from its place, but ties were sub- 
stitnted for the skids by being placed with one end against the platform 
and the other against the oar. These skids were not replaced until after 
the accident. Stone testified that the ropes were not used after the 
accident and that no attempt was being made to enforce their use. 

For some reason the railroad company was very anxious to deliver 
all the piles on hand and to get them unloaded from the ear.s. Although 
the landing was overloaded with piles, and although Belknap had 
already notified the railniad company not to send out any more ears 
and had said that he would not unload any more until those on the 
platform had been hauled away, his notification was disregarded and 
the railroad company on Sunday, contrary to instrnctions, hauled and 
imloaded two cars, thereby blocking the whole landing so that the skids 
could not be repaired and nothing coulil be used in their place. 

When Belknap went to work on Wednesday morning there was an- 
other loaded car at the landing. In view of the fact that the platform 
was crowded by the pile^ alr<>ady unloaded, there does not seem to be 
any particular reason for the immediate unloading of the car, still he 
undertook the unloading and it was while unloiading that he was killed. 
It appears that he was standing on the piles, at the side of the cars, 
a.ssisting in unloading thcni and that when the piles started to roll 
from the car he was unable to get out of the way and was crushed to 
death. 



D.gitizecbyG00glc 



LIABILITY ACT DECISIONS. 85 

The evidence introduced would tend to show that if the suggestions 
made by Stone had been followed, that is, if the hiDged skids had been 
in place at the time of the accident or if the rope had been used in 
unloading, the accident would not have occurred, and the question to 
be determined is as to whether or not the unloading of the car without 
the use of the skids or rope was such wilful misconduct on the part 
of deceased as to defeat the right to compensation; for under the pro- 
visions of subdivision (3) of section 3, neither the injured employee 
nor his dependents are entitled to compensation when the injury is 
"caused by the wilful misconduct of the employee." 

No general rule of law can be laid down to determine just what con- 
stitutes wilful misconduct. The question is one of fact and must be 
determined upon the facts presented in each particular ease. An exam- 
ination of the reported English cases will show that under what appears 
to be identical facts, different rulings have been made by the trial courts 
and that, in only one case has an appeal been successful where the trial 
court found that the accident was not caused by misconduct. There- 
fore, while the opinions of the appellate courts are of assistance in 
determining the general principles to be followed in considering the 
facts, the facts reported can not be relied upon as a precedent to be 
followed. 

"Wilful miscoffiduct " on the part of the employee is a matter of 
defense to the employer and when he relies upon this defense the 
burden of proof is upon him to show (1) that the injured person was 
guilty of misconduct, (2) that such misconduct was wilful, and (3} 
that the injury was caused by the wilful misconduct. (Johnson vs. 
Marshall, Sons & Co., Ltd.. 8 W. C. C. 10; Bist vs. London, etc., Ry. Co., 
9 W. C. C. 19.) In these cases the court points out that tlie ccanpen- 
sation act is a remedial act, and like such acts, should be liberally 
construed. 

The word "wilful" means that the "misconduct" must be inten- 
tional, i. e., deliberate; there mast be an exercise of the will, as opposed 
to accident, negligence, inadvertence, a thoughtless act on the spur of 
the moment or an error in judgment. The mi.'iconducf, not the conduct, 
must be wilful. 

In the following cases the injured employee was held to be not charge- 
able with wilful misconduct; Where a boy on sudden impulse reached 
across a circular saw contrary to ordiTs (Bffks vs. Kynochs, Ltd., 4 
W. CC, 14); where miners, having propped up a mine in accordance 
with directions, removed the projis to another position, such removal 
being necessary in their judgment in order to continue the work (Ktim- 
boll vs. The Numii'ry ColUvr Co., 1 W. C. C. 28) ; using a hoist contrary 
to a notice (Johnson vs. Marshall, .siiiira) ■ disregarding a warning 



86 EMPrx)VKHs' LIAHILITY ACT DECISIONS, 

{Hrrs vs. Powell etc. Coal Co., 4 W. C. C. 17, John vs. Albion Coal Co., 
4 W.C.C. 15). 

The deliberate and intentional disobedience or violation of an express 
order, rule or law, framed for the express purpose of preventing aeei- 
dente, is usually held to be wilful miseonduet and to defeat the right 
to compensation if it is the proximate cause of the injury. In this 
connection it hardly seems necessary' to state that any such order must 
be made with the intent that it he followed and enforced and that an 
employer should not be permitted to escape from liability by making an 
order or rule merely to evade responsibility and without any intent 
to enforce it. 

If the employee is vested with discretionary powers to determine the 
manner in which the work in which he is engaged shall be performed, 
and is expected to use his own judgment as to the necessity of doing 
such work in a particular way, it seems obvious that he can not be 
charged with wilful misconduct in the event he does not at all times 
follow the suggestions and general directions given by the employer. 

A. J. Mervy, the president of the defendant corporation, testified r 
"Mr. Stone was our general .superintendent . . . He had full authority 
... I talked over the general method of unloading with him and said 
to take it over if he could make it safe. I told him to use his best 
judgment ... I did not give Belknap any orders." 

Stone testified ; " I talked the method of unloading over with Belknap 
and the necessitj' of using every precauti«n to save life . , . Later 
iastructed him to build platform with skids and explained the use of 
ropea . . , The method I suggested was safe . . . The present 
foreman does not want to use ropes and does not use them . . . The 
orders to use ropes are not now enforced. Belknap did not always 
follow directions ... I try to overlook failure to obey orders. What 
I am looking for is n«ults . . , Belknap should not have unloaded tha-t 
car until the piles on the platform had been hauled away and the 
skids fixed . . . Belknap had full authority in my absence to use bis 
judgment . . . He was in full charge and had absolute authority to do 
the job as he saw fit." 

We are of the opinion that no express or mandatory orders were 
given to Belknap by Stone, or by anyone else in authority, as to the 
manner in which the piling should be unloaded, but that Stone did 
make certain su^estions and that Belknap had full authority in the 
exercise of his discretion, cither to follow or reject the suggestions 
made; that the use of the rupe in unloading was discontinued by 
Belknap because, in his opinion, it was not practicable and that he had 
full authority so to do; that he believed that his obligation to his 
employers and the necessity of securing the "resultji" demanded by 



1,700 byGoOt^lc 



employers' liability act decisions. 87 

Stone, required him to unload the last car at the time it was unloaded 
and despite the fact that the platform was then overloaded and that 
the skids were broken and could not be repaired until the piles were 
removed from the platform. 

Under such circumstances it can not be said that in unloading the 
last car, Belknap intentionally or deliberately disregarded or disobeyed 
any order or instructions given to him; the most that can be said is 
that he erred in judgment and was perhaps negligent, but as we have 
pointed out, tbis does not constitute wilful miseoinduct within the 
meaning of the act. 

In passing we wish to point out that the wilful disobedience of an 
order, made for the protection of the injured employee, even though 
such disobedience is for the purpcee of securing "results," will never- 
theless constitute wilful misconduct unless it further appears that tbis 
disobedience is condoned by the employer. 

For the reasons stated we are of the opinion that the applicant 
should be awarded the compensation fixed. 

A. J. Pn,LSBUBY, 

Willis I. Morrison, 
Members. 

DISSENTING OPINION, 
My signature is withheld from the opinion because I dissent from 
the last paragraph but one, which professes to outline what shall con- 
stitute wilful misconduct. This is a delicate subject to judge. The 
English decisions vary according to the evidence and circumstances, 
and I believe it is a mistake to attempt to take any definite position 
ahead of a controversy. In addition, if there should he changes in the 
personnel of the membership of the Industrial Accident Board, it 
might be possible that a different view would be taken. I think it 
unwise to define a policy that can not be binding on our successors. The 
expression that the "disobedience is condoned by the employer" opens 
up avenues that mean a very great deal to the administration of work- 
men's compensation. As long as I remain a member of this Board I 
prefer to pass on a controversy after hearing the employer and employee 
each present his side, and experience shows such a variance of facts, 
evidence and surrounding circnmstanees t;overning contested claims that 
1 prefer not to sign the attached opinion for the reason here given. 
Will J, French, 

Member. 



D.gitizecbyG00glc 



88 EMPLOYERS LIABILITY ACT nECIBIONS. 

(No. 27— May 27, 1913.) 

(Chapter 399, Laws 1911.) 

MRS. ALEC (RHODA) YOUNG, ApplKant. vs. NORTHERN CALIFORNIA 
POWER COMPANY (a oobpob.*tion ) . Defendant. 

AccmeNT— Dbfinition — Death dy Exposuhe.— It is not possible to define the word 
"accident" either Id a legal or popular sense. Where an employee was frozen 
to death while perfonning service Krowbg out of and incidental to bis employ- 
ment and WHS acting within the line of his duty or course of bis employment as 
siicb, and the nature of his emplojment and his duties in connection therewith 
carried with them greater e);posure and the necessity of greater exposnre to risk 
than would ordinarily be the case with persons not so employed in the zone of 
severe elemental disturbances, there is shown a direct connection between the 
death of snch employee and tlie ecDploymcnt in which he ivas engased, and bjs 
dependent is entitled to death benefits as for HCcidentHl death. 

Scope of Emplotment— Line of DcTV.^Where an employee is employed by the 
month and is subject to call in an emergency, the fact that he volunteers for 
emergency service, outside his regular worit, does not take him without the 
scope of bis employment so as to defeat the claim for deutb benefits, when, as 
here, he entered upon the performance of gnch service with the knowIcdi!e and 
consent of his KUperior. whose duty it was to localo trouble on a transmission 
line and keep tlie line in working order and who had the authority to require 
the service. 

This is an application for death benefits by the widow of the deceased 
employee. The facts are stated in the opinion. Compensation was 
awarded in the sum of $3,060.00, 

Mrs. Alec (Rhoda) Young, in propria persona, for Applicant. 
W, W. A'o&if, president, for Defendant. 

The applicant herein claims compensation fur the death of her hus- 
band, Alec Young, who was frozen to death in a snow storm, in Shasta 
County, California, on the lith day of January, li!13. For two years 
prior to his death, yoiiiip; was emi)lo,\ed b,v defendant, the Northern 
California Power Company, at its sub-station at Keunett, Shasta County. 

Oil January 13. 1913, then' was a severe snow storm on the mountains, 
over which the defendant's Clailstone power line passes. This line 
was in charge of John L. MeGinnis, district sii|)eriiitendcnt of the 
Kennett district, and it was part of his duty to wc that the line was 
k<'pt in working order. 

Short eircuits, caused by the storm, kept blowing out fuses in the 
sub-statiou in charge of deceii-sed, George Whitson, a brother-iii-law 
of deceased, and a lineman in the employ of defendant, was in the sub- 
station with deceased on the afternoon of January 13, 1913, and helped 
deceased replace the fnses that were blown out. Anticipating an order 
to go out along the line in search of the cause of the difficulty, Whitson, 
who had previously taken others on similar trips, asked Yonng to 
accompany him. Young said: "I don't know. I will see McGinnis." 

About 3 o'clock that afternoon ]\IeGinnis telephoned to \Vhitson and 
ordered him out to locate the diftieulty. Whitson asked to have some 



employers' liability .act decisions, 89 

one go with him, stating that it was a pretty bad stonn and that he 
might have to go fifteen or sixteen miles. When McGinnis replied 
that he did not know whom to send, Whitson told- him that Tonng 
would go and that Young was then on his way to see McGinnis. 
MeGinuis did not say whether or not Young was to go, but did not 
offer any objections to his going. 

McGinnis testified as follows: 

"George Whitson has stated the conversation I bad with him over 
the telephone as it was. • * • Young came down and said to me 
that he was going out with George on the Gladstone line, lie asked 
me at what barn the horse was, and I told him what barn the horse 
was in. He said George wanted some money. I told him he didn't 
need any money, as the company's credit was good over there, and he 
went away after the horse. That was all the conversation I had with 
him. • • • He had worked on the line before he went into the 
sub-station. He wa.s an experieneed lineman, lie had worked on all 
the lines in the district. * • * He had worked in the sub-station 
about two years. He was a reliable man. He was about going off 
his shift at the sub-station at the time and the other man was coining 
en. • • • We do send two together sometimes when we know 
what there is to do. Roy Hastings (the man who accompanied Whitson 
on a former trip) was surely paid if he went out to work. He didn't 
go for nothing. The company pays for any service rendered. By 
going out on this work Alee Yonng did not forfeit the job he had. Men 
in our employ are subject to call in an emergency when off their n^gular 
shifts. Whitson had talked with me over flie phone before Alec came 
down. I knew what it was all aI>out and knew that Alec was going 
out. It did not surprise me any to have Alec tell me that he was going, 
but I did not tell him to go. I did not order him out. 1 merely knew 
that he was going and that it was all right. We have many such storms 
in the mountains. I do not think this one was worse than others." 

After getting the horses and some snppliiw, including a quart bottle 
of whiskey, which Whitson testified he pracured at Young's sups^estion, 
Whitson and Young left Kennett at about 4:30. Whit.son testified 
that they did not find any trouble on the line between Kennett and 
the mine, a distance of seven miles, which they reached after dark, and 
that each took a drink apiece going up the mountain and another drink 
affer going about two miles. They spent the night at the mine, leaving 
the whiskey in the sack with a portable telephone, which was carried 
jis part of the equipment. On the following morning the storm hiid 
abated, and the two men prepared to ctmtinue their search for the 
trouble, but were able to find only one pair of snowsboes. 

Whitson testified: "I went to telephone to the sub-station. I told 
them I could not find an extra pair of web suowshoes. MB,^IcGinn^8 



90 employers' liability act decisions. 

told me over the telephone that they were at the sawmill, a mile above 
Balaklala. I told Yoiin^ to walk up the road to the sawmill and get 
the web shoes and put Ihem on and then come over the snow and meet 
me where the Stowe road crosses the power line. Mr. MeGinnis knew 
that Young was with me. I told Young I would go up along the power 
line and meet him there at the crossing of the Stowe road. He went 
up the road and I weut up the power line, and we met there as agreed. 
Young carried the whiskey in the sack. We left Balaklala at B o'clock. 
It took us some time to find the things we needed and get away. We 
met at the crossing on the Stowe road about 11 o'clock. Young did 
not show any indication of having drunk any of the whiskey. I took 
a drink before breakfast, but he did not. I knew liow much whiskey 
there was in the bottle after I took a drink and knew that he did not 
drink any more out of the bottle. lie drank none at all on the 14th. 
Once when he wanted a drink I said 'No, not until we get to the top of 
the hill and start down. You can take a drink when we get there.' 
We would then be going down hill toward Gladstone. It was one 
((uarter to one half a mile up to the top of the hill. The snow was very 
deep and soft and Young complained of being very tired and coJd 
inside. He had had to wallow through .snow three feet deep all of the 
way up to the mill. From there he came over on the sriowshoes. We 
both had suowshoes from there on. .We left the horses at the Balaklala 
mine. He said 'all right' as to whiskey, and we went on one quarter to 
cue half mile. He kept lagging behind. ■ • • i waited until he 
caught up. He said: 'I can't keep those webs tied on my feet. They 
keep slipping around and I am getting tired and hungry.' " 

Whitson thought that he had located the break, so he took the portable 
telephone with him and left Young in the shelter of a tree after instmet- 
ing him to keep walking. Being unable to put the line in commission, 
r.fter al>out an hour he returned to find Young nearly frozen to death. 
Although Young had broken the whiskey bottle in the endeavor to get 
a drink, he had apparently been unable to accomplish his purpose, for 
as Whitson testified, "The neck of the Iwttle had heen broken but the 
cork was in tight. No whiskey had been drunk since I took a drink 
before breakfast." Whitson tried to pet Young started, and after a 
little while tried unsucce-ssfnlly to build a fire. As he testifies: "All the 
matches went bad. He began to lose his mind ahout that time. I told 
him he had got to rttW the same a.s before, that it was his only chance 
he had to get out of here. I rolled him forty or (ifty feet toward 
Balaklala. It was getting awfully dark. I got him up on his feet 
and pulled out his watch. It was either ten minutes tQ two, or after two. 
I put the watch back in his pocket. Theji the bli7.;!ard hit us. Wind, 
ice aud snow came upon us with great force. I tried to hold him to me, 



C^nOO^^Ic 



EMPLOYKUa' LfAUILITY ACT DKCIHIONS. 91 

but it was all that I could do to stand oa my own feet, but hn could 
not hang on to me for his hands were useless. I held on to him. He 
kept saying to me, 'George, you are wrong. You are going the wrong 
way.' I told him if he would listen to me I would get him out of 
there, but he pnlled loose from me during the blizzard. I thought he 
fell at my feet. I braced myself on the up hill side. I suppose the 
blizzard lasted no longer than four or five minutes. I don't know for 
certain, but it seemed very much longer. When it cleared I saw that 
lie was gone. ' ' 

Being unable to find Young and being nearly frozen to death, 
Whitson started back to the mine for assistance, which he succeeded 
in reaching only after great effort. A searching party was immediately 
sent out, but was unable to locate Young that night. Next morning 
the body was found some four hundred or five hundred feet down the 
mountain. 

It is admitted that at the time of the death both the employer and 
employee were subject to the compensation provisions of the act. The 
claim for compensation is resisted by defendant upon the following 
grounds: 

(1) That when Young went out along the power line with Whitson 
he did so as a volunteer, and that, therefore, at the time of his death, 
he was not performing service growing out of or incidental to his 
employment, or acting within the line of his duty or course of his 
employment. 

(2) That the death of Young was not proximately caused by accident. 

(3) That the accident, if any, did not arise out of and in the course 
of the employment. 

(4) That the death was caused by the wilful misconduct of deceased, 
in that it was brought about through his intoxication. 

Liability for compensation is fixed by section 3 of the act as follows: 

"Liability for the compensation hereinafter provided for, in liou 
of any other liability whatsoever, shall, without regard to negli- 
gence, exist against an employer for any personal injury accident- 
ally 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 lime of the accident, Itoth the employer and 
employee ore subject to the provisions of this act according to the 
succeeding section hereof. 

"(2) Where, at the time of the accident, the employee is per- 
forming service growing ont of and incidental to his employment 
and is acting within the line of his duty or course of his employ- 
ment as such. 

" (3) Where the injury is approximately cau.sed bv accident, 
either with or without negligence, and is not so caused by the wilful 
misconduct of the employee. " 



92 employers' LrAlllI.ITY ACT 

In McAiiii vs. City Elrctnc Compauii the Board pointed out that 
the burden of proof is upon the person claiming: compensation to show 
that the conditions of compensation exist, and that when that proof has 
been made, the elairaant is entitled to compensation unless the employer 
shall affirmatively show other facts which would defeat the right to 
compensation. 

1. In view of the testimony of Whitson and McOinnis, above quoted, 
it seems clear that at the time of his death Young was performing service 
KHJwinp; out of and incidental to his employment and was acting within 
the line of his duty and course of his employment. The mere fact that 
he volunteered to accompany Whitson, and w;as perhaps not expressly 
ordered so to do, does not necessarily mean that he was acting outside 
of the s<^ope of his employment. Young was employed by the month 
and was subject to call in an emergency when off his regular duty. It 
was cnstomarj- to send out two men when conditions demanded it, and 
iu the opinion of Whitson the condition of the weather and the work 
to be done demanded that he be accompanied by another man. In this 
McGinnis apparently concurred, although he did not know whom to 
send until Young volunteered. When Young volunteered and AIcGinnis 
knew he was going, he gave him dircf-tions as to what to do and thought 
that it was all right for him to go and unquestionably acquiesced in 
his going. Young's wages would have been paid while he waa away. 
Under such circumstances the emplo.yment conld not be subject \a 
fpiestion any more than it could be if McOinnis had expressly ordered 
Young to accompany Whitson. MeOinnis's nulhority to give such an 
order is not disputed. 

2. It seems equally clear that the death was proximately caused by 
accident. There is perhaps no word used in the compensation acts 
which had ln'cn so often defined as the word "accident." After having 
attached all shades of meaning to this word, thereby adding to the 
difficulties of construction, all prior English deiinitions were swept away 
by the house of lords by their decision in Podon vs. Tlwrlcy & Company 
(1903), ,5 W. C. C. 1, overruling Ihnsay vs. ^\'hitc (WOO). 2 W. C. C. 1, 
as well as the similar case of ^ya^kl'r vs. LilUshaU Coal Company (1900), 
£ W. C. C 7, which previously had been regarded as finally defining the 
word "accident" and which held that the word involved the idea of 
homcthing "fortuitous and unexpecled." 

When Fiiiton vs. 7'li<'rl<y it i'onijxiny (siiiira) was before the hou^e 
of lord.s. Lord JlacNinightcm. after poinling out the errors in the earlier 
definitions, said, "I come, tlierefore, to the conclusion that the expres- 
sion 'accident' is ascd 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. It would serve no useful purpose to review the 
English cases on the subject." 



employers' liability act nECISIONS. 93 

We are of the opinion that this interpretation should be followed. 
We still find, however, that we are confronted by certain difficulties 
when we try precisely to define the word "accident." Among "popular 
and ordinary" definitions wc find the following: "Anything that hap- 
pens by chance; a casualty or a mishap." Wo find that a "casualty" 
is something which " happens without design ; a mishap or a misfortune 
which in turn is an evil accident, a mishap or a mischance." We 
further find that the words "accident," "casualty" and "chance" are 
all derived from the Latin word "cado," the first with a prefix added 
and the latter two without. Having reached this point we come to 
the conclusion that it is impossible to define the word "accident" either 
in a legal or the popular sense. 

There is no question in our minds, however, but that the manner in 
which Young came to his death is an accident within the "popular and 
ordinary" meaning of the word. 

3. It will he noted that nowhere in this act is there any specific provi- 
sion which limits the right to compensation to accidents which arise oiit 
of and in the course of the employment. The only specific provision 
bearing upon this subject is that the employer shall be liable only 
"where, at the time of the accident, the employee is performing service 
growing out of and incidental to his employment and is acting within 
the line of his duty or course of his employment as such." One theorj' 
of compensation acts is that the cost of industrial accidents is a proper 
charge against production and should be compensated by the employer, 
who alone can shift this burden to the product where it belongs. It 
seems apparent that only those accidents arising out of the employmeut. 
I. f ., accidents of employment, are properly chargeable against produc- 
tion. Compensation acts are remedial acts and under the rules of con- 
struction, acts of this character must always be liberally construed to 
carry into effect their objects and to promote justice. Bearing in mind 
the theorj' of compensation and the rule of construction to he applied, 
one is forced to the concbLsion that this act should be limited in its 
application to accidents of employment and that compensation should 
not be allowed for any injury unless it is shown that the injury was 
caused by accident arising both "out of and in the course of employ- 
ment. ' ' 

It is clear that this particular accident arose in the conrsc of the 
employment, for as we have held, at the time of the accident deceased 
was acting within the scope of his employment. 

It is sometimes extremely difficult to determine whether or not the 
ikccidental injury complained of arose out of the emphiyment, and par- 
ticularly so when caused by act of God or the forces of nature. In 
Warner vs. Cmichman (1910), 4 1!, W. C. C, 32. affirmi-d by house of 
lords (1911), 5 B. W. C. C, 177, a journeyman baker, whose duty, 

Coo'^lc 



94 EMPLOYEliS' LIABILITY AOT DECISIONS. 

inter alia, it was to drive his master's cart and deliver bread, claimed 
compensation for a frost bitten hand. The trial court found that there 
vas 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, if the occurrence was an acci- 
dent, it did not arise out of the employment, and upon this ground 
denied compensation. The trial court was sustained by the court of 
appeal (Fletcher Moulton. L. J., disspntinsr) and by the House of Lords. 
The rule was laid down for the House of Lords by Earl Lort^burn as 
lollow.s; 

"My Lords, these cases arc difficult enough, and we are apt sometimes 
to forget that what is decided in the county court is much more often a 
(luestion of fact than a question of law; and if it is a question of fiict, 
then it is for the county court judRc to decide it. 

"There can not be imagined a more difficult part of this difficult act 
to determine than that which relates to injuries by accident arising out 
of and in the course of a man's employment. In the present case the 
only question decided in the court of appeal was that they would not 
disturb the finding of the learned county court judge upon the question 
of whether this injury by accident arose out of the employment. 

"Now, Fletcher Moulton. L. J., who was the judge in the minority 
in the court of appeal, stated the law fairly enough, or rather stated 
what was the point of view with which a judge ought to approach cases 
of this kind. He said (1911, 1 K. B. at p. ^57; 4 B. W. C. C. at p. 38): 
'It is true that when we deal with the effect of natural causes aflfecting 
a considerable area, such as severe weather, we are entitled and bound 
to consider whether the accident arose out of the employment, or was 
merely a eonsequcnce of the severity of the weather, to which persons 
in the locality, and whether so employed or not, were equally liable. 
If it is the latter it does not arise "out of the employment" because the 
man i.s not specially aPforted iiy the severity of the weather by reason of 
his employment. ' • • • 

"In substance the learned county court judge seems to me to have 
found that in this case the mEtn was not specially affected by the 
severity of the weather by reason of his employment. • * • If so, 
I see nothing in the evidence which disentitled him to find that fact, 
and being so found as a fact, it is binding." 

In the following cases the accident was held to have arisen out of 
the employment and compensation allowed upon the ground that the 
character of the employment could fairly be said to have created or 
intensifi<'d the risk that arose from an act of God or natural causes by 
exposing the workman to some risk greater than that ordinarily incurred 
by other persons at the same time, to wit: 



D.gitizecbyG00glc 



employers' liability act decisions. 95 

Where a workman was stniek by lightning while working on a scaf- 
fold. {Andrew vs. Failsu-orth, etc. (1904), 6 W. C. C, 11.) 

Where a seaman in the tropics abstained a sunstroke while painting 
the side of a ship, the heat having been intensified by the reflection 
from the side of the vessel. (Morgan vs. Owners of 8. 8. "Zenaida" 
(1909), 2 B. W. C. C, 19.) 

Where a seaman in the tropics sustained a sunstroke by reason of 
the fact that he was compelled to stand on the steel deck of the ship 
without shelter for five hours. {Davies vs. Gilepsie (1911), 28 T. L. 
R., 11.) 

Where a workman employed in a mill race contracted inflammation 
of the kidnejs by reason of the fact that hia work required him to 
stand up to his knees in water. (Sheeran vs. Clayton £ Co., Ltd. 
{1910),4B. W. C. C, 583.) 

In the following cases compensation was denied upon the ground that 
the risk was not created nor intensified by the employment r 

A roadman struck by lightning while working on the road. {Kelly vs. 
Kerry County Council (1908), 1 B. W. C. C, 194.) 

A seaman frost-bitten while working during the winter on his ship. 
(Karemaker vs. Owners of 8. 8. Corsican (1911), 4 B. W.C.C., 295.) 

As is stated by the house of lords in Warner vs. Couchman (sitpra), 
the question is a question of fact to be determined by the trial court and 
its finding will not ordinarily be disturbed. 

In our opinion the character of the employment in which Young was 
engaged at the time of hia death may fairly be said to have created or 
intensified the risk, for it carried with it far greater exposure than 
would ordinarily be the ca,se where there was no such employment, and 
it is very easy in this case to show the direct connection between the 
death of Young and the employment in which he was engaged. It will 
be seen from the above eases that the time taken for the accident to 
mature is immaterial. 

4. When the claimant has proved that the foregoing conditions of 
compensation exist, and the employer as a defense to the claim relies 
upon "the wilful misconduct of the employee," as we held in Belknap 
vs. Mervy Elwell Company, the burden of proof is then upon him (the 
employer) to show (1) that the injured person was guilty of miscon- 
duct, (2) that such misconduct was wilful, and (3) that the injury 
was caused by the wilful conduct. 

Unquestionably, intoxication and being unfit to work is wilful mis- 
conduct within the meaning of the act. {Burrell vs. Avis (1898), 
1 W. C. C, 129; Bradley vs. 8alt Vnion, Ltd. (1906), 9 W. C. C, 31.) 

There is here, however, not even a scintilla of evidence to prove that 
the death of Young was caused by intoxication. ^IcGinnis testified 



::GoO'^lc 



ye EMPLOYERS LIABILITY ACT DECISIONS, 

tliat Young was a reliable man, while Whitson testified positively that 
Young had not had anything to drink on the day of hia death, and that 
although Whitson had taken a drink before breakfast. Young had not. 
Whitson 's testiraonj- is further substantiated by the fact that the two 
men had only one quart bottle of whiskey between them and that a 
considerable portion of this was found by the men who discovered the 
body. The fact that whiskey was taken on the trip and that when 
Young was nearly frozen he asked for a drink does not even tend to 
show that he was intoxicated. While it is true that Young showed 
more fatigue than Whitson, we believe this fact was not due to intoxiea- 
tion on Ills part, but rather to the fact that he was compelled to go a 
considerable distance through the soft snow without snowshoes and that 
he apparently had great difficulty in using the snowshoes when he did 
finally procure them, and also that by reason of his employment during 
the last two years he was not hardened to a trip such as this. 

For the reasons above stated, we are of the opinion that the applicant, 
Mrs. Alec (Rhoda) Young, is entitled to have awarded to her the com- 
pensation fixed. 

A. J. PlLLSBUBY, 

Will J. French, 
Wnj.Ls I. Morrison, 
Members. 



(No. 26— May 28, lOia.) 

(CliHpter 399, Lqws 1911.) 



lUB LITY— OfFER AND UeKITSAL OF EMPLOTNBNT. Tbo 

n. m uffcrliiR from a temporary imrtinl dianbility to accept 

It ff b h s employer at nnliiccd wairi's, does not prejudice the 

compo sn ut may be taken into conaiilenition in connection with 

ro 0(2) of chapter .'litt) of the I.awa of 1011, to determine 

in ojien labor niarki?!. 

RA P D lity^Mali NcEBiNU. — Where tbe evidence shows the 

injiiri to be apparently trivial and ohsfrvatioii of the conduct and bearing of tlie 

m ed bo examinations and 



Th an ppl t f p t f J y to the leg of 

tl ipl nt II f I 1 P An award was 

1 n h f1i2+4J n d f 1 ntl dp dtl sum o£ *3!*.10. 

J 00 ( I 111 f \pf 1 t 

I illsbtiry, MatlisiiH d- t>utri>, attorne.vs, for Defendant. 



D.gitizecbyG00glc 



employers' liability act decisions. 97 

On the 27th of Detrember, 1912, Joao ftoncalves, while in the employ 
of the Standard Oil Company at Richmond, sustained an injury to his 
light leg between the Itnee and ankle by getting the same jammed 
between a rolling barrel of asphaltum and the post of an elevator. 
X-ray plates, taken at different times and from different angles, show 
conclusively that there was no injury whatever to the bone and that 
there was no abrasion of the skin, although the flesh was considerably 
bniised. 

The applicant was disabled by the injury for several days, but at no 
time was he forced to take to his bed or to nse a eruteh or cane in 
v.alking. By the middle of January he wa-s able to do light work 
which did not require him to stand much upon his feet, but, for reasons 
best known to himself, he refused to take such work, except for a few 
hours one day. The compensation act does not, in eases of partial dis- 
ability, require that an injured employee accept light work offered him 
by his employer at such wages as the employer may see fit to offer, on 
pain of forfeiture of his right to compensation. The employer may die 
or retire from business during the eontinuanee of such partial dis- 
ability or the injured emplojee may wish to go elsewhere, or service 
\»ith that particular employer may be distasteful to him. He may 
decline such proffered employment for any reason or for no reason, but 
if he does so decline, the Industrial Accident Board, in determining the 
amount of compensation due him, must have recourse to the provision 
in subdivision (2) of section 9 of the act to find an authoritative measure 
for the loss of earning power in such eases. This provision fixes such 
weekly loss in wages at "the difference between the average weekly 
earnings of the injured employee (before he was hurt) and the weekly 
amount which the injured employee, in the exercise of reasonable dili- 
gence, will probably be able to earn (in an open labor market), the same 
to be fixed as of the time of the accident, but to be determined in view 
of the nature and extent of the injury." This loss, in the ease of this 
applicant, we fix at $3.00 per week, sixty-five per cent of which equals 
$1.95 per week, being what, had applieant u.sed reasonable diligence in 
Ni-eking such employment, he might he expected to have obtained. 

Two reputable physicians of Oakland, besides the defendant's attend- 
ing physician. Dr, Abbott, affirm that on the 15th of February there 
was nothing the matter with applicant's leg that need have disabled him 
at all. Nevertheless, despite the affidavits and testimony of reputable 
physicians, corroborated by other evidence as to the conduct and l)ear- 
ing of the applicant while under observation, unknown to himself, appli- 
cant has pretended to l>e seriously injured and tn entertain great fear 
li-st his leg never recover its usefulness. Whether or not this pretense 
of serious injurj- be feigned or the result of a morbid dwelling of the 



Goo'^ Ic 



98 employees' liability act decisions. 

mind upon his injury, tlie conclusion is irresistible that his demand for 
further compfinsation is without merit. 

In short, the case under consideration belongs to that class of malin- 
gering or simulation which causes very great concern to those who are 
skeptical in regard to the merits of compensation as a system for dealing 
with industrial injuries. Such cases are to compensation what arson 
is to fire insurance and fraud to life insurance. They must be dealt 
with sternly and uncompromisingly, else they may bring into disrepute 
an institution which, otherwise, yields great hope for dealing effectively 
with a serious social burden. It is improbable that one injured person 
in the hundred will, under compensation, seek to gain benefits to which 
he is not clearly entitled, but if the hundredth person were permitted 
to sueeeed in such an effort he might work vast injury to the ninety and 
nine who have made their claims in all good conscience and sound reason. 
It will bo the constant endeavor of the Industrial Accident Board to 
(safeguard employers and the compensation system from injury through 
this cause, whether the simulation proceed from a fraudulent intent to 
deceive or from hypochondria or traumatic neurosis. This the Indus- 
<rial Accident Board will do, as much in the interests of those hereafter 
to be compensated as in the interests of those from whom compensation 
to injured workmen may become due. 

A. J. Pn,l,SBDEY, 

Wn,L J. French, 
Members. 



(No. 28— May 28, 1313.) 
(Chapter 399. Laws 1911.) 



CoMPESSATlO-f I/iflS OF EABNINQ POWEB^TeMPOBABT DiSABir.nT— SURQICAI, 

Opbbation. — It appeared that the applicant had been seriously but 'not per- 
manentlr disabled in au explosion, and that hia injuries had been almost wbolly 
cured and could be wholly cured by a alight and inexpensive operation. He had 
been generously Ireated by his onii>loyerB in Ihe matter of necessary medical and 
surgical treatment and compeniuitJOQ for temporary total disability. It was 
held that he bad not suffered a permanent loss of earning power, as deSned by 
chapter 390 of the Laws of 1911, and had been fully compensated for temporary 
total disability. 

This is an application for compensation for an accidental injury to 
the mouth and leg of the applicant suffered in an explosion of blasting 
powder. The facts are stated in the opinion. Full medical and surgical 
treatiiLi'ut having been furnished by the employer, and compensation 



D.gitizecbyG00glc 



EMPTX)YERe' I.IARILTTT ACT DECISIONS.. 9!) 

having been paid in a greater amount, namely, $46,75, than was found 
due, further relief was denied. 

Michael Baker, in propria persona, for Applicant. 
^Y. D. Tillotson, attorney, for Defendant. 

Michael Baker was working on the road for the Mount Shasta Power 
Company, a corporation, on September 17, 1912. Dynamite was used 
in blasting out a roadway. During the forenoon three holes had been 
drilled and charges fired, but only two of them had exploded, of which 
fact Baker was not cognizant. Toward evening two more holes were 
loaded and chaises exploded, whereupon Baker returned to the spot 
at the instant that the charge that had missed fire during the forcnoua 
exploded. He was blown some sixty feet down the hill and sastaincd 
painful injuries. One leg was wounded below the knee, five teeth were 
knocked out and his lower lip badly cut. 

Medieal and surgical attendance was at once furnished, the wounds 
soon healed and in three weeks Baker was back at his employment, not 
wholly recovered, but able to work. 

Subsequently he went to Redding, at the cost of the Mount Shasta 
Power Company, to replace the five teeth blown out, and had dental 
bridgework put in at a charge, to the employer, of sixty dollars ($60.00). 
The lip healed leaving a slight sear and some tenderness. 

The knee did not fare so well. The injured ti.ssue had sloughed off 
and scar tissue had taken its place, and this sear tissue was susceptible 
to injury. At times the knee was painful and caused Baker to limp. 
At Redding, Baker subjected himself to a medical examination at the 
hands of Dr, P. Stabel, who testified that the injury to the knee was 
easily and inexpensively remediable, that it would only be necessary 
lo remove the sear tissue and suture the healthy tissues together to 
remove the whole difficulty and make the leg as sound as ever within 
ten days after the operation. 

However, because the bridgework put in by the dentist was not as 
convenient as his own teL'th, and Weause tlie torn lip was tender to 
touch, and because the injured knee occasionally caused him discomfort. 
Baker demanded from the defendant corporation a further indemnity 
of one thousand two hundred doilare ($1,200.00) for permanent injuries 
sustained, which demand, being refused, the Board was called upon to 
determine the controversy. 

The compensation provi.sions of chapter 399 of the Laws of 1911 do 
not undertake to indemnify for pain or suffering or for any injury 
whatever unless such injury results in a disability to earn as unich as 
the injured person wius earning at the time of the injury in the employ- 
ii>ent in which he was engaged. Baker was unable to show that, juilgod 
by these standards, he had suffered any permanent loss of earning 



100 BMPLOTEHS' LTABILITT ACT DECISTONS. 

capacity. Judged by other standards, he might have been able to do so, 
but the statute rigidly limits the compensation for the loss of earning 
power to the difference between the wages which the injured employee 
was earning "in the employment in which he was working at the time 
of injury" and the wages "which the injured employee, in the exercise 
of reasonable diligence, will probably be able to earn, the same to be 
fixed as of the time of accident, but to be determined in view of the 
nature and extent of injury." It would, furthermore, be manifestly 
unjust to the employer to make him chargeable for a permanent dis- 
ability in a case, such as that of the injured knee of the applicant, where 
his own physician testifies that a speedy, inexpensive and complete cure 
of the difficulty may certainly be attained without risk and without 
need for employing more than a local anaasthetic. 

This board is clearly of the opinion that the treatment applicant 
Baker received at the hands of his employer, the Mount Shasta Power 
Company, was prompt and generous, and it should be clearly understood 
that, under the compensation provisions of this act, no indemnity is 
recoverable except where injuries, through accident, result in a loss of 
ability to earn, the same to be determined as of the time of the accident 
and in view of the nature of the employment in which the employee 
was engage<l when injured. 

A. J. PiLLSBURY, 

Will, J, French, 

Member It. 



(No. 24^-,Tune 18, IfllS.") 
(Chapter 399, Laws 1911.) 
rATRICK RUSSELL. Applicatit, vs. LACHMAN AND JACOBI (a 
Defendant. 
The above applicant was the father of James Russell, who was acci- 
dentally killed on January 17, 1912, while in the employment of the 
defendant corporation. The application was dated June 29, 1912, but 
wiis not filed until February 7, 1913. It was satisfactorily proved to 
the Industrial Accident Board that the applicant died on December 9, 
]!I12, and was not living at tlie time the application was filed. An order 
tiisinissing the application was acconlingly entered -Tune 18, 1913. 

Ira B. Cross. 
Hecrp.tary. 



D.gitizecbyG00glc 



employers' liability act DBCrSIONB. 101 

(No. 33— June 20, 1913.) 

(Chapter 399, Laws 1911.) 

RICHARD E. DWYER. Applioont, vs. GENERAL PETROLEUM COMPANY (a 
COBPOBATION ) , Defendant. 

Measuee of CoiiPENSATiON — ^PARTIAL DiSABiLiTT. — The putpose of the CorapenaB- 
tioD Act is to tide the injured iraTkaiaD over his period of adversity imtil he 
can re-establish a BelF'EUStaiaiag earning capacity ; its purpose is not to make 
such injured workman whoJe for all damage aullered. Although a severely 
sprained ankle may never wholly regain its lost Ktrength and power, compen- 
sation for tbe partial disability renultiag from such injury ia limited to the ]osa 
of wages, measured by the difference between the average weekly earnings of the 
injured employee in the employment in which he was working when injured and 
the weekly wages which such employee, "in the exercise of reasonable diligence," 
will probably be able to earn in view of the nature and extent of the injury. 

This is an application for cotnpeDsation for a sprained ankle and 
minor injuries. The facts are stated in the opinion. Compensation 
had been paid by the defendant in the sum of $181.20. Further com- 
pensation was awarded in the sura of $30.30. 

Richard E. Dwycr, in propria persona, for Applicant. 
Charles W. Slack and Chavncey S. Goodrich, for Defendant. 

Richard E. Dwyer entered the employment of the General Petroleum 
Company at its Bear Creek lease in Kern County, California, on the 
27th of August, 1912, as janitor of the bunkhouse, a portion of his duty 
being to attend to the superintendent '.s team. On the morning of the 
29th he hitched up the team and uudertook to drive it from the barn 
to the hitching rack. The team became fractious and started to run, and 
Dwyer, fearing for his life, climbed out to the rear of the buggy with 
the intent of jumping out. In some way his legs got caught between 
the axle and the axle braces and he was dragged some distance before 
he freed himself. 

As a result of this accident applicant sustained contusions upon both 
shins, and his left ankle was severely sprained, the ligaments or tendons 
being torn. Prompt medical and hospital treatment was had by appli- 
cant. Nevertheless he was totally disabled for a period of eleven 
weeks and partially disabled for seventeen weeks thereafter. 

Defendant paid Dwyer compensation in cash and in board, in the 
total sum of $181.20, but refused to pay further compensation on tlie 
ground that applicant's disability had ceased by December 1, 1912, 
Applicant contends that disability had not ceased on said date, but that, 
on the contrary, be will suffer disability during the remainder of his 
life as a result of such accident. 

It is a matter of common knowledge that a severely sprained ankle 
involving a tearing loose of the tendons, seldom or never wholly regains 
its former .strength and power of resistance to injury and that the 
e sustained by such an injury is very considerable, but the com- 



102 employers' liability act DEClaiONS. 

peosation act does not contemplate making an employee whole for all 
itamage suffered. Its aim is merely to tide the injured workman over 
his period of adversity until he can re-establish a self-sustaining earning 
capacity despite his maimed condition, and this purpose is justified by 
the fact that all injured workers are so tided over their respective 
periods of adversity without regard to the negligence of the injured 
person, provided that such negligence does not amount to wilful mis- 
conduct on his part. 

The power of the Industrial Accident Board in such cases is strictly 
limited by two coordinate provisions of the compensation act, subsec- 
tions (1) and (2) of section 9. Subsection (1) restricts the estimation 
of earning power to the employment in which the injured person was 
working at the time he sustained the injury, without regard to his 
earning power in some other occupation, and subsection (2) limits the 
loss of wage.s in cases of partial disability to the difference between the 
average weekly earnings of the injured employee in the employment in 
which he was working at such time and the weekly wages which such 
injured employee, "in the exercise of reasonable diligence," will prob- 
ably be able to earn in view of the nature and extent of the injury. 

Now applicant Dwyer was, at the time of the injury, whatever his 
earning capacity at other times and places may have been or otherwise 
might become, a janitor and hostler with a gross earning capacity of 
$20.77 per week, and the Board found in its findings of fact that, "in 
the exercise of reasonable diligence." he should, during the pendency of 
partial disability, have been able to earn an average weekly wage of 
$13.84, a difference of $6.98, and that 65 per cent of such difference is 
$4.50 per week. This was allowed for seventeen weeks, by the end of 
which time Dwyer had so far recovered as to l)e able to resume his 
former employment of janitor and hostler, and was thereafter able to 
earn as mnch as he had earned prior to the accident. Such being the 
fact, the inconvenience, or even loss, he may sustain for the rest of his 
life by reason of inability, on account of a weakened ankle, to climb 
hills or engage in athletic sporte is immaterial and can not be taken 
into consideration. The only loss for which compensation can be 
allowed is the loss in wage earning capacity. 

We go thus into particulars in this case for the reason that sprained 
ankles are many and the misapprehension very general as to what 
compensation undertakes to do by way of reparation for industrial 
injuries received. 



D.gitizecbyG00glc 



employers' liability act decisions. 10;J 

The defendant eorporatioD erred in dediictiog from the compensatiou 
allowed the applicant herein tlie sum of $1.C0 per month hospital dues 
for the three months during whinh compensation payments were made, 
unless with the express consent of applicant. No liens of any kind 
attaeh to compensation payments prior to their payment. 

A. J. PiLLSBURT, 

Will J. French, 
Willis I, Morrison, 

Members. 



(No. 41— June 20, 1913.) 
(Chapter 399, Lawn 1911.) 

BDWAKD L. NASH. Applicant, vs. GENERAL PETROLEUM COMPANY (a 
coBPOBATion ) , Defendant. 

AccincNT — FanxiMATB Cause — Cuain of Causation — Disease Resulting From 
Injury. — The word "approiimately," as used in section 3 (3) of chapter 
399 of the Laws of 1911, is to be construed as "proximately," aod where the 
employee suffered an accidental injury to hia Ipr, apparently trivial in itself, and 
infection followed, so that erysipelaa developed six days afterward, and there 
followed immediately tipon the cure of this disease ulcerated conditions upon the 
breaking: down of a' varicose vein in the injured leg, held, that there was DO new 
intervening cause of the disability, the chain of causation has no miasius link, 
and the injury was the proximate cause of the continuing disability. 

Accident — Notice. — The requireinents of section 10 of chapter 399 of the Ijiwa of 
1911 with reference to notice of accidental Injury are met when it appears tbnC 
within less than one week after such injury the employer furnished necessary 
medical and surgical treatment after a report of the accident and was not misted 
or prejudiced by the failure to give the formal written notice within thirty days, 
as provided in that section. 

This was an application for compensation on account of an injury 

to a leg and resulting erysipelas and varicose ulcers. The facts are 

stated in the opinion. Compensation was awarded in the sum i>f 

$108.70, covering the period of disability ensuing from all these causes. 

Edward L. Nash, in propria persona, for Applit-ant. 

E. L. Stockwell, for Defendant. 

Edward L. Nash, by occupation a pipe fitter and pipe liner, was, on 
the night of the 12th of March. 1913, in the employ of the General 
Petroleum Company and engaged in "firing" a pipe line in order to 
make the oil flow therein as it was disinclined to do so by reason of the 
eold. To this end fires were kept burning at intervals approximating 
200 yards in holes dug underneath the pipe line, the men entrusted 
with firing working singly. 

While so engaged Nash undertook to split a piece of firewood into 
suitable size with a pick, no ax being furnished him. In so doing he 
split away a sliver some ten feet long and six inches wide at one end 

.nOt>^IC 



104 employers' LIATJII.tTY ACT DECISIONS. 

and tapering to a point at the other, with so much force that it struck 
and "barked" the skin of his left leg just above the ankle. No one 
except Nash biniself saw the accident and, not regarding the injury as 
being at all serious, he did not report the occurrence and went on with 
his work. 

Nash coutiniied to work the rest of the night of the 12th. He also 
worked during the night of the 13th and a part of the day time of the 
14th, but on the morning of the l.'tth his leg was so swoJlen and so 
painful that he was unable to get out of bed or put his foot to the floor. 

As to the condition of Nash's leg on the morning of the 15th we have 
the testimony of. Dr. Hf. W. Pascoe, a regularly practicing physician of 
Taft, who testified that there was a swelling of the left leg from the 
knee to the ankle, that there was a scratch over the shin bone, and that 
there was an infection of the leg due to the wound on the shin. There 
was n slight discharge from the wound, and the disability was sulTicient 
to incapacitate Nash from working. Nash expliiined the origin of the 
injury to Dr. Pascoe at that time substantially as given in bis testimony 
in this case. Dr. Paseee is positive that there was no indication of 
erysipelas on the date of bis examination, Alarch 15th. 

On Man;h 18th Dr. J. W. Key assumed control of the case and, at 
that time, erysipelas had distinctly developed, although in a mild form, 
lie treated the ease for two weeks, by which time this disease bad been 
cured, whereupon a varicose vein broke down in the calf of the leg and 
ulcers developed, which Dr. Key treated for a mouth or more. It was 
net until the 20tl] of May that Nash bad so far recovered from these 
ulcers that he was able to go to work at his accustomed employment. 
He might have been able to do light, sedentary qr clerical work bad 
there been any to do, but such work is not abundant at Taft and appli- 
cant is unskilled in any of the sedentarj' employments commoidy to be 
bad in such a community, having always been employed at hard labor. 

We think that the evidence warrants the conclusions that there was 
liu accident. Dr. Pascoe's testimony corroborates and confirms the 
otherwise unsupported testimony of Nash to that effect, and we think 
that the chain of connection between the scratch on the shin of Nash, 
sustained through accident, and the erysipelas, which disabled for two 
weeks, and the varicose ulcers, which in turn disabled until the 20th of 
May, has no missing link; but a very impo,rtant issue arises as to 
whetiier or not the scratch on the shin, received on the night of March 
12fh. was the proximate can.se of so much of disability as may be 
attributed to the cr;i'sipela.s and the resulting varicose ulcers. On the 
determinalinn of this issue hangs the determination of the entire 
controversy. 

The term u.scd in the act is "approximately," which the Century 
Dictionary defines as "to stand iu an intimate relation," "near in posi- 



employers' liability act decisions. 105 

tion," "nearly precise." all of which definitions apply only indiffer- 
ently well to the evident use made of the term, whereas the term "prox- 
imately" much better fits the spirit of the statute. The Century defines 
this term as "next," "immediate," "without the intervention of a 
third," "that which immediately precedes an effect, as distinguished 
from a remote, mediate or predisposing cause." 

Bouvier's Law Dictionary defines "proximate cause" as "that which, 
in a natural and continuous sequence, unbroken by any new cause, pro- 
duces an event, and without which the event would not have occurred." 
The proximate cause is that which is mo.st proximate in the order of 
responsible causation. "That which stands next in causation to the 
effect, not necessarily in time or space, but in causal relation." We 
conclude that it was through inadvertence that the word "approxi- 
mately" found its way into the statute and that "proximately," with its 
more definite legal meaning, more nearly indicates what was intended 
where the word "approximate" or "approximately" appears iu the act. 

Was the disability of Nash occasioned through erysipelas and varicose 
ulcers proximately caused by the in,iury to his shin sustained on the 
night of March 12th T 

In Dunham vs. Clare, a leading English case, W. C. C, Vol. 4, page 
102, the court held that death resulting on the 27th of September from 
er\-3ipelas that developed on the 16th was the proximate result of an 
injurj' to a toe, sustained on the 2d. 

In Ystradowen Colliery Compavij vs. Gri/fitlis. B. W. C. C. Vol. 2, 
page 357. the English court of appeal held that chronic bronchitis, 
which still persisted to incapacitate in March, 1909, was proximately 
caused by an injury to the knee sustained on December 6, 1907, although 
the bronchitis was contracted by reason of the weakened condition of the 
employee, necessitating his being between two and three hours in getting 
home on a bitterly cold night, although be lived only a mile and a quar- 
ter from the colliery. It would seem that the knee recovered from the 
direct injury, hut the exposure consequent upon the injury resulted in 
a permanent impairment of the health of the employee, for which dis- 
ability the court held compensation to be properly due. 

In the more recent ca.se of Tliobiini vs. Bcdliiiglon Coal Compani/, 
Vol. 5, W. C C. 128, an award of a death benefit was su.staincd by the 
English court of appeal although the injurj- was sustained thirteen 
months before death occurred arid death resulted from bronchitis, 
whereas the injury was a broken leg and a crushed back. 

In Walker vs. Mulliiix. B, W. ('. C. Vol. 1, page 211. the court of 
appeal of Ireland upheld an award of ciuiipcnsation where the great toe 
of a gardener was pierced by a nail tbrough accident on the 2:W of 
March and he died of tetanus on the 2:Jd of April, on the ground that 
the accident was the proximate caase of the death. 



::G00'^|C 



106 EUPLOYBRS' LIABILITY ACT DECISIONB. 

Per contra, in Hugo vs. Larkins & Co., B. W. C. C, Vol. 3, page 228, 
an award, made on account of a death from erj-sipelas in the head, 
which tonk place in July, predicated upon an injury to the hand, which 
took place on the 17th of April, was reversed by the English court of 
appeal as not being the proximate cause of such disability and death. 

While the foregoing British cases are not binding upon the Industrial 
Accident Board of the State of California, the decisions quoted from 
were rendered by courts which liave had much experience in compensa- 
tion controversies and are entitled to receive due consideration at the 
hands of this Board. 

We think that the disability of Nash, whether due to the initial 
swelling, to the existence of which Dr. Pascoe testified, or to the ery- 
sipelas which followed and the varicose ulcers which succeeded the 
erysipelas, was proximately caused by the ' ' barking ' ' of his shin on the 
night of March 12th and that such injury was the result of an accident. 

There remain to be conaidred certain points suggested by defend- 
ant's attorney in his brief. One is that applicant failed to file a writ- 
ten notice of claim within thirty days after the accident happened. 
UncoD trover ted evidence shows that the injury was reported to an 
officer of the defendant corporation within loss than one week after the 
accident and that medical and surgical treatment was afforded appli- 
cant as a result of such notice, so that defendant can not have been 
prejudiced by the failure to give a formal, written notice within the 
prescribed thirty days. The fact that such medical service was fur- 
nished is not to be eonstnied as an acknowledgement of liability on tlie 
part of the defendant, but only as notice of the injury. 

This board quite agrees with defendant's attorney that all minor 
injuries should be reported at once to employers lest they culminate in 
injuries both serious and costly; but this Board is powerless to read 
into the act provisions that are not there. The only requirement in the 
act in relation to notice of injury is that contained in section 10, which 
allows thirty days during which such notice may be given. Therefore, 
requirements to report injuries forthwith, that first aid and septic treat- 
ment may be had at once, initst be mainly a matter of discipline of 
working forces, in the aid of which this Board will render every assist- 
ance in its power. 

A. J. PnXSBURY, 

Will J. French, 
Willis I. Morrison, 
Members. 



D.gitizecbyG00glc 



EMI'IX)YBItS LIABILITY ACT IlKt^lSIONS. 

(No. 38-^une 24, 1913.) 

(Chapter 399, Laws 1911.) 
J. D. WILLIAMSON. Applicant, vs. STANDARD OIL COMPANY (a 

TiOK), Defendant. 

Degree of Disabilitt— Loss of Earniko Power.— The degree of disabilit]' result- 
ing from an injury is to be detennined with reference to tbe employment in 
which the injured person ie encaged at the time of (he injury, and not with 
reference to hia general parning power. However, where it appears clearly that 
the injured employee, in the exercise of reasonable diliKt'Dce, and in view of the 
nature and extent of his injury, could have earned a less amount at other work, 
bis Idbs of earning power is to be measured with reference to such poesible 
earnings. 

Compensation — Pitrpobe. — CompenBation on account of industrial injurlns does not 
contemplate makiug^ good nil inns austaincd by reason of such injuries, but is 
designed to help the injured person to tide over bis period of adversity until he 
can readjust himself to hie maimed eonditlon. 

This is an application for coin pen sat ion on account of a spraine<I 
Hitklc. The facts are state<l in the opinion. The applicant was awarded 
the sum of $l-'>0.68, covering his weekly lass in wages from July 26, 
1912, to June 4, 1913. 

J. D. Williainsov, in propria persona, for Applicant. 
Oscar Svtro, attorney, for Defendant. 

The applicant in this case is a lalmrer able, under normal conditions, 
to follow the occupation of hod carrier or to do other labor requiring a 
high degree of muscular power. On Jlay 11, 1912, while in the employ 
of the Standard Oil Company wheeling a barrow of sulphur, a board 
along which he had to pass turned, by which accident he sustained a 
severe sprain of the left ankle. He received prompt treatment at the 
cost of the employing company and was totally disabled until July 1, 
1!H2, f(ir which period compensation was duly paid. 

Applicant worked in lighter employment, and for shorter hours, from 
the 1st of July until the 26th of that month when, for no very well 
defined reason, unless through fear that his ankle might not get thor- 
oughly well if he continued to use it. he quit work and remained for the 
most part unemployed up to the 4th day of June, 1913, when he pro- 
visionally accepted from the defendant corpwation employment that 
he conld perform and at the same wage's that he was receiving at the 
time he was injured. 

It was stipulated by the parties that the Industrial Accident Board 
should determine the nature and extent of any partial disability that 
might be found to exist lietwcen the 2r>th of July. 1912, and the 4th 
day of June, 191.'!. and the compensaticm, if any, due and payable for 
such period ; that further proceeding.-! be suspended for six months from 
June 4th without prejudii'c to a renewal tliereof as to any disability 
that, in the light of further expenencc, may be found to exist at the 



Goo'^lc 



108 UMPLOYERS' LIABILITY ACT DECISIONS. 

I'lid of Mueh period, and as to eompeusation payable thereafter. The 
sole issue whieh this Board is a^ked to determine is, therefore, what 
disability, if any, existed between the above named dates, and what 
compensation, if any, should he awarded by reason thereof. 

Applicant is of the opinion that his injury is permanent, that he will 
never again be able to earry a hod or to perform other labor requiring 
a high degree of maseular power. 

It is matter of common knowledge that a very severe sprain of the 
ankle, accompanied by the tearing of tendons, never will wholly recover 
its former power of resistance to injury, and that such an injury does 
sometimes permanently incapacitate the person injured from following 
certain occupations j but it is also of common knowledge that many 
pen>-ons so injured, and under the necessity forever after of exercising 
a high degree of care of the weakened member, do perform services of 
great muscular requirement by habitually, though unconsciously, 
"favoring" that member so that the injury is finally attended with 
little if any permanent loss of earning power. 

Jforeover, the statute requires this Board to determine the degree of 
disability resulting from an injury with reference to the employment in 
which the injured person was engaged at the time he was injured, and 
not with reference to the injured person's general earning power in any 
occupation he might otherwise see fit to enter. At the time of his injury 
applicant was wheeling a heavy load of sulphur, which refpiired consi<l- 
erable physical strength, the employment was arduous and he worked 
twelve hours a day. Ilis daily wage was $3.20, and his annual average 
earnings, computed as the statute requires, $960.00. 

During the time that applicant worked, July 1 to July 26, 1912, bis 
day was nine hours, his wage.s were twenty-five and five ninths (25 5/9) 
cents per hour, or $2.30 per day, and his annual average earnings were 
$690.00. It is reasonable to suppose that, for a year or more after 
sustaining such a sprain, the injured person might not be able to be on 
his feet longer than nine hours each working day, but this Board is 
uneonvineed that, from July 26, 1912, until June 4. 1913. the applicant 
herein could not have eontiuned for at Ica-st nine hours each day at 
the work that he was doing during July, 1912, aud our determination of 
the degree of disability sustained is based upon the conviction that he 
might have so worked. 

It can not be too strongly impressed upon the minds of all persons 
comerned that compensation for industrial injuries docs not contem- 
plate or aim at a making good for all lass sustained by reason of an 
injury. All that it attempts to do is to help the injured person to tide 
over his period of aeutcst adversity until he can readjust himself to 
his maimed condition. Some time, when the problem of malingering 



...Goo'^lc 



employers' liability act decisions. 100 

shall have been solved and the tendency to malinger eflfieiently dealt 
with, "<'ompensHtion" may eome to be what the term itself implies, but 
that is not yet. Heantiinc, it is progress enough if all who are indus- 
trially injured are adeiiuately helped over their respective periods of 
greatest need, 

A. J. PlLLSBURV, 

Wn.L J. French, 

Members. 



(No. 44— -Tune 2i, 1!I13.) 

(Chapter 399, Imws 1311.) 

SPRECKELS BROS. COMMERCIAL COMPANY <a corporation), Apiilitant. 

vs. MRS. IDA NELSON, Defendant. 

Death Benefits — Amount. — Where both the employer and employee are aubjeet to 
the cotnpenERtion provisions o( eliopter 31K) of the Lows of 1!)11, the nmouDt of 
death benefits i)a]'Hble to persons wholly dependent upon the deceased employee 
for support is clearly defined as three times the average annual earoiDHH of the 
deceased employee, and this amount can in no deg^c be increased or diminished 
by the Industrial Aeddent Board. 

■ This was an applitration by the employer to have determined and 
awarded the proper amount of death benefits to the defendant, as the 
surviving dependent widow of a derea.sod employee. The facts are 
stated in the opinion of the Board. Award was made in the sura of 
!|;:i,r).57.55. 

Harry L. Tifii.i, attorney, for Applicant. 

Young 0. Hurkhart, attorney, for Defendant. 
Gus Nelson, a stevedore, while working on board a ship for the 
Spreekels Bros. ConimereiHl Company of San Diego, Califoirnia, lost his 
balance and fell through a hatch, receiving injuries which later resulted 
in his death. His average annual earnings were $l,l8i>.S5 and, by 
virtue of subdivision (a) of subseetion (3) of section 8 of chapter 399 
of the Laws of 1911. the widow of said (lus Nelson, deceased, is entitled 
to receive as a death benefit a sum of money equal to three times such 
average annual earnings, or the gross sum of $3,557.55, the payment 
of which, unless otherwise nintually agreed between the parties, is to 
be made in weekly installments of $22.80 until fully paid. 

Inasmuch as said Spreekels Bro.^. Commercial Coiripany has been at 
all times since the death of Nelson ready and willing to pay the compen- 
sation provided b,\' the above law, there is and has l)een no controversy 
that needed to l>e called to the attenti<m of the Industrial Accident 
Board except a (juestion regarding the amount of the death benefits to 
be paid to the widow of the dccea.sed. Mrs. Ida Nelson, the widow of 
deceasetl, feeling the iniKleipiaey of the indemnity offered ta I>e paid 

Goo'^ Ic 



110 employers' ijahiuty act DEcrsroNS. 

her for the loss of her late husbfliid'ti labors in support of the family, 
rteeliiu'd to accept the eompensation tendered her by the Spreckels Bros. 
Commepcial Company and threatened to institute legal proceedings in 
order to obtain a sum that would mare nearly indemnify her for her 
loss. Hence the employing corporation very properly instituted this 
proceeding to have the matter officially determined. 

The word "compensation" was unfortunately chosen to represent the 
measure of indemnification which the act makes for industrial injuries, 
for in no case does "compensation" compensate. At best it merely 
tides the injured person or bis family over the period of adversity con- 
seipient upon the injury until thase affected can adjust themselves to 
their new condition. Critics of the compensation system are insistent 
that the injured persons and their dependents must bear some share 
of the economic loss occasioned through accident and not place all of it 
upon the employer or the industry, and that, therefore, there should 
be some contribution on the part of Ihe injured to the compensation 
cost. That there is such contribution this case well illustrates. 

Qus Nelson was fifty-eight years of age, industrious, and of sound 
body. He had a daily earning capacity approximating $4.00. The 
most reliable estimation of the economic value of a life is afforded by 
aseertaining what it would cost to purchase an annuity equalling the 
wage earning power of the deceased. The annuity value of a physically 
sound man of fifty-eight years of age is $3,528.00 for each dollar per 
day earned, and for the late fJus Nelson it was $14,112.00; that is, it 
would have required $14,112.00 to pun^hase for Nelson and his family 
an annuity that would pay them $-4.00 per day for each of the 300 work- 
ing days in each year of liis life. If we concede that, had Nelson lived, 
he would have devoted 40 per cent of his earnings to his own use, leaving 
only GO per cent for that of his family, the lass of the latter as the 
result of his death is $8,467.20, as against a total "compensation" pay- 
able under the act of $3,557,55, a deticiency short of making complete 
compensation for the economic loss alone of $4,909,65. In other words, 
while the shipping industry, is standing $3,557.55 of this economic loss, 
the widow and her two daughters are standing a los:* of $4,909.65. The 
situation will be the same under the statute enacted at the last session 
of the legislature. Surely this should persuade advocates of this idea 
of "contribution" to compensation cost that there is and will be "con- 
tribution" enough on the part of the injured person and his depend- 
ents. It was not at all unnatural that in this case the widow, Mrs. Ida 
Nelson, should feel that the "compensation" tendered her lacked much' 
of being adequate to meet her needs. 

Ill the matter of the auKjunt of death benefits payable to dependents 
the law allow.'! this Board no di.scretionary power whatever. The death 
benefit in all C!i.ics, as fi.xed by statute, is three times the average annual 



EMPLOYEns' r.IABII.ITT ACT DECISIONS. Ill 

earoijigs of the deceased, le»a whatever may have been paid him as 
compensation benefits prior to his death. This board can neither add 
to nor diminish such death benefits. Whether or not such compensa- 
tion is to be paid iu a lump sum or in weekly or other installments is 
for the parties concerned to agree upon if they can. 

Lest Mrs. Nelson blame the compensation act unduly for the inad- 
equacy of the recompense made her for the death of her husband, we 
beg to call her attention to the fact, which the evidence in the case seems 
to justify, that had her late husband and his employer not been under 
the compensation provi-siona of the act it is more than likely that she 
wQuId have received no indemnity whatever, ina.smueh as the injury 
which cost her husband his life seems to have resulted from a pure 
accident involving no element of negligence on the part of either the 
employer or any of the cmployeeH, thus furnishing no foundation for a 
suit for damages under the common law. 

A, J, PlLLSBURT, 

Will J. French, 

Members. 

W. I. Morrison, Commissioner, concurring: 

I concur. The Board in determining the amount of the death benefit 
to be allowed', can not take into consideration the need of the particular 
individual to whom it is to be paid, although, where there is no pre- 
sumption of dependency, this fact may be taken into consideration in 
determining whether or not "dependency" in fact exists. Where there 
are persons ''dependent for support" the Board has no discretion, but 
must allow, as a death benefit the amount fixed by subdivisions (a) and 
(6) respectively, of subsection (3) of section 8af the act. The death 
l>enefit is not the same in all cases, but is fixed by law in accordance with 
the relative extent of the dependency. 

Where there are persou-s wholly dependent, as in this case, the death 
benefit is three times the average annual earnings of deceased, such 
annual earnings to be taken at not less than $333.33 nor more than 
$1,666.66. Where there are no persons wholly dependent, the death 
Iwnefit is proportionate to the amaunt devoted by deceased during his 
lifetime to the support of such dependents. The total liability of the 
employer for compcasation is limited to three times the average annual 
earnings, so that if a part of this amount has been paid to deceased 
during his lifetime, as compensation for the injury which later caused ' 
his death, such amaunt is to be deducted from the death benefit. 

Subdivisions (o) and (b) {sii}»-a) provide that the death benefit is 
"to be payable unless and until the Industrial Accident Board shall 
otherwise direct, in weekly iiLslallmonts corresponding to. the weekly 
earnings of the employee." As this Board said in its annotations to 

Goo^^lc 



112 employers' liability act decisions. 

this sertiou, appearing on page 38 of a pamphlet issued by it on October 
25, 1911, "Death benefits may be ordered paid in weekly installments 
suth as the dependents were accustomed to receive or in such other 
manner as may, iu the discretion of the Board, seem most benefleial to 
the dependents. In my opinion, under ordinary circumstances, the 
interests of all parties will be best conserved by requiring the payment 
of compensation benefits in weekly installments, and the Board should 
never order a lump sum settlement unless it clearly appears that such 
settlement is necessary. I do not consider that the showing here made 
is sniTicient U\ reijuire the deatli benefit to lie commuted. 

Wn.i.iH I. Morrison, 
Member. 



(No. 36— June 25, 1913.) 
(Chapter 3»9, Ijiws Iftll.) 
FRANK SRYWALD, Applivant. va. KORD MOTOR COMPANY (a 

Defendant. 

CoUHHB OF Em PLOT WENT— Service Inciiientai. to EMrLoYMEisT— IIoURa of Labor. 
It was tlie Kanctioncd practice of wareliouse employees of the defendant, whose 
workiDg <loj' endpil at 5:30 o'clock p.m., to quit work sborlly liefore that time 
and travel, in a car belonging to tlic company. From the warehouse to the shop 
to ascertain whether or not overtime work was miuircd. Held, ttiot the appli- 
cant, who sufFered injury while traveling, in such manner and at such time, wns 
perConniiig stTvice growin;; out of and incidental to bis emjiloymeut and was 
actiog within the liue of his duly and course of biH employ ment. so a? to hi' 
entitled to compensation for the resultint; disability. 

This was an application for compensation on account of a fractured 
skull and bodily liruises. The facts are stated in the opinion. An 
award wiis made for the expense of medical and surgical treatment in 
tlie amount of $62,50, and for compensation in the sum of $25.50. 

Frank titywald, in propria persona, for Applicant. 

Samuel Knight, attorney, for Defendant. 
Prank Seywald was riding on the footboard of an automobile owned 
by the Ford Motor Company on the afternoon of April 15, 1913. While 
turning the corner at Market and Pell streets he was thrown violently 
to the ground and sustained a fractured skull and bodily bruises. The 
eontn.versy in the ca.se aro.se as to whether the in.jured man was per- 
forming service flowing out of and incidental to his employment and 
was acting witliin the line of bis duty or course of his employment as 
such. The ai)plicant claimed that he was proceeding from the defend- 
ant's wnrehoiise at 53 Bhixome street, San Prancisco, to its shop and 
salesrooms at KK) Van Ness avenue. Shu Francisco, in order to ascertain 
whether his services were n-ipiired that nij;ht for overtime work, and 
thai it was the cu.itoni of eiiiiiloyccs .so to ascertain if notification was 



employers' liability act decisions. 113 

not given by telephone. The defendant claims that the applicant had 
ceased his employment for the day and was on his way home, at hia 
Qw-n request, and that he was not at the time of the injury engaged in 
the perforinauce of any service for his employer. 

The testimony is conflicting. Some witnesses testified in support of 
the defendant's contention, while others agreed with the applicant. 
Inasmuch as the witnesses, with the exception of two, were in the employ 
of defendant at the time the ease was heard, and their testimony was 
not unanimous, the evidence of the two men noted becomes specially 
important. 

The hours of work at the warehouse at 53 Bluxome street were eight 
and one half, from 8:00 in the morning until 5:30 at night. It would 
seem that the defendant's contention would have very great weight had 
there been no evidence presented concerning a variance of time from 
5:30 in leaving the warehouse, but several witnesses testified clearly 
that it was the custom to leave the warehouse before 5:30 at night, and 
as it is reasonable to presume that there must have been a cause for this 
custom, the applicant's claim was very materially strengthened by the 
testimony given to that effect under oath. 

Inasmuch as employers naturally keep their employees at work during 
the regular hours, any variance in the quitting time, if of fretpient 
occurrence, must become known to the employer and, if continued, 
either have his direct or his tacit approval. 

Applicant had worked for the defendant less than two weeks, and 
he followed the custom of the other employees of proceeding to the 
shop on Van Ness avenue to see if overtime work was required. Some- 
times the foreman at the shop would telephone to the warehouse, thus 
obviating the necessity of the trip. Two chauffeurs, J. Ross and 
William Joseph Smith, working for the Morau Company at 83 Blusome 
street, rode part way home at night with the Ford employees whenever 
]iossible. These two men work irregular hours, according to the status 
(»f the loads they are required to take out. If they succeeded in return- 
ing to the Moran Company's place of business before 5:30, they would 
ascertain whether a motor car was available frcan the nearby Ford 
warehouse for the up-town trip. Consequently these witnesses had 
excellent opportunities to become acquainted with the working hours of 
the Ford Motor Company's employees. Mr. Ross testified that "we 
left the warehouse at about twenty minutes past five on the night of 
April loth." He had asked the foreman of the Ford ilotor Company 
the time at 5;ir» and then inquired when he (the foreman) would start 
for the shop on Van Nes.s. lie was told "In about five minutes." 
Mr. Ross said that if he should call at the Ford warehouse at 5:25 at 
night he would always find that the men had left. 



8—11505 



::G00'^|C 



114 employers' liability act decisions. 

Mr. Smith gave testimony similar to that of Mr. Ross. He said: 
"1 am positive that on the nights I rode we left about twenty minutes 
past five. 1 have always heard the men say they wanted to be up at the 
shop at 5;30." Other testimony, equally clear, was given by these two 
men. 

It appears to the Industrial Accident Bgard beyond question that 
the employees of the Ford Motor Company left the company's ware- 
house at 53 Bluxome street, San Francisco, for the shop at 100 Van 
Ne.ss avenue, San Francisco, on many occasions before the hour of 5 :30 
in the evening, and that on the evening of April 15th this custom was 
followed. Defendant must have been aware of the action of its em- 
ployees, because only a few minutes were consumed in transit, and 
some check would have come from the management had the hour for 
leaving work at the warehouse been violated to the detriment of 
defendant herein. Consequently the deci.sion for the applicant is given 
on the ground that his accident was sustained during the period of 
employment, and while performing service growing out of and inci- 
dental to such employment. 

A. J. PiLLSBURT, 

Will J. French, 

Members. 



(No. 40— July 3. 1913.) 
(Chapter 399. Laws 1911.) 
MANUKL AUGUSTO, Apptioant. vs. STANDARD LUMBER COMPANY (a 

in), Defendant. 



ABMiRSioN — VoLUNTABT Patuent BY Emploveb. — A payment made, or offered, by 
the employer, after a claim for iojury. can not. of itself, be pODStrued as an 
admission od his part eitlier that nn accident bas happened or that he is in any 
way liable for coiti|>ensation. Evidence herein considered, and held insufficient 
Co show an accident. 

This was an application for compensation for personal injury. The 
facte are stated in the opinion of the Board. The evidence was held 
insufficient to show an accident. 
J. C. Webster, for Applicant. 
S. D. Woods, for Defendant. 

Manuel Augusto claims compensati(tn f<ir a hernia alleged to have 
been caused by lifting; a heavy piece of timber, while he was in the 
employ of the Standard Lumber Company, at Cold Springs, near 
Sonora, California. The applicant is uncertain as to the date of the 
injury. He testified that he did not know when he was hurt, but it 
was "about'' October 31, 1912. The application for adjustment of 



w^,, 



C 



EMPLOTETIS' LIABILITY ACT DECISIONS. 115 

It devolves upon the applicant to prove that he met with an aecident 
while "performing service growing out of and incidental to his em- 
ployment." It is impossible to say definitely that he did not sustain 
such an injury, but his contention is clouded in fact and unsupported 
by evidence. J. C. Rasseufoss, assistant secretary of the Standard 
Lumber Company, telephoned to Mr. Hill, who was working with Mr. 
Augusto on October 31, 1912, and that gentleman replied that he had 
never heard of any injury to the applicant in this proceeding. It is 
reasonable to presume that a man a^si.sting another man while at work 
would hear, sooner or later, of an accident while they were so closely 
a&sQciated. The applicant did not refer to Mr. Hill, while giving his 
1«stimony, nor was he called as a witness. 

The testimony is clear to the effect that applicant worked full time for 
the Standard Lumber Company during the months of last November, 
December and January, sixteen days during February, thirteen days 
during March, ten days during April and eleven days during May, 
Dr, R. I. Bromley of Sonora operated on Mr. Augusto on March 22, 
1918, and the navel hernia was reduced. This doctor, testifying in 
l>eha]f of the applicant, said the injury to the navel might have been 
there a long time, or might have been caused by a blow or an injury. 
These words of Dr. Bromley's bear out the uncertainty above noted: 
"The applicant's statement that he had the trouble from early life 
wBs probably correct." Mr. Augusto testified: "My navel protruded 
about three eighths of an inch ever since I was a small boy." 

Dr. E. T. Gould, the company's doctor, te,sti6ed that he examined 
Mr. Augusto very carefully on February 1, 1913, and found no evi- 
dence of hernia. The testimony of three doctors showed the applicant 
to be suffering from stomach trouble, and treatment resulted in the 
passing of worms. The applicant stated that he had visited the doctor 
for this trouble before the date of the alleged injury on October 31, 
1912. After the operation of March 22. 1913, Mr. Augusto saw Dr. 
(iould about the condition of his bowels. Compensation is claimed after 
March 22, 1913, although both the applicant and his doctor testified that 
the operation was successful and the pain cau.sed by the unnatural ecm- 
ditian of the navel had disappeared. Compensation is not payable for 
sickness as described by the applicant and Drs. Gould and Wrigley, 
and partly confirmed by Dr. Bromley. 

W, J. CoIIard, foreman for the Standard Lumber Company at 
Standard, about three niile.5 from Sonora, and for whom Mr. Augusto 
worked, knew nothing of the alleged injury until the application for 
adjustment of claim was filed with the Industrial Accident Board. He 
alsQ testified that donkey engines lift pieces of timber as heavy as 
12 by 12 or 12 by 14, and men do not. 



D.gitizecbyG00glc 



116 EHPLOYEBS' LIABILITY ACT DECISIONS. 

Henry J. Besant, timekeeper for the Standard Lumber Company at 
Standard City, testified that Mr. Augiisto reported about the end of 
last December that he had strained himself and that he was going to 
the doctor. A claim for compensation was referred to and the injury 
disciLssed on several occasions. This was the only testimony that in 
any way favored the applicant, 

D. II. Steinmetz, treasurer and manager of the Standard Lumber 
Company, testified that the company never heard of the alleged injurj' 
iinlil May 15, 1913. On that date, and while working for the company, 
Mr. Aiigiisto requested financial assistance for the operation. Mr. 
Steinmetz ordered a check for $25.00 made out for the applicant, merely 
to help him pay the doctor's bill, and Mr. Besant told the applicant 
the check was to be considered as a gift and that he had no claim under 
the compensation law. This cheek was ^cfu^■ed, applicant believing he 
should have been offered at least $50.00. It should be clearly under- 
stood that a payment made by the employer after a claim of injury 
(lan not of itself be construed as an admission on his part, either that 
an accident has happened or that he is in any way liable for compensa- 
tion. Many employers desire to assist employees, as in this case, even 
when no legal liability exists, and to hold that such assistance, volun- 
tarily extended, will be construed as an admission of liability would 
result in the withdrawal thereof. 

The testimony in this case renders it necessary to find for the defend- 
ant, the Standard Lumber Company, 

A. J. PiLLSBURy, 

Will J. French, 
Willis I. Morrison, 
Members. 



(No. 18-July 7, 1913.) 

(Chapter 399, LaWB ISH.) 

IJLLIAN M. FAURINOTON, Guardian op the persons and estates op JOSR- 

I'tllNK RtlSSELL, JOHN RUSSELL and LOUIS RUSSELL VAN VKI,^ 

SIR, MINOR CHi[.DBEN OF JAMES RUSSELL. Deceased, on BEUAi.f of said 

MiNOBS. Applicant, vs. L^iCHMAN & JACOBl (a corporation), Defendant. 

Dependency— MisoR CniLDaEN — Duty of Support. — Where a deceased employee 
]cavi?s niiaor ehildrcn Burriiing him. which cbildren were, at the time of his 
(teatb and had been for some years before, in the custody of a sister-in-law, tbe 
mother beiug dead, and tbe defeased has since the death of bis wife coatribnted 
to the support of bis children, the last payment, however, having been made 
three years before his own death, sncli cfaildrcn are depeudents of their deceased 
father and are entitled to compensation following bis death by industrial acci- 
dent. 

Id. — Id. — Test Of. — The test of dependency of minor children is not alone the 
mnkiDs of contributions for their support by the parent Such dependency also 
consists in the duty imposed by law to provide for their support, regardless of 
whether payments are made for this purpose or not. 



employers' liability act decisions. 117 

Id. — Child of Deceased Euplotbe Adoptu) by Stbangbb — Death of Adoptino 
Parent Bkfore Real PABBNT.^Wbere a deceased employee dies leaving a sur- 
viving mioor cbild. and such miaor child had been before the death of its parent 
legally adopted hy a stranger, and such stranger had died before the death of 
the natural parent, but the nnttiral parent had not since the adoption contributed 
to the support of such child, such child is nevertheless a dependent of its natuml 
parent and entitled to compensation tollowiug his dfaih by industrial accident. 
(W, I. Morrison, Commissioner, dissenting upon the Rround that there being no 
legal obligation to support the child following its adoption by another, auch child 
could not thereafter be a dependent of its real father.) 

Fboceovbg of Industbiai, Accident Boabo — Dbmubrebs. — Demurrers are not 
permitted in practice before the Industrial Accident Board. 

Jl'bisdiction of Isih;striai, Accident Board — Reqiusites. — Where employer 
and employee have accepted the provisions of the compensatioD act aud a dis' 
pule or controversy is presented arising und^r that act. and an application is 
tiled in writing stating the general nature of such dispute or controversy, all con- 
ditions precedent to the taking of jurisdiction by the Industrial Accident Board 
have been complied with, and both parties and subject-matter are within its 
jurisdiction. 

The facts are stated in the opinion and dissenting opinion. An award 
was made in favor of Josephine Russell, John Russell and Louis Russell 
Van Velsir, the three minor children of James Russell, deceased, in the 
sum of twelve hundred dollars ($1,200.00) each, payable at the rate 
of seven dollars and seventy cents ($7.70) per week each until the 
whole amount of three thousand six hundred dollars ($3,600.00) shall 
have been fully paid. W. I. Morrison, Commissioner, dissented upon 
the ground that Louis Russell Van Velsir, a child of the deceased em- 
ployee who had been legally adopted by another, was not entitled to 
compensation as a dependent. 

Joseph Scott, attorney, for Applicant. 
Walter H. lAnforth, attorney, for Defendant. 

On the 17th day of January, 1912, James Russell was killed at 
Petahuna, California through the happening of an industrial accident 
arising out of and in the course of his employment with the above 
named defendant. Lachman & Jacobi, a corporation, berth emploj'pr 
and employee being subject at said time to the compensation provisions 
of the "J:mployera' Liability Act" (chapter 399, Laws of 1911). At 
the time of the accident Rassell was earning twenty-four doUai-s 
($24.00) per week, his average annual earnings being the sum of twelve 
hundred dollar.-; ($1,200.00). 

Russell left sun-iving him three minor children, Josephine Russell, 
John Russell and Louis Russell Van Velsir, of the ages of thirteen, 
twelve and eight, respectively. His wife, the mother of said children, 
died some years previously. 

After the death of Rnsscll, Lillian M. Farrington, a sister of his 
deceased wife, was duly and regularly appointed as guardian of the 
persons and estates of said minors by the Superior Court of the State 



118 employers' i,iabii.ity act decisions. 

of California, in and for the county of Los Angeles, and thereafter filed 
this application in behalf of said minors tq recover compensation for 
the death of their father. 

It appears that for some years, both before and after the death of his 
wife. Russell made his home with Mi-s Farrinpton. in Los Angeles, and 
that atthongh frequently employed away from Los Angeles hia family 
always remained there. He was away from Los Angeles at the time 
of his wife's death, but returned at that time and at various times 
thereafter. 

About a mouth after his wife's death, Louis Russell Van Velsir was 
placed in the charge of a Mrs. Jones, the two other children remaining 
with Miss Farrington. About four years prior to Russell's death Louis 
was adopted by a Mrs. Katherine Van Velsir, without the knowledge or 
eonsent of Russell. When Mis.s Farrington notified him of the adoptioin, 
Russell returned to Lcs Angeles and stated that he intended to take 
steps to set aside the adoption, but in fact never did so. After the 
death of Mrs. Van Velsir and. subsequently, of Russell, Miss Farrington 
again assumed the care and custody of Louis. The two other children 
have been living with Miss Farrington at all times since the death of 
their mother. 

Xo definite arrangement was ever made for a division of household 
e.\penses between Rus eli and Miss Farrington cither during the lifetime 
of his wife or thereafter. For some time after the death of his wife, 
Russell paid Mi.ss FarringJ^on the snm of ten dollars ($10.00) per month. 
At other times he sent various amounts, the last payment being made 
about three years prior to his death. lie also contributed to the support 
of Louis until the adoption, but not thereafter. 

About three years before his death, after living with Miss Farrington 
fnr some six months, he left Los Angeles in search of work and did not 
ugain return to the Farrington home. 

So far as we have been able to ascertain, Russell did not at the time 
of Icavins Los Angeles, or at any other time, cxpre-^s any intention of 
not returning or of abandoning his children. On the contrary he left 
part of his tools and clothing at Miss Farrington 's home. 

JIis.s Farrington is without moans of her own and has been earning 
her living by manual labor. Such support as she has given to the 
i-liildren has been given by her voluntarily, there being no legal or con- 
tractual obligation on her part. 

Defendant filed a demurrer to tliis application upon the ground that 
it did not state fact.-i .sufficient to constitute a chusc of action; that it 
was uncertain and ambiguous and that the Board did not have juris- 
diction either over the subject-matters in dispute or of the defendant. 
At the same time defendant filed an an.swer admitting the accidental 
death of Jame.s Russell in thi' course of the employment, but alleging 



employers' LiABii-iry act decisions. 119 

that Ills death was caused by liis carelessness and negligence and due ta 
no fault of the defendant, and also denying the dependency of the 
minor children. 

The question raised by the pleadings and the dependency of the 
minors, Josephine and John Russell, is disposed of in the opinion filed 
herewith by the Hon. Willis I. Morrison. The Board is unanimously 
of the opinion that the said minors, Josephine and John Russell, were 
in fact whoJly dependent upon James Russell at the time of his death, 
for the reasons set forth in said opinion. A majority of the Board is 
of the opinion that the minor Louis Russell Van Velsir was also in fact 
wholly dependent for support on James Russell at the time of his 
death for the following reasons: 

With reference to the status of Louis Russell Van Velsir, with rela- 
tion to dependency upon the father, the issue is not unattended with 
difficulty. Nevertheless it has been clearly established that "the right 
of one person legally to adopt the child of another was unknown to 
the common law and exists in this state as a pure creation of statute 
law": Estate of Johnson, 98 Cal. 531. 

Adoption statutes are in derogation of the common law and strictly 
construed: Ex parte Clark, 87 Cal. 641. 

The power to adopt a minor child is a creation of the statute which 
was unknown to the common law, and the mode (provided by the 
statute) must he held to be the measure of the power: Ex parte Cham- 
bers, 80 Cal, 219. 

Unless the statute so provides there is nothing in the act of adoption 
which deprives a child of if^ rights to inherit from its natural parents. 
American and English Cyclopiedia of Law, 241. 

All doubts in controversies between natural and adopting parents 
are resolved in favor of the former: Ex parte Clark, 87 Cal. 641. 

The foregoing references all go to establish the legal principle that 
adaption is solely a creation of statutory law and that any contingency 
not provided for by statute is governed by the common law. One such 
contingency is the status of a child whose adoptive parent has died 
while one cr both of its natural parents are living. It is repugnant 
to public policy that such a child shall be a waif, a castaway, for whom 
no one is responsible and. therefore, we hold that the death of the 
adoptive parent revived the obligation to support on the part of the 
natural parent, and that thereby Louis Russell Van Velsir became 
equally dependent for support with his brother and sister upon James 
Russell, who.se accidental death furnishes the subject-matter of this con- 
troversy. 

A. J. PiLLSBURY, 

Will J. Fbench, 

Members. 



D.gitizecbyG00glc 



120 employers' liability act trcibions. 

I concur in the opinion of the majority of the Board in findinc that 
the minors, Josephine and John Russell, were in fact whplly dependent 
on James Russell, deceased, at the time of his death. I dissent, how- 
ever, from the finding that Louis Russell Van Vclsir was likewise 
dependent. The facts relative to the matter now under consideration 
are stated in the opinion of the Board. 

Before taking up the question of dependency, it seems advisable to 
first dispose of the questions raised by the pleadings. 

(1) In view of the fact that the procedure under the act does not 
appear to be clearly understood by the litigants, attention is called 
t(t the following provisions of the act relative thereto: 

"Subject to the provisions of this aet, it (the Industrial Accident 
■ Board) may adopt its own rules or procedure and may change the 
same from time to time in its discretion." (Sec. 13.) 

"Upon the filiuf? with the Board by any party in interest of an 
application in writing stating the general nature of any dispute or 
controversy concerning compensation under this act, it shall fix a 
time for the hearing thereof, which .shall not be more than forty 
days after the filing of such application. The Board shall cause 
notice of such hearing to be given to each party interested by 
serviec of such notice on him personally or by mailing a copy 
thereof to him at his last known past office address at least ten 
days before such hearing." (Sec. 15.) 

It will be noticed that the only pleading required by the act is "an 
application in writing stating the general nature of any di.spute or 
controversy concerning compensation." By the rules of procedure 
adopted by the Board on October 2o, 1011, under the authority con- 
tained in section 33 of the act (aiipra) provision is made for the filing 
of an answer wlien any de])endent 

"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 incomplete or desires to bring any fact, paper or 
document to the attention of the Ixiard as a defense to the claim 
or otherwise." (Ruh; VII.) 

There is no provision either in the act or in the rules of the Board 
for a demuiTcr and matters usually raised thereby can only be taken 
advantage of by answer. One of the main purposes of the act is to 
provide for a quick and convenient method of settling disputes rela- 
tive to compensation witlioul requiring any formal pleadings on the 
part of either party. I'mler Rule XIII a defective pleading may be 
amended. 

(2) Under section 12 of the aet, "any dispute or controversy con- 
cr-rning compensation under this aet" is to be subniitled to the Indus- 
trial Accident Board for delerniiiiatinn. The jurisdiction of the Board 
is then dependent upon (1) the acceptance of compensation by the 



.-,00' 



,glc 



employers' I.IAmi.lTY ACT DECIStONS. 121 

employer and employee, {2) a dispute or controversy eoneemiDg com- 
pensation under the act, nod (3) the filing of an application in writing 
slating the general nature of any such dispute or controversy. {Chrisiy 
vs. Standard Oil Company.) 

In the matter now under considei-ation both employer and employee 
were subject to the compensation provisions of the act above cited. A 
dispute concerning the right to compensation had arisen and an appli- 
cation was filed to adjust this controversy. Therefore it clearly appears 
that both the parties and the subject-matter are within the jurisdiction 
of the Board. 

(3) This Board has heretofore pointed out that, under section 3 of 
the act, the right to compensation is a right given "ivithovl regard to 
vcgligcnce," and that, therefore, negligence on the part of the employee 
or employer is immaterial and has no place in a pleading before the 
Board. 

(4) The main question to be decided is as to whether or not the 
minor children of James Russell, deceased, are entitled to compensation 
for the death of their father, from his employer, the defendant herein. 

When an employee under compensation is killed by accident, the 
liability of the employer is fixed by subsection 3 of section 8 of the act, 
and subject to the limitations therein contained as follows : 

Subdivision (a) . In ease the deceased employee leaves a person or 
persons wholly dependent upon him for support, the death benefit 
shall be a sura equal to three times his annual average earnings. 

Subdivision (6). In ca.se the deceased employee leaves no one 
wholly dependent on him for support, but one or more persoiis 
partially 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 upon him for support 
bears to such average earnings. 

Subdivision (d). If the deceased employee leaves no person 
dependent upon him for support, and the accident approximately 
causes death, the- death benefit shall consist of the reasonable 
expenses of his burial not exceeding $100. 

Under this section it is clear that no death benefit, other than funeral 
expenses, can he allowed unless the deceased employee leaves surviving 
him a person or persons wholly or partially dependent upon him for 
support. 

If the minor children of decen.sed were, within the meaning of the 
act, dependent upon hiin for support at the time of his death, then 
they are entitled to a death benefit. If they were not so dependent the 
employer ls liable only for the rea-sonable burial expenses of deceased. 

The Board is unanimously of the opinion that the minors, Jo.sephine 
and John Russell, were totally dependent for support upon James 



::G00'^|C 



122 employers' liability act decisions, 

Kussell at the time of his death for the reasons stated in this opinioa. 
The majority of the Board is of the opinion that the minor, Louis Russell 
Van Velsir, was likewise dependent. I am unable to reach the same 
conclusion. 

Tinder seetion 9 (3) (c) of the act it is provided that "a child or 
children under the age of eighteen years" is to be conclusively pre- 
sumed to be "solely and wholly dependent for support 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," and that "in all other 
eases" (where the conclusive presumptions do not apply) "questions of 
entire or partial dependency shall be determined in accordance with 
the fact, as the fact may be at the time of the death of the employee." 

Attorneys for the applicant in their brief state that the questions 
presented to this Board are purely questions of law. By this we 
assume they mean that the minor children of Russell eome within the 
conclusive presumption above referred to, for, unless they can be 
included within this presumption, the question of dependency is to 
be determined in accordanee with the fact. 

It might perhaps be said that when Russell left Los Angeles some 
three years prior to his death, in search of employment, leaving his two 
minor children, Josephine Russell and John Russell, as well as a part 
of his clothing with Mfss Farrington, where he himself had theretofore 
made his home, and without expressing any intention of either acquiring 
a new residence or of abandoning his children, he did not lose his 
residence and that, at the time of his death, his residence was still in 
Los Angeles with Miss Farrington and the two children then living 
with her, althougli he was temporarily absent therefrom, and that there- 
fore these two children were constnictively living with him, and con- 
clusively presumed to be totally dependent u])on him for support. The 
other child, Louis Russell Van Velsir, who had theretofore been adopted 
by a stranger, and who was not living with Russell at the Farrington 
home when he left Los Angeles, can not under ajiy construction be said 
to have been living with him at the time of his death. 

While, as stated, it might be possible to base an award in favor of 
the minors Josephine and John Russell, upon a constnu;tive residence, 
followed by a conclusive presumption of dependency, we do not believe 
that it is necessarj' so to do. Assuming that there is no conclusive 
presumption of dependency, the questions to be determined may be 
.stated as follows: 

Can it be determined as a fact that a minor child, whose mother is 
dead, was dependent f(U- support upon its father at the time of his 
death, when it appears that the father had not contributed to the sup- 
port of the child for some three years [irior to his o\ni death and that 
during this period the child was supported by the charity of another 



Google 



EMPLOYERS' LIABIUTT ACT DECISIONS. laJ 

who, although a relative, was under no lefial or contractual obligation 
so to do and when it further appears that this relative was without any 
means of her own. and had been earning her living by manual labor and 
that if anything happened to her, or if the support was withdrawn, the 
child would become a public charge? 

The Board is unanimously of the opinion that this question should he 
answered in the affirmative. 

In discussing the liability of the employer uadcr compeasation for the 
death of an employee, applicant lays much stress upon the decisions 
under section 377 of the Civil Code of this state and under the various 
state statutes fixing the liability for death by wrongful act. These 
decisions are to the effect that the right of action in such cases is not 
limited to those dependent upon dei:eased for support or to whom he 
made contributions during his lifetime and that the mere existence of 
a legal obligation to support is sufficient to authorize recovery. 

Applicant then argues that under the decision cited, the minor chil- 
dren would be entitled to recover damages if the death had been causeii 
by wrongful act, even though they were not dependent upon iiecf'as<nl 
for support and that, by the enactment of the compensation act, the 
legislature did not intend to take a right away from a person in wh<we 
favor such right theretofore existed. We do not agree with this state- 
ment. On the contrary, it was i)lainly the intention of tlie legislature 
to deprive certain pcr.sons of rights which tluTctofore existed and to 
grant to others rights which they did not theretofore pns.sess. ^Appli- 
cants very often lose sight of the fact that compensation acts are 
intended to limit the liability of the employer in certain instances while 
increasing it in othei^. 

The right of action to recover for death is purel,v statutory. Under 
these acts, a right is given to recover "pecuniary damages" for loss sus- 
tained. If a person is entitled to support from another, it follows that 
such person is damaged upon being deprived of this right through death. 
The amount of damage may be either nominal or real, depending upon 
the manner in which the obligation to support is disdiarged, but in 
either event, when there is a right, damages may be recovered. Under 
section 8 of the compensation act (supra) the right to compensation is 
given only where there is a person wholly or partially "'dependent for 
support" upon the deceased employee. De])endency is a ccajdition 
precedent to recovery. The mere existence of a legal oliligation to sup- 
port is not sufficient. 

In defendant's brief attention is called to decisions under various 
statutes to the effect that before recovery can bo had, it is necessary to 
show that the person claiming damages not only had a right to support, 
but that the deceased had been actually supporting such person at the 



:,Goo'^lc 



124 EMPI-OYEns' I.IABILtTT ACr DECISIONS. 

time of his death. These decisions also turn upon the construction of 
the particular statute under which the right to damages ia claimed and 
are of but little assistanca in construing our act. 

In Smith vs. Hatcher (29 S. E. R, 162), Savannah Ekciric Vo. vs. 
Bell (53 S. E. R. 109), erroneously cited by defendant as (130 S. E. R.). 
and in Trammel vs. Southern By Co (182 Fed. Rep. 789) the decision 
turned upon the constrmtion of a statute which gave a right of action 
to a parent for the homicidt, of a thild upon whom he or .she is depend- 
ent or who contributes to his or her support." The court first held 
that the word "or" should he construed as "and" and then that it was^ 
"the fact of contribvUon and not the legal ol)ligati()n to malie it that 
the statute makes the ingredient of the course of action." It would 
seem that the court clearK had in nimd the fact that dependency could 
exist even though no contribution was actually made. 

All the cases cited b,\' defendant are cases where the action was 
brought by a parent to recover for the death of a child, or of an adult 
to recover for the death of a relative. We have not been cited to u 
single ease, and despite diligent search have been unable to find a ease, 
where the dependeney of a minor child, not supported by the parent 
upon whom the obligation to support rested, was considered by the court 
in connection with the statutes authorizing recovery only where depend- 
ency exists. 

Under the English compensation act, it was originally held that a 
widow was presumed to be dependent upon her husband for support 
even though he had abandoned her and announced his intention of not 
supporting her. These decisions, however, were all overruled by New 
Monckton Collieries, Ltd., vs. Keeling (4 B. W. C. C. 332), determined 
by the house of lords in 1911, where it was held that there was no pre- 
sumption of dependency in such eases, but that the question presented 
was one of fact. 

We quote from this decision as follo\v8: 

Earl of Loreburn, L. C. — "The fact that a legal duty lay upon 
the workman to provide maintenance is an element to be consid- 
ered, no doubt, because people usually count upon getting what 
they are entitled to get. But when, as here, the wife has not been 
supported for twenty years and in no sense relied upon the work- 
man for any help. I think tliere was no evidence of dependency. 
In my opinion this appeal should l>e allowed." 

Lord Robsnn. — ' ' The wife does not necessarily cease to be depend- 
ent on the husband simply because the latter refuses to recognize 
or perform his obligation and succeeds in throwing the burden of 
her maintenance for the time being on the wife's parents or friends, 
or on the state. They may fulfill the husltand's duty for him. but 
the wife's legal dependence is still on him and not on them, and 
his death deprives her of the proper stay and support on which 



D.gitizecbyG00glc 



employers' liability act decisions. 125 

aIon<4 she is entitled to rely. The eircumstanees, however, are 
wholly different where the wife herself has for years clearly 
asserted and dpfiniteiy maintained her complete independence of 
her husband. That is what the applicant did in this case, but her 
doing so seems to have counted for nothing in deciding either the 
existence or the degree of her dependency." 

In Lee vs. S. S. ''Bessie" (5 B. W. C. C. 55), determined after the 
decision of the House of Lords {suj>ra), the decision of the lower court 
was reversed upon the ground that there is no legal presumption in 
favor of dependency of minor children who had resided with and been 
maintained by their mother, and that in this ease also the question was 
one of fact. 

In a dissenting opinion Fletcher Moulton, L. J., said: 

"I have now to consider in the light of this decision (A'ew Monck- 
ton Collieries vs. Keeling (supra), the position of the children in 
this case. Up to a certain age the father is compellable to provide 
for his children. It may be that the compulsion can only be effe<!ted 
through the poor law. These considerations are immaterial. We 
have to consider the practical value of the existence of this legal 
duty, and though this may be modified by the indirectness of the 
machinerj' with which it is enforced, it is not taken away. Indeed, 
the practical valne of the obligation to support infant children is 
more likely to survive their absence from the father than is the 
practical value of the obligation to support the wife. The wife's 
absence is often the result of her own choice or conduct. It must 
be more or loss by her own choice that she does not compel him 
to contribute to her support. But no such thing can be said in the 
ejise of infant children, who are incapable of work and can not 
do anything themselves to decide by whom they are to be main- 
tained or with whom they shall live. One can easily imagine cases 
in which they ought to be held to be almost wholly dependent on 
the father, as, for instance, where they are being supported by a 
mother who is too ill to be much longer able to work. 

"In my opinion the ease of Kcclinq (supra), although it does 
not refer to the case of infant children, logically carries with it 
the resnlt that the judge is bound to consider the practical value 
of the father's legal obligation to support them, and if he comes 
to the conclusion that there is any reasonable probabilit,v that this 
will be enforced in the future, he can and is hound to hold them 
to be dependents and to award compensation aeeordingl,v." 

In Lindxay vs. McGlaskcn & Son (1 B. W. G. C. 85), a case arisinrr 
iu Scotland, Lord Low said: 

"The ease of a child is more difficult, because a pupil child 
can not choase his own line of life and can not earn his own liveli- 
hood, and there is no doubt that in one sense every pupil child may 
be said to be dependent upon its father because the father is under 
an obligation to support it. Now if a father deserted a pupil child 
and refused to support it, and if that child were kept from starva- 



Goo^^lc 



126 F.MPt.OTERS I.IAIili.lTY AfTT DECISIONS. 

tion only by charity from others, I would have no hesitation in 
saying that although the father was not in fact supporting it at 
the time of his death, yet the child was, within the meaning of the 
statnte, dependent on the earnings of the father." 

In our opinion the rules of construction to be followed in determining 
the fact of dependency are correctly enunciateil in the quotation above 
cited. 

Under our statute every effort is made to provide for the support 
of a minor child. This duty to support is imposed upon the parent by 
sections 20S and 206 of the Civil Code. If the parent does not dis- 
charge the obligation to the best of his ability he is liable, under section 
207 of the Civil Code, to any third person who may furnish support 
to the child and is guilty of a felony under section 270 of the Penal Code. 
Even though the father had abandoned his children, it is probable 
that, if the support supplied to the minors by Miss Farrington should 
fail, as it is likely to do at any time, the obligation owed by the father 
to support Josephine and John Rns.sell would be enforced either volun- 
tarily or under compnlsion. Tlie fact that Sliss Farrington is dependent 
upon her own labor and that it is not at all certain to what extent 
she will be able to support the minors is another element to be con- 
sidered, as well as the further fact that she is under no obligation to 
support them and that if she failed to do so they would become public 
charges. 

Under such circumstances, we have no hesitation in holding that 
the minor children Josephine Russell and John Russell were in fact 
wholly dependent upon deceased at the time of his death and are, there- 
fore, entitled to recover from defendant the death benefit fixed for such 
dependents. 

In my opinion the case of the other minor, Louis Rnssell Van Velsir, 
presents an entirely different f|ueation. 

A child, when adopted, may take the family name of the person 
adopting. After adoption, the two shall sustain towards each 
other the legal relation of parent and child, and have all the rights 
and be subject to all tlie duties of that relation. (Sec. 228, C. C.) 
The parents of an adopted child are, from the time of adoption, 
relieved of all parental dutias towards, and all responsibility for, 
the child so adopted, and have no right over it. (Sec. 229, C. C.) 
By the adoption proceeding, however, the status of the child 
was wholly changed; it became ipso facto the child of another, 
and ceased to sustain that relation, in a legal sense, to its natural 
parents. (Younger vs. Ymmgcr, 106 Cal. 377.) 

Section 106 of the Civil Code, providing that a parent entitled 
to the custody of a child must give hira support and education 
suitable to his circumstances, plainly implie.s that the parent doe« 
not owe that duty to a child when he is not entitled to its custody, 
(Ex parte Miller, 109 Cal. 643.) 

Google 



EMPLOYEES UABILITY ACT DECI9I0NB. 12* 

Where by a decree of divorce the custody of an infant child was 
awarded to his mother, the father is not liable for medical treat- 
ment furnished to it. (Selfridye vs. I'ajton, 145 Cal. 713.) 

When Louis Russell Van Velsir wa^ adopted by Mrs. Katherlne Van 
Velsir his status was thereby changed, he became the child of Mre. Van 
Velsir and ceased to sustain that relation to his natural father. His 
lather was relieved of all parental duties, including the duty to support 
the child, and since it is the right to support upon which the dependency 
mn»t be based, it therefore follows that this child can not be said to 
have been dependent for support upim Russell at any time subsequent 
to the adoption. The fact that Mrs. Van Velsir is now dead does not 
alter the relationship or impose upon the father the obligation to sup- 
port. Upon her death the child became an orphan in the legal sense. 
Even a'>:suming that the obligation to support was revived by the death 
of Mrs. Van Velsir, it can not be said to have been worth anything for 
it was ignored by the father and no effort made to enforce it, the 
reason being that, in my opinion, it did not exist. 

Applicant seeks to show that the child, even after the adoption, would 
1)6 entitled to inherit from its natural father and that as an heir, 
would be entitled to maintain an action for damages under our statute 
for the death of the father by a wrongful act. Assuming such to be 
the case, this fact is immaterial for he was not dependent for .support 
upon his natural father at the time of his death and therefore is not 
entitled to compensation under the act. 

Por the reasons stated we are of the opinion that the two minors, 
Josephine Russell and John Rns-sell, were in fact totally dependent on 
their father at the time of his death and are therefore entitled to the 
death benefit fixed by the act, and that the minor, Louis Russell Van 
Velsir, was not so dependent and is therefore not entitled to compensa- 
tion for the death of his father. 

Willis I. Morrison, 

Member. 



NOTB.~App![oatlon 




[^■hman ft Jaiobl. Ii 




.f ihe IJIWE. of 1911. 


The rci'onl wu» forwardeil to the clerk o! the Superior (loun 




rhe Industrial An'ldent Board submitted a brh-t In support or 


IB "award" T'he"a*pi«-i 


il wiia wlthdriiwh und the uwi.rd la being paid pursuant to lt« 



D.oiiiz.owGoogle 



ISO EMPLOYERS LIABILITY ACT DECISIONS. 

(No. 25— July 7, 1913.) 

(Chapter 399, I-aws 1911.) 

CHARLES NELSON. Applica»l, vs. CALIFORNIA STEVEDORK AND BAI^ 
LAST COMPANY (a cobporation). and rACIFIC COAST CASUALTY 
COMPANY (A COBPORATION). Defend«nli. 

Insurance Cabbieb — Liaciutt ENroBCEABLC — Jubisdiction of BoABO.^Under 
the provisions of sections 24 and 25 of chapter 399 of the Laws of 1911, an 
employee is given the ri^lit to enforce, in his own name, the liability of any 
insurnoce carrier, which has insured an employer against liability for coiniwn- 
snlion. and the contract of insurance is rendered void so far as its provisions are 
ineonsiBtent with the law. The Industrial Accident Board, therefore, has juris- 
diction to make and enforce an award in favor of an injured employee against 
an iuBurance carrier in a proper case. {Kollowing Curtiiin(;Anm vs. /xitfce Con- 
ilruelioH Company and ftouthtccilcrn Hiircty insurance ConipoBji, decided 
May 13. 1913.) 

Kbleahb — CoMFROiiiSB— JWBIsnicTioN.— The provisions of section 28 of chapter 309 
ot Ihe Laws of 1911, auttiorizing a compromise and settlement by the parties, 
do not deprive the Industrial Accident Commission of jurisdiction to inquire into 
the facts Biirroundiug the execution of a release. Such an instrument will be 
carefully scrutinized and will only be enforced when clearly authorized by law. 
Where the parties, advised of their riehls, intended to compromise and settle, 
ttiougb Ihe method used by them was cateless and inaccurate and without effort 
to ancertnin the extent of the liability, it is ftdi/, that the compromise settlement 
and release are good, where supported by a valuable consideration. (Will J. 
French, member, dissenting, on the ground that as a matter of fact it appeared 
that the injured employee did not understand bis rights nor the nulure of the 
instrumeut signed by him and, therefore, the requirement of a meeting of the 
minds of the parties, necessarj' to a valid compromise, was not present.) 

Appiipation for eoTiipensatimi for injury to chest, A compromise 
and settlement were pleaded by defendants, held to be valid and com- 
pensation was denied. 

Charley Nelson, in propria persona, for Applicant. 
Samilton A. Bauer, far Defendants. 

On January 30, 1913, Charles Xelson, the applicant herein, a steve- 
dore einptoyed by tlie defendant, California Stevedore and Ballast Com- 
pany, while working on the steamer Luekenbaeh at Oleum, California, 
WHS knocked down by a hook used in loading and unloading the ves.'^el, 
sustaining a fracture of a rib and a severe in.iury to his side. 

Immediately after the accident, Xetson told Nash, his foreman, that 
lie had been hurt, but that he did not think it would amount to much. 
IJeing a batch tender and re(|uired merely to give signals, Nelson was 
able to continue work, although in pain, until February 4th, when the 
job was completed. On February Btb he again undertook to perform 
his regular work of stevedoring, but found that he was unable to do 
this work and went home. On February 10th he consulted Dr. T. W. 
Connolly, of San Pranciseo, and then for the first time learned that hie 
rib had been broken. After examining Xelson, Dr. Connolly told him 
that he would probably be disabled until February 28, 1913, and that 



employers' liability act decisions. 129 

he was eatitled to compensation from his employer. He also gave him a 
certificate setting forth the probable nature and extent of the disahility. 

On that same day Nelson presented the certificate to M. M. Kahn, 
cashier and paymaster of the California Stevedore and Ballast Com- 
pany, and asked for compensation. Kahn took Nelson to task for not 
reporting the injury sooner, but told him that he would take up the 
matter and see what couUi he done. 

At the time of the accident the California Stevedore and Ballast 
(Company was insured by the defendant, Pacific Coast Casualty Cojii- 
pany. Kahn took the matter up with the said company and, according 
to his testimony, was told to give Nelson ten dollars ($10.00) and secure 
his release. 

On the evening of February 12th Nelson returned to the ofBce of 
his employer and Kahn gave him a release to sign in duplicate, telling 
him that ten dollars ($10.00) was the best that could be done. Nelson 
accepted the amount tendered and signed the release of liability, which 
contained the following clause : 

"It is hereby expressly agreed and understood that the payment 
of the said sum is not to be constnied as an admission on the part 
of the California Stevedon^ and Ballast Company of any liability 
whatsoever in conseijuence of said injuries or accident." 

The evidence is somewhat conflicting as to whether or not the nature 
of this instrument was explained to Nelson, Kahn insisting that he told 
NeLson that it was a release and Kelson stating that he was not so 
advised. At any rate. Nelson, who was a man of intelligence and able to 
read English, signed the release without reading it, took his ten dollars 
($10.00) and left without stopping to intiuire just how much he was 
entitled to under the act, although his physician had informed him 
two daj^ l)efore that he was entitled to compensation. It appears that 
Nelson did his reflecting after and not Iwfore signing the release, and 
beeotning convinced that he had not been treated fairly, commenced 
this proceeding. 

It is contended by defendants that this Board has no authority to 
render an award against an insurance carrier and that the Board can 
not, in any event, pass upon the validity of an instrument, executed by 
the parties purporting to be a release of liability for eompensation, even 
though it be admitted that the facts surrounding its execution are such 
as to justify a court in setting such instrument aside. 

(1) Under section 24 of the compensation act (('hapter 399, Laws of 
1911) the employee is given "the right to enforce in his own name, in 
the manner provided in this act. the liability of any insurance company, 
which may. in whole or in part, have insured the liability of such com- 
pensation;" while under section 25 of the act, "Every eontraet for 
the insurance of the compensation herein provided for. or against lia- 



130 employers' liability act ItRCISTONS. 

bility therefor, shall be deemed to be made subject to the provisions of 
this act, and provisions th(?reof inconsistent with this act shall be void." 
In Cunningham vs. Loclic Construction Company and Southwestern 
Surety Insurance Company, determined by this Board on May 13, 1913, 
the Board rendered an award against the insurance compauy, the 
opinion containing the following statement : 

"Whatever may have been the relations of the liability insurance 
companies to the employer in the past, there can be no question 
but that under the present act, by insuring the employer against 
liability for compensation, the insurance company thereby assumes 
certain direct statutory obligations to the injured employees. • • • 
The employee is in effect made a party to the insurance contract 
and may enforce the same in his own name." 

In view of the statutory provisions above cited, we are of the opinion 
that the Board is vested with jurisdiction to render an award either in 
favor of or against an insurance carrier. 

(2) In our opinion, this Board has the right to determine whether or 
not an instrument purporting to be a release is to be enforced as such, 
and it was so held in Cianti vh. Mt. Whitney Power and Electric Com- 
pany (determined by this Board on February 7, 1913), where the Board 
considered an instrument purporting to l>e a full release and awarded 
compensation despite the admitted execution thereof. It was there 
stated that, in the settlement of disputes arising under the compensa- 
tion act, the Board is vested with the same power and discretion com- 
monly exercised by juries in the trial of damage suits, as well as with 
certain of the functions of the court, and that the right of a jury to 
imiuire into a purported release and to enforce it according to its 
tenor or to refuse so to do is fully recognized by the courts of this state. 
(Citing in support of this statement. Smith vs. Orrkhntal S. S. Co., 99 
Cal. 462, and Davics vs. Diamond Carriage etc. Co., 164 Cal. 61.) The 
mere fact that under section 28 of the act the parties are authorized, 
after the happening of the injury, "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 siich injury" docs not mean that the 
Board is deprived of the right to construe an instrument purporting to 
be a release, or of the right to ini|uire into the fads surrounding the 
execution thereof. 

In the opinion of this Board, the methods and practices of adjusting 
claims for damages should have no part or place in the adjustment of 
claims for compensation. Such claims should be adjusted as claims for 
wages, and when the amount is clearly due, it should be paid without 
any discount. Where a release is made it will he carefully scrutinized 
by the Boar<l and will only be enforced when clearly authorized by law. 

In the case now under consideration, we think that the release is 
clearly authorized by the act; the parties intended to make a compro- 



EMPLOYERS* I-IABILITy ACT nECTSIONS. 131 

raise and settlement, although in a most careless and inaccurate way 
and without any endeavor to ascertain the extent of the liability or the 
amount to which the injured employee was entitled. The parties 
"jumped accounts" and let it goat that, and this Board can not disturb 
a settlement for which there is consideration, merely because one party 
who had notice of his rights tiid not exercise reasonable care in pro- 
tecting tbem. 

For the reasons stated, we are of the opinion that the applicant, 
Charles Nelson, is estopped from now claiming compensation from his 
employer. California Stevedore and Ballast Company, and since any 
claim against the Pacific Coast Casualty Company is based upon the 
existence of a right in his favor against the employer, it follows that 
he is not entitled to an award against the insurance company. 

Dated this 7th day of July, 19i;J. 

A. J. PiLLSBURY, 

Willis I. Morrison, 
Members. 

W. J. French, Comniissimier, dissenting. 

I dissent. In the Bilkmp vs. Mrny-Elwdl Company opinion the 
Industrial Accident Board quoted approvingly these words: "The com- 
pensation act is a remedial act, and, like such acts, should be liberally 
construed." If any other course is followed, the purpose of such legis- 
lation is lost. 

In McAvin vs. City Electric CoMimny (reported herein) the Board 
pointed out that the burden of proof is upon the person claiming com- 
pensation to show that the conditions of compensation exist, and that 
when the proof has been made, the claimant is entitled t« compensation 
unless the employer shall affinuatively show other facts which would 
defeat the right to compensation. 

The California Stevedore and Ballast Company, having, voluntarily, 
agreed to compensate men injured in its employ, and having entered 
into contractual relations with the State of California to that end, it 
seems to me that when there is no doubt of an injury that compensation 
should be paid as a matter of coursi^ 

Charles Nelson has testified that he signed a paper for the sum of 
ten dollars (.$]0.()0) without a detiiiite understanding of what he was 
doing. He is an intelligent man, yet unaccustomed to legal proceed- 
ings, and at a decided disadvantage in a transaction such as the one 
here a subject of controversy. 

Section 28 of the Employers' Liability Law gives interested parties 
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." If this means anything, it means 



CnOO^^Ic 



132 emplovkks' i.iabii.tty act DEcisioNa. 

that the employer and the employee may mutually settle "any liability 
which may be claimed to exist." Nelson had but a hazy idea of this 
liability on the part of the employer. The latter knew all about the 
liability, tlonsetiuently I am at a loss to understand how the parties in 
interest in this case could "compromise and settle" a liability known 
only to one of the parties. If Nelson had been fully informed of his 
rights and had signed the release with his eyes open, then there could 
be no retraction. A law that should be "liberally construed" must 
mete out justice in order to prove its worth. True, ignorance of the 
law is no excuse, but section 28 is predicated upon a mutual under- 
standing that was not present when Charles Xelson signed the paper 
laid before him. 

M. M. Kahn, cashier and paymaster of the California Stevedore and 
Kallast Company, testi6ed that he told Nelson of the contents of the 
document. Nelson 's testimony is to the contrary, so that the Board is 
unable to determine that point by evidence. 

The Pacific Coast Casualty Company gave Kahn the sum of ten 
dollars ($10.00) to give Nelson as a settlement. No attempt was made 
to ascertain the in,iured man's condition or the duration of his injury, 
if he had recovered. Surely this is not the way to settle compensation, 
either under the letter or the spirit of the law now on the statute books. 

In the Egiato Vianti vs. Ml. Whitxr;/ I'niier aiul Electric Covipaiuf 
case, the Hoard unanimously set aside a release and considered it as a 
receipt. While the circumstances were different, yet the main conten- 
tion is the same. The opinion in the Cianti case says: "Shortly after 
the termination of his total disability Cianti was required to sign a 
release from all further liability as a condition precedent to receiving 
the sum of twenty-eight dollars and twenty cent-s ($28.20) due him for 
compensation for the three weeks of total disability at the conclusion 
of which he had resumed work, although not entirely recovered." Sec- 
tion 28 is ijuoted to ('ianti's advantage, and these words are usi'd: 
"There is no evidence that any attempt was made to instruct the appli- 
cant in his legal rights under the compensation act. This point de-serves 
emphasis bt^cause of the disadvantages to which men who have little or 
no knowledge of the English language are in such cases subjected. 
They can not 'compromise and seltle' a liability unless they know what 
liability exists in their favor," These words from the Cianti opinion 
apply with equal force in the Nelson case, especially as Nelson is a 
foreigner, like Cianti, and both were at a consecpient disadvantage. 

Inasmuch as Charles Nelson was injured while in the employ of Cali- 
fornia Stevedore and Ballast Company, that he is a man who was 
Kahn, as a reliable worker, and the essential faets are ail admitl,ed, 
I am unable to agree with my fellow meuibei-s on the Board. There 
referred to in complimentary terms by the cashier aud paymaster, 



EMPLOYEBS' LIABILITY ACT DECISIONS. 13:( 

appears no good reason to my mind, considering the law, the evidence, 
and bearing in mind decisions rendered that have some bearing on this 
case, why Charles Nelson should not be awarded compensation during 
the period of his incapacity. 

Will J. French, 

Member 



(No. 48_July 21, 1913.) 

(Chapter 399, Laws 1911.) 
EMMA E8TK1'. .\ ppUi-anI, vs. CITY OF LOS ANGEI.ES, Drfindant. 

The applicant is the widow of Harrj' Estep, who was accidentally 
killed September 14, 1912, while in the employ of the Board of Educa- 
tion of the city of Los Angeles. The application was filed July 7, 1913. 
The defendant city had not elected compensation as provided by 
chapter 399 of the Laws of 1911. The Supreme Court of the State of 
California decided, on \oveinI>er 20, 1912, in the case of Fred Miller vs. 
A. J. PiUxbury el al., 164 Cal. 199, that the state was not subject to the 
compensation provisions of the law without its election to become sub- 
ject thereto. As that decision was determinative of the <iuest!on of 
jurisdiction in this case, the application herein was dismissed for want 
of jurisdiction on July 21, 1913. 

Ika B. Cross, 
Sccrctanj. 

(No. 34-^July 23, 1913.) 

(Chapter 399. Laws 1911.) 

J. E. LKIiEE, ApplU-aiit. vs. LACY MAXfFACTCRING COMPANY (a cobpo- 

RATION), m^leudaol. 

I'EBUAKENT PABTIAI. DIMABII,ITY^IX>8S Of EYE OFFER OF EMI'IXJVMENT. — Thp 

aliillt; of Bn prnploype to coniiii'tp iti on o|ij>n labor market in p^rmancnlly and 

subHrnntlntl.v dlminishcii hy thp Ionh of an cyf. nnd. even wilh tlii- PXPrcisp of tPH- 

Honablr dillRenfe. it is probable that he will not bo able (o earn us much after Ihe 

accident as he <1i<1 prior thpretn. The general rule is nol (-haDged by Ibe offer 

of the employer to give him employment al the Ramc waeen earned by him prior 

lo the aecideot. ( Follow ins Vhriat \n, I'ari/ir Tclriihone and TrUfiraph Vom- 

pa»U. tepaneA herein.) 

Application for compensation for loss of an eye. The facts are stated 

in the opinion. Compensation was awarded in the sum of $1.56 a 

week, covering a period of fifteen years, as for a permanent partial 

disability. 

J. K. Legce, in propria persona, for Applicant. 
Shai)klaiid d- Cliniullrr, for Defendant. 
J. E. Legce. the applicant herein, is hy trade a setni-skilJed steel 
worker and was employed at driving rivets, calking, etc., by the Lacy 
Manufacturing Company, a corporation, the defendant herein, whose 



VM KMPT.OYKRB' LIAIUl.ITY A(7F DBCISIONfi. 

principal place of business is Los Angeles, California. His average 
annual earnings were $8;i2.O0 an<l his weekly earnings, $16.00. 

While engaged in tank construction near Fellows, California, on the 
2f)th day of January, 1913, Legee was put to work riveting. A number 
of the slabs were not strongly taeked down and the holes for the rivets 
were not in good shape, and Legee was using a steel drift pin about 
eight inches long. When he hit this pin with his hammer it flew hack, 
striking his left eye. 

A few days after the aeeident Legee was taken to a hospital in Los 
Angeles and the eye removed, all necessary medical and surgical treat- 
ment being promptly furnished to him at the cost of his employer. 
Some two weeks after the operation a glass eye was fitted, and by that 
time he had fully recoveretl from the effects of the operation and was 
able to perform physical labor, although it would probably take from 
six months to a year for the remaining eye to adjust itself to the work 
of both eyes. 

Logee's claim for compensation because of a permanent partial dis- 
ability is resisted by the defendant corjioration on tlie grounds that, 
since he is now physically able to do the same work that he did before 
the accident, it can not bo said that he has suffered a permanent dis- 
ability within the meaning of the act. 

In support of this contention, William Lacy, one of the officers of the 
defendant eorporation, testified that the defendant had in its employ- 
ment two men with only one eye, that these men were engaged in 
substantia 11 J' the saiue work as was done by Legee at the time of the 
ueeident and that they had been eoutinnously employed by the defend- 
ant eorporation for twelve and five years, respectively, and that the 
defendant corporation was willing that Legee should eome back to work 
at any time at the same wages that he earned prior to the accident. 

In Christ vs. Pacific Telephone and Telegraph Company (reported 
supra, page 26), where we held that the loss of an eye was a permanent 
disability within the meaning of the act, we laid down the general 
principle that a workman is entitled to compensation under the act when 
it appears that, by reason of the accidental injun,', his earning capacity 
has been diminished, regardless as to whether or not, after the injury, 
be is physically able to follow his former occupation. We there stated 
that ability to earn is mainly dependent upon 

(1) Unimpaired functional power of bodily organs; 

(2) Technical knowledge and skill to carry on the vocation ; and 

(3) The ability of the individual to compete in an open labor 
market, and that, while the functionary power of the bodily organs, 
or the technical knowledge of the applicant, was not in any way 
diminished by the loss of the eye, still it is unquestionably true 
that employers, as a class, generally discriminate against a man 
with onlv one eve in favor of a man with unimpaired vision 

Goo'^lc 



BMPLO^KRS' LEABIUTT ACT DECISIONB. 135 

Since the ability of the individual to compete in an open labor market 
ia permanently and substantially diminished by the loss of an eye, it 
follows that, in the exercise of reasonable diligence, he will probably 
not be able to earn as much after the accident as he did prior thereto 
and, therefore, that he is entitled to compensation under the act. 

The fact that Legee's employer is willing to give him employment 
at the same wages as earned by him prior to the accident does not 
change the general rule. The test to be applied as fixed by section 9 (d) 
(2) of our act is the amount which the injured employee in the exer- 
cise of reasonable diligence will probably be able to earn after the acci- 
dent, and this probable earning can not be measured by the amount 
that his own employer might be willing to pay him. In this case we 
have fixed the probable weekly loss of earnings for the permanent 
partial disability at two dollars and forty cents ($2.40) and have 
allowed the applicant sixty-five per cent of this amount, or one dollar 
and fifty-six cents ($1.56) per week during the fifteen-year period 
fixed by the aet. 

A. J. PiLLSBL'RY, 

Willis I. Morrison, 
Members. 

Note. — On Augiial T, 1913. the appllcanC petitioned for a revlevr of the flndlnss 
iind award rpnderfd by the Board and on Aufni.sl 8, 1913, the Board entered llH 
order InatructliiK Its Becretary to prepare and tranamft a certified copy o" " 



(No. 47— July 23, 1913.) 

(Chapter 399. Laws 1911.) 



Duration of DisABtLiTY— Concubmnb Caiises ov Dia ability— Impaired Physical 
Condition^IIernia. — Where au employee suffered an sceidental injury to his 
back, and. b.v reason of tite same acc-ident, suffered an aggravation of a direct 
inguinal hernia oF long standing, so as to cause the period of disability to l>e pro- 
longed by a necessary operation to cure the hernia, he is entitled to compensation 
for the full period of disability resulting from both causes, under the well settled 
principle thai, under the compensation law, employees take with them into their 
employment any physical infirniities which they may possess at the time of 
entering such employment, and that the employer accepts tliem as they are, sub- 
ject to the risks of their impaired physical condition ; but the determining factor 
in each case is the disability actually arising out of and caused by (he accident. 
and when the employee is restored to his former condition, he is no longer 
entitled to further compensation even though he may be totally disabled by a 
pre-existing disability from some other cauru-. 

Medical Tbeatmbnt^Nivtice of Injury.— No notice having been given to the 
employer that the condition of a hernia bad been aggravated by accident, or of n 
claim on that account, and no opportunity having been given the emplojcr to 
provide medical and surgical treatment therefor, the expenses of a nocPKKary 
oiieration to cure Ibe hernia are not chargeable against such employer. 



Coo'^lc 



136 EMI'I-OYEHS' LIABILITY ACT DECISIONS, 

This was an application for compeaBation on account of a strained 
back and the agg^ravation of a direct inguinal hernia of long standing. 
The facts are stated in the opinion. Award was made covering the 
whole period of disability from both causes, in the sum of seventy-five 
dollars ($75.00). 

George E. Yr.nve, in propria pcrsoiio, for Applicant, 
Oscar Sutro, attorney, for Defendant. 

George B. Yenne, the applicant herein, by occupation a carpenter, 
met with an accident at Richmond, California, on the 28th day of 
April, 1913, during the course of his employment by the defendant. 
Standard Oil Company, a corporation. It appears that while he was 
standing upon some iron braces elevated some distance above the floor 
and reaching up to hang a block and tackle, he slipped and sprained 
his back, and at the same time aggravated the condition of a direct 
inguinal hernia from which be had suffered, more or less, for some nine 
years. He complained to his employer of the injury to his back and 
was referred to its physician for treatment. When Yenne submitted 
himself for treatment he complained only of the injury to his back, and, 
although upon a snbse(|uent visit he discussed with the physician the 
advisability of an operation for the hernia and the probable cost thereof, 
he then stated that the hernia was of long standing origin and did not 
at any time report to his employer or to any of his employer's agents 
that the condition of the hernia had been in anywise aggravated by the 
accident. Not l>eing entirely satisfied with the estimate of the probable 
cost of an operation made by his employer's physician, Yenne went to 
the county hospital for the operation and was there operated on suc- 
cessfully by the county physician. 

The applicant now asks for compensation during the entire period of 
his disability and also for the expense which he incurred in securing 
medical and surgical treatment to cure and relieve the hernia. 

It is not disputed that applicant injured his back, as claimed, but it 
is contended by defendant that inasmuch as the hernia was of long 
standing and its condition at most only aggravated by the accident, 
defendant should neither be called upon to pay compensation benefits 
during-the disability resulting from the operation nor the hospital and 
surgical expenses attendant thereon, it appearing that the injury to the 
back rcciuired only strapping with adhesive plaster and a fortnight's 
rest from work. The defendant expressed its willingness tn pay the 
compensation for the period of disability traceable to the strained back 
and to furnish the necessary medical and surgical treatment for the 
injury. 

It is a welt settled principle that, under the compensation law, 
employees take with them into their employment any physical infirmi- 



Coo'^lc 



KMI'WYKRS' LIABILITY ACT DECISIONS. 137 

ties which they may possess at the time of entering such employment, 
aud that the employer aceepts them as they are, subject to the risks 
of their impaired physical condition. If hy reason of this impaired 
physical condition an injury is sustained through an accident, which 
would in nowise affect a normal man, the employer is nevertheless 
liable to the extent that the injury causes the disability, and even 
though the same disability might have resulted in time, irrespective of 
the accident. The determining factor in each case is, however, the 
disability actually arising out of and caused by the accident, and when 
the employee is restored to the same condition in which he was prior 
to the accident, he is no longer entitle<l to any further compensation, 
even though he may still be totally disabled by a pre-existing disability 
from some other cause. 

Mack vs. Pacific Telephone and Telegraph Company (supra, 
page 44). 

Clover, Clayton A- Company, Limited, vs. Hughes (A. C. 242 
(1910) 245). 

M'lnnis vs. Diinsmiiir <£■ Jaekson, Limited (B, W. C. C, Vol. 1, 
page 226). 

Ismay, Imrie «£■ Company vs. Williamson (B. W. C. C, Vol. 1, 
page 232). 
The evidence presented in this case clearly shows that the applicant, 
although suffering a disability at the time of the accident, was still 
able to do the work of a normal man and that, by reason of the accident, ■ 
his hernia was aggravated and the operation made necessary at onee. 
Under such circumstances we are of the opinion that he is entitled to 
compensation for the full period of disability, and this despite the fact 
that it is probable that he would, in any event, have had to undergo 
the operation. 

We are of the opinion that the defendant is not liable for any part 
of the expenses contracted by applicant for surgical and hospital treat- 
ment required on account of the hernia, for the reason that the employer 
did not have notice that any claim was made, that the condition of the 
hernia was in any way aggravated by the accident, and, under the act, 
the emploj'cr is liable only for such expense in the case where he 
neglects or refuses to furnish such treatment after an opportunity so 
to do has been afforded him. 

We do not express any opinion at this time as to, whether or not the 
employer, if he had been notified that the condition of the hernia was 
aggravated by the accident, would he liable in whole or in part for 
surgical and hospital expenses, that is, as to whether or not the expense 
should all he borne hy the employer or pro rata iK'tween the employer 
and employee. 



D.gitizecbyG00glc 



138 EMPLOYEHS' LIABILITY ACT DBCIBI0N8. 

For the reasons stated, we are of the opinion that the applicant is 
entitled to have awarded to hiin compensation during the perioti of 
total disability, to wit, the period of five weeks. 

A. J. PlIJSBURT, 

Willis I. Morrison, 
Members 



(No.46— August 1,1913.) 

(Chapter 399, L^wa 1311.) 
,\fIKE MONTE, Applicant. 

This application was filed July 1, 1913. The applicant suffered a 
broken leg April 26, 1913. He had received compensation \ip to June 
16, 1913, when the defendant refused to pay any further sum, claiming 
that the disability had terminated. On August 1, 1913, prior to any 
hearing, faid cause was dismissed upon the written statement of the 
parties that they had reached a compromise, and settlement had been 
made by an additional payment of compensation in the sum of $28.73, 

Ira B. Cross, 
Secretary. 



(No. 52~August 1, 1913.) 

(Chapter 399. Laws 1911.) 

ALPHONSO BLLl, Applicant, vs. VERMONT MARBLE COMPANY (a cobpo- 

ration), Defendant. 

Accident. — Evidence consideretl and held to establish the claim ot the employee that 

there was an accident. 
Putt to Pay Compensation — No Demand Necessary. — Compensation is pnyablc 

as wages are payable, without demand. The obiigntion to pay is affirmatii-e, as 

much as is the obligation to furnish medical and surgical treatment where the 

facts disclose a case fining liability under the law. 

This was an application for compensation on account of a strain to 
the l)ack. The fiiels arc stated in the opinion of the Board. Award 
WHS made in the sum of $6.02 covering five sevenths of one week, 
together with the expenses of medical and surgical treatment. 
Alphonso EIH, in propria pcrsoita, for Applicant. 

Applicant was employed as a common laborer in the yard of the 
\'ermont Marble (Company, and it was his duty, together with his 
partner, to lift slabs of marble off the ground and set them upon a 
"donkey" for transportation to the jilace where they were to be worked 
into manufactured form. On the first day of April, in lifting one of 
tliese slabs, variously estimated to weigh from two hundred seventy- 
five to five hundred pounds, applicant alleges that he "got a pain in 
his back jik though something snapped." The time hook shows that he 
worked the rest of that day, after wliich he laid off for twelve days. 



EMl'I.OYKHS' IJAIHI.ITY A(rr DECISIONS. ]3t) 

lie then returned to work and so continued until the 12th day of May, 
1913, when, on account of a disagreement as to wages, he relinquished 
his employment with the defendant corporation. On tlie 19th day of 
July he liled his application tor unpaid compensation. The claim was 
resisted on the ground that Elli was not injured, or, if injured, it was 
not while in the employment of the defendant corporation. 

We think that the testimony of the witnesses for the defendant cor- 
poration ck'arly establishes that there was such an accident and injury. 
Witness Charles Sodergrel testified that Elli told him on that afternoon 
that he had hurt his back, hut that he did not report the accident to 
the foreman because Elli did not say anything more about it. A day 
or two afterward, when Elli came to the works to pursue the subject 
further, Sodergrel directed him to go to the head office, which he did. 

Foreman Stoddard, a witness for the defendant, testified that he 
knew of the injury at the time and that applicant himself reported it 
to him the second day after the accident. It is also in evidence that 
the accident was reported to Mr. Lyman, the manager, who directed him 
to go and see a physician whose address he gave him. In the absence 
of this physician. Dr. R. Giblwns prescribed for him and gave him a 
certificate setting forth the nature of the ailment and injury. Leaving 
out applicant's testimony entirely, we think the fact of the accident 
and injury well established. 

It is likely enough that had applicant not given up his employment 
with the defendant corporation he would not have made a claim for 
compensation. In fact, he should not have been required to make such 
claim, any more than he would Iw required to make formal demand for 
his wages, flompensation should be paid as wages are paid. The pay- 
ment should be ready to tender on the 8lh day after the injury, or, 
at the latest, when the injured employee returns to work. The obliga- 
tion upon the employer to pay compensation is affirmative — as affirm- 
ative as it is for him to furnish needed medical or surgical attention — - 
and when employers cotne fully to understan<1 their obligations under 
compensation laws, all such cases as tl)e one under consideration will be 
settled betwwn emjiloyer and (employee, without delay or cost to either 
party, and will not needlessly take up the time of this Board. 

A. J. PlLLRBUBY, 

Will J. French. 
Willis I. Morri-son, 
Members. 



D.gitizecbyG00glc 



140 EMPLOYERS LIABILITY ACT DEC! 

{No. 42— August 2, 1913,) 

(Chapter 399. Lrws 1911.) 
F. C, MERRILL. Applia 



NoTK-B OF iN-JdBY — Knoivijhmjb of INJUBV.— AlthoUKb forma] notice of an injury 
to ihp emp1o)*?r is not (rivon as provided by section 10 of chapter StW of the 
I.nws of ]!)11. the omiHsion to give sucli notice ia immaterial, where the emgiloyeu 
taken up the subject of treatmfot for the Injury with the foroman uf the dpfenil- 
ant, un<ler wliom he worked, within the thirty days prescribed bj' law, and it 
appears that bia failure to give such notice was not through intent to mislead 
the employer and the employer was not, in fact, misled thereby. 

MEDICAL AND SURQICAl: TBEATMB.M^— OnUOATIO.N I'PON EMPI^TEB TO B'UBNISII — 

Demanp Xor XECEaHABY — Opt^BTtiKiTY TO FiBNisii. — SectiOQ 8 ot chaptet 305) 
of the T^^nwR of 1!>11 files u|iod the employer an affirmative obliiration to fumiish 
the medical and siirRical treatment and other Items therein npecilied. No formal 
demand for such treatmcDt is required. A reasonable opportunily to furnish it 
Is all that is required, and inaction on the part of the employer, after knowledEC 
of the injury and the need for treatment, is tantamount to a refusal to provide 
the same. 

This was an application for coiiipeiisatioii on account of bruised legs 
below the knees, and for th<^ expenses of medical and surgical treat- 
ment. The facts are stated in tlie opinion. Award was made in the 
Sinn of 4)43.29, compensation for disability, and i|!69.15 to cover the 
expense of medical and surgical treatment. 

F. C. Merrill, in propria persona, for Applicant. 
Charles W. Slack and Chauncey S. Goodrich, attorneys, for De- 
fendant. 

F. C. Merrill, the applicant herein, is an electric lineman and, while 
transferring some cross-arms to certain poles in the vicinity of San 
Fernando, in Los Angeles County, on the loth day of March, 1913, a 
strong wind blew one of the cross-arms so that it swung around and 
struck him across the shin bones of Iwth logs. The blow was not suffi- 
cient to break the skin, hut only to rough it up somewhat and cause 
some inconvenience during the rest of that day (Saturday). By Tues- 
da.v of the next week the injury to the left shin had become quite 
troublesome, and by Sunday following, the leg was a good deal swollen 
and inrtamed and caused applicant to limp badly. He did not leave 
work on account of his injurj' until Jlondny, March 31st, when he 
reported to his superior. Foreman C. F. Lehman, and told him of the 
accident and injury. He also informed Mr. Lehman that he had 
arranged with his family physician. Dr. Loomis, to go to a hospital 
and have the leg operatecl on. The operation was successfully per- 
formed and applicant was ready to resume work b.v the 10th of April, 
1913. 

Payment of ciunpensalion is resisteil by the defendant on the grounds 
that the disability was caused by disease and not by accident, and that 



employers' liability act IlEClSlOSa. 141 

notice of the injury was not given within the time prescribed by the 
act, and not until May 11, 1913. 

After carefully considering h11 the evidence produced at the hearing, 
the InduHtrial Accidunt Board is of the opinion that the testimony of 
the witnesses for the defendant corporation ftdly establishes the fact 
of injury as alleged by the applicant, and that the only grounds afforded 
for apprehending that the disability might have chiefly arisen from a 
former disorder was applicant's own fear that such might prove to be 
the ease. 

We further regard it as immaterial that applicant did not give the 
written notice to his employer as re(|uired by the act, inasmuch as he 
did take up the subject of treatment for his injury with his superior 
within the legal limit, and that such failure to give such notice was 
not through intent to mislead the employer, and that the defendant 
corporation was not misled by such failure to report. 

Hence, it becomes evident that applicant is entitled to compensation 
for two and five sevenths weeks of temporary total disability, amount- 
ing to forty-three dollars and fifty-seven cents ($43.57). 

When we come to the issue of reimbursement for moneys expended by 
the applicant for medical, sui^cal and hospital treatment the issue is 
not so easily n'solved. Applicant did not in terms demand that needed 
medical and surgical treatment be afforded him at the cost of the 
defendant eorporstion. On the contrary, he merely informed his supe- 
rior of the accident and injury and told him of arrangements he had 
made for surgical and hospital treatment provided he could obtain the 
needful leave of absence. On that occasion his superior, Mr. Lehman, 
told him that "the I)est thing he could do was to go ahead if he had 
made arrangements." At the same time Mr. Lehman expressed the 
opinion that the company should not be held liable for compensation, 
inasmuch as applicant had not reported the accident as re<|Hired to do 
by the rules of the company. 

Liability for couipensjition is not dependent upon the rules of the 
employing person or corporation, but upon the rules re(|uired to !«■ 
oltserved in the law itself and, as stated al>ove, the failure to give the 
written notice provided in section 10 of the act is immaterial. 

Section 8 of the act provides, as a part of the compensation payable 
under the act, for "such me<lical and surgical treatment, medicines, 
medical and surgical supplies, crutches and apparatus as may reason- 
ably be reijuired 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. (In- samr to be provided by the employer, and in 
case of his neglect or refusal seasonably to do so, the employer to be 



D.gitizecbyG00glc 



142 EMPLOYBHS' LIABILITY ACT DECISIONS. 

liable for the reasonable expense incurred by or on behalf of the 
employee in providing the same; proviiled, howfcr, that the total 
liability under this subdivisiou shall not exceed the sum of $100.00 " 

The obligation iipcn the employer to furnish such treatment is affirm- 
ative. It is both an obligation and a right. There is no need that an 
employer, onee having been informed of an injury to one of his work- 
men, should sit inactive awaiting a formal demand upon him for treat- 
ment. Such action on his part would certainly constitute neglect, if 
not being tantamount to a refusal to furnish sueh treatment. It is suffi- 
cient for him that he have notice of the injury and the need for treat- 
ment. 

The applicant in this case gave the employer's representative verbal 
notice of the injury and of the need for treatment. He even went so 
far as to ask his superior, Mr. Ijehraan, if the company had a doctor, 
and was fold that he thought it had not. Applicant then told him what 
arrangements he had made for such treatment, clearly tentative and 
subject to approval or disapproval by the company's representative, 
and that representative told him that the best thing he could do, inas- 
much as he had made the arrangements, was to go ahead and have 
the work done, which he did. If applicant had gone ahead and had 
the treatment without first consulting his employer's representative, 
and without giving such representative opportunity to assert the em- 
ployer's affirmative right to supply such treatment, the ease would 
stand very differently, but that opportunity was all, in the opinion of 
this Board, that the defendant had a right to insist upon. In our 
judgment, he waived the right, and the defendant employer is liable for 
the reasonable expenses of sneh treatment, to wit, sixty-nine dollars 
and fifteen cents ($(19.15), making the total compensation due and pay- 
able in this case one hundred twelve dollars and forty-two cents 
(*112.42). 

A. J. PiLISBUET, 

WuJ. J. French, 

Members. 

CONCURRING OPINION. 

I concur in the award rendered in favor of the applicant herein, 
altliough 1 have some doubts as to his right to recover from his employer 
the exj>ense incurred for medical and surgical treatment. While I do 
not think that the employee must make a formal demand upon his 
employer for medical and surgical treatment, still, as we said in Christy 
vs. Standard Oil Company (reported hei-ein) : 

"While section 10 of the act gives the injured workman thirty 
days afler the happening of the injury in which to serve the notice 
re(|nired by the act. good faith and public policy require that he 
report his injury to his employer, as soon as it is known that medi- 



employers' l.TAHILITY ACT DRnslONS. 143 

eal or aurgical attention will be required. Except in eases of emer- 
gency, the employer can not be charged for medical and sui^cal 
expense incurred by applicant, unless he has notice of the injury 
and thereafter neglects or refuses to furnish the required treat- 
ment." 

Where there is a (juestion as to whether or not the injury was caused 
by accident and it is not reported for some days after the accident, I 
do not thinit that the employer should be charged with neglect or 
refusal to furnish the ref|uired treatment, unless there is an emei^ency, 
until he has had some opportunity to investigate to see whether or not 
he is liable. 

In the matter now before us. however, the agent of the employer in 
discussing the injury with applicant prior to the operation, plainly 
indicated that he did not believe that the employer was liable. If a 
demand for treatment had been made in express terms, it would not 
have been furnished by the employer. In my opinion, the statements 
made by the agent of the employer are e<juivalent to a refusal to furnish 
treatment, and under such circumstances I think that the employer 
should be held liable for the necessary medical and surgical attention. 
Willis I. Morrison, 
Mftnhri: 



(\o. 51— August 4, 1913.) 

(Chapter 399. IjinB 1911.) 



J. A. BRADY, ApplioBtit, vs. STANDARD OIL COMPANY (a 

Defendant. 

"Compensation" Defineo Undeb Ciiapteb 399, Laws of 1011. — Comi>pnHation ia, 
ID facP, a limited inaurancc by Che employer for the protection of liis employppx 
as a help to tide them over adveretly resulting from iuduatriul necident. It does 
not undertake to actually eompeuBtite injured employees for all that they have 
lost because of their injuries. 

l)KTicBMi.\i,\o Amoi'nt ok Cohpenkation— Pkkmanest IN.II'RY — Re-emplot- 
MENT. — ;Wilh reference to the amount of compensation for permanent injury, 
the test prescribed by the law is what, by the exercise of due diligence, the 
injured employee will probably be able to carti in an open labor market, whieli 
wilt be fixed as of the time of the accident and determined in view of the nature 
and extent of the injury. The measure is tlie loss of power to earn. The fact 
of re-employment by the same employer, after the termination of the first period 
of total disability, at the same or htKlier wagea. ia not conclusive as to the earn- 
ing capacity of the injured employee. 

This ia an application for compensation for a personal injury result- 
ing in permanent disability. The fai'ts are stated in the opinion. Full 
compensation, together with expense of medical attendance, had been 
paid the applicant covering the period of disability. It was determined 



D.gitizecbyG00glc 



144 EMPLOYEriK' T.IABIMTV ACT DECISIONS. 

that fvill compensation had been paid the applicant, as contemplated by 
the law, and the application for additional compensation was denied. 
J. A. Brady, in propria persona, for Applicant. 
Pillsburij, Madison <& l^iilro, attorneys, for Defendant. 

The applicant in this case was a camp cook in the employ of the 
Standard Oil Company in the (^oalinga oil district, and (m the 12th day 
of July, 1912, while aawing meat, the saw slii>ped and cut into the distal 
joint of his left thumb, striking the bone. Blood poisoning set in, 
and although niinlit-al, surgical and hospital treatment was furnished 
without stint, the injury culminated in a permanent ankylosis of the 
terminal joint of the thumb and some stiffness and lack of motion in 
the wrist. 

Applicant was totally disabled from July 12th until the 4th or 5th 
of October, 1912, when he returned to work. Compensation for that 
length of time due him under the act was fully jtaid. tofrether with a 
medical and surKical cost in e.\(es,s of four times the limit fixed h.v the 
terms of the act. 

Applicant continued in the employ of the Standard Oil Company at 
wages either eijnal to or in exc^ws of the wages he was reeeivinR at the 
time of his injury until May 10th or 11th. 19i:i, when, being worn out 
after seven months of continuous ser\'ice, he gave up his position and 
went to Los Angeles to recuperate. 

On the 7th of July, 191:1, applicant made application to this Board 
for eonipensHtion for eight weeks' total disability, from and after the 
14th of May, 1913. and for thirteen dollars ($13.00) per week partial 
disability until such time as he shall have fully recovered from his (per- 
manent) injury or until the total compensation paid him shall equal 
three times his average annual earnings. 

This application evidently was filed through a mistaken understand- 
ing that the Roseberry Liability and Compensation Law undertakes 
actually to "compensate" injured employees for all that they have lost 
because of their injuries, which it does not undertake to do. What we 
commonly call "compensation" is, in the fact, a limited insurance 
which the employer carries for the protection of his employees as a 
help to tide them over adversity resulting from indu.strial accident. 

Mr. Brady has sustained an injury that is both permanent and vexa- 
tious. As long as he lives that immobile thumb .joint will be in bis way 
and his stifl'ened wrist will be a hindrance. If the injury had been 
sustained \nider the law of liability in damage.'^, and proof could be 
made that the injury was the result of the negligence i>f the employer 
or some of his employees, the character of the injury would have war- 
ranted a jur>- in finding for the plaintiff a considerable damage verdict, 



D.gitizecbyG00glc 



employers' liaisility act decisions. 14ri 

but, in this instance, no element of negligence could have been alleged 
nnd no action would have lain against the employer. 

Under the compensation act the measure of compensation is the loss 
of power to earn, and there is not in the transcript of testimony before 
the Board any evidence that applicant has suffered any loss of earning 
power because of his injury. The fact that he continued at work for 
his former employer for seven months after the termination of his first 
period of total disability is not conclusive of this fact. An employer 
may see tit, tor reasons of his own. to take back into his employment, and 
at full wages, one who has suffered injury in his service, notwith- 
standing a permanent inability of that person to earn such full wages. 
The test prescril)ed by the aet is what, "by the exerci.se of due dili- 
gence," the injured employee "will probably be able to earn, the same 
to be fixed as of the time of the accident, but to be determined in view 
of the nature and extent of the injury." and in an open labor market. 

Judged by this standard, there is nothing in the testimony that will 
justify this Board in concluding that applicant has suffered any loss 
of earning power by reason of the injury. The injury will be perma- 
nently vexatious, but there is in the record no evidence to show that it 
will decrease applicant's earning power materially or at all. 

With reference to the eight weeks' total disability claimed from the 
14th of May, 1913, applicant's own testimony showed that he was 
exhausted from overwork and that he did not quit work on account of 
the injury, which had long since healed. There was also evidence to 
show that it has been applicant's custom to lay off from work for two 
fo three months out of each year for purposes of recuperation, and that 
the lay-off taken in May, and thereafter, was pursuant to this custom 
and did not arise out of the injury. 

A. J. PrLI^SBlIBY, 

Wnx J. French, 
Wii-Lis I. Morrison,. 

Mrvibers. 



(No. 37— August 28. ISIH.) 

(Cliapter 399, Laws 1911.) 

vs. (JRE.AT WRSTERX 

■N), l),-l,Hd«nl. 

—Evidence consider«l and hild to <'stablish that thi- niotlicr and minor 
brother of a dpoesH^I employpc w-pre wholly depeodfiit iipun liim foe support, 
and were entitled to share equnlly in dcalli benclils nmountinK to three timps his 
average annual earniDgs. 

This is an application by the dependents, a mother and minor brother 

of the deceased employee, for death benclitM. The facts are stated in 

10— n.'aG t' I 



146 employers' LTABILiTT ACT DECISIONS, 

the opinion. Both applictints were found to lie wholly dependent and 
the award of $4,OriO.0O was ordered divided eriiially between them. 
Arthur Brand, attorney, for Applieant. 
Guy V. Earl and W. 7/, Spaulding, attorneys, for Defendant, 

II ilden .Nelson was an electric lineman in the employ of the Great 
Western Power Company at Sutter Island when, on April 25. Ifll8, by 
accident, he received a high voltage shock of eleetric current, which 
resulted in instantaneous death. Claim was made upon said power 
company on behalf of Mrs. Annie N. Nelson, mother of deceased, and 
Elmer Nelson, a minor brother of deceased, for the maximum death 
benefit allowed under the compenttation provisions of chapter 399 of the 
Laws of 1911, on the ground that the applicants were, and for five years 
last past had been, wholly dependent upon said Ililden Nelson for their 
support. The defendant corporation refused to maJte the death benefit 
payments demanded on the grounds that the applicants were not wholly 
dependent upon the deceased employee for their support and that, if 
they were, they are not entitled to the maximum death benefit allowed 
under the compensation act or to more than three times an average 
annual wage of $1,200.00. Applicants thereupon appealed to this 
Board for an adjustment of the controversy. 

AH the evidence introduced on the issue tended to show that the 
applicants herein were, as allcfied, wholly dependent upon said Ililden 
Nelson, deceased, for their support and for five ye.^^s last past had been, 
and this Board so decided. 

The evidence on the issue of average annual earnings was conflicting, 
unsatisfactory and inconclusive and, taken as a whole, did not justify 
this Board in determining that such annual average earnings could not 
reasonably and fairly be computed in accordance with the provisions of 
subdivision (a) of section 9 of chapter 399 of the Laws of 1911, 
i. e., at 300 times the average daily wage of fonr dollars and fifty 
cents, the union scale of wages admittedly paid to linemen by said 
employing corporation. Therefore, this Board found in its findings 
of fact, that the average annual earnings of said Ililden Nelson were 
$1,350.00 and that the total deatb benefit payable by said defendant 
corporation is $4,050.00. 

A. J. PlLUiBURY, 
Wn.I, J. PRE.S-C1I, 

Mrmhrrx. 



D.gitizecbyG00glc 



EMPLOYERS LIABILITY ACT DECISIONS. 147 

{No. 53— Septpmber 2, 1913.) 
(Chapter 399, Uiwa 1911,) 
MRS. MARY B. BESS, Applicant, vs. BROWN STEIN-LOU IS COMPANY (a 
CORPORATION ). AND THE FIDELITY AND CASUALTY COMPANY OF NEW 
YORK (a corpobatior), DefendaiiU. 

Extent of Injury — Pbbiod of DiaiBiuTT — Stipulation.— Where the extent of 
the iojury to the employee ie the only question In controversy, nnd the partipa 
o^ree that this fact shall be determined by reference to a physician, the endinj; 
of Buch medieal referee is eonciusire of the fact as of the time the fiDdiug is 
made. In dcterminiag the time at which the disability terminates. Che Board 
may rely upon the Btatement of competent physiciaus that no evidence of injury 
apjieariil at a specified time, and may take thai dale as tlie time of the termina- 
iLiin of disability, in the alisence of further teHlimouy. 

This was an apptifiifion for compeiiHation for personal injury. The 
fat'ts are stated in the opinion. Applicant was awarded the siim of 
$15.60 as di.sability indemnity for three weeks, and, in addition thereto, 
the reasonable costs and expenses incurred by the applicant to cnre and 
relieve her from the effects of the injury, evidenced by proper vouchers 
and within the limits prescribed by section 8 of chapter 399 of the Laws 
of 1911. 

Mary K. Bess, in "propria persona, for Applicant. 
C. B. Cornell, examiner for Fidelity and Casualty Company, of 
New York, for Defendants. 

Applicant was employed as a machine operator in a. shirt and overall 
factory in Los Angeles and, while passing to the back of the room for 
her work, her feet became entangled in some string and she felt to the 
floor, breaking one of the metaearpal bones of the right hand and 
suffering some contusions of wrist and hand. A disagreement arase 
between herself and her employer as to (he nature nnd extent of her 
injury and she made application to this Board for an adjustment of 
the (lontroversy. 

At the hearing it developed that the only point in issue was as to the 
nature and extent of the injury and, by stipulation between the parties, 
it was agreed that that issue should be submitted for determination to 
some physician of this Board's selection. Dr. James L. Whitney was 
selected and after examination reported in substance that there was, on 
the day of the examination, August 20, 1913, no physical evidence of 
any disability whatever, except that she did not fully flex the right 
fifth finger. This must be accepted as conclusive of the fact at that 
date. 

Applicant was injured on the 24th of Ma.v, at which time there was 
no (jnestion that she was disabled. It therefore remaiiLs for the Board 
to determine when such disability ceased. The Industrial Accident 
Board has no occult method of determining such i.ssnes. It must rely 
upon such medical testimony as may be available for that purpose. ,. 



148 EMrLOYElis' LIABILITY ACT DECISIONS. 

Mrs, Bess' own physician. Dr. Prank Thomas, of 48 Weston street, 
Ijos Angeles. gHve it as his best judgment tluit the disability might last 
from four to six weeks from the time of the injury, but he did not see 
her after June 1st, and his evidence on this point is valuable only a^ 
establishing a probability as to the time of recovery. 

Dr.- Carl Kurtz, a physician designated by the defendant Fidelity 
and Casualty Company, stated, under date of June 20, 1913. that an 
examination held on that date disclosed no evidence of an injury and 
the Board therefore feels warranted in fixing that date as the date of 
the termination of the disability. 

Dr. Kurtz found on the part of applicant a tendenc,v to exaggerate 
her symptoms. Dr. Whitney reported she wa.s apprehensive of her 
ability to got full use of her hand, but he believed this apprehension to 
be without foundation. It i.s a matter of common knowledge that it is 
only by use of an injured member that it can return to its normal con- 
dition. We think that if applicant will use her hand reasonably she 
will find that any apparent disability will quickly pass away, wherea.s 
noniLse would continuf such disability indefinitely beyond the physical 
cure. 

The records show that both defendants joined in this application, 
were informed of the accident within a few day.s of its occurrence, 
inasmuch as the law calls for compensation to be paid on the eighth day 
after the injured employee leaves work, niid weekly thereafter, no good 
reason has been shown for the neglect to pay until such time as further 
payments wonld have properly become a matter of controversy and sub- 
ject to adjudication by the H()ard. 

A. J. 1'lLL.SBCIRY, 

Will J. French. 

Mrniber.i. 



(No. 57— September 4, 1913.) 

(Chapter S99. Lawe I91I.) 
GOTTLIEB BR.ACKHOC, Applica»l. vs. MACAI'LAY FOU.\[>RY COMP.VXY 

(a corpobaticin ) . Itrf aila t 
Dismissal — N'otice — Kmpi.otek Not Siiuect to t e 
SM^IiuQ {2) of.chRpttT Sin) of (he ijiws of I 11 
sulijoot lo the compensntlou iirovisinus of th la 
hire watt made ia advnnre of the eWllon of li m lo r o Itecome subjvi;! 
therptu, unlpsd, without tcivinic uotk'C to the con rar he reuia ns in the sen'iiv 
of Buch em]iloyer for Ihirtj days after tlie enpoje ha so elpttod. 

Application for compensation for the loss of an eye. The expenses 
of medical treatment were paid by the employer. The application in 
this case is dismis.sed, for the reason that the employee was not subject 

to the eompeiisation provisions of the law. 

Ira B. Cross, , 
Secrclar^ ' ^ 



EMPLOYERS LIABILITY ACT DECISIONS. 

{No. 55— September 6, 1913,; 
(Chapter S99, lawa 1911.) 
WIIXIAM BUTLER. Applicant, vs. PACIFIC- WAKEFIELD COMrANY (a 



TAKV (ji 

I>isABiLiTT Indemnity — Limitation of Same — Medical Aiteni>ancb-— Em ■ 

ployeb'3 Ui;tt.— Disabililj- indemnity, under compensation laws, must be 
Itmiled to cover oaly Huch disnbility aa reHulls from the accident. It is the thity 
of injured pcrBonH, under treaimeut of pliyaician or surgeon, to follow instru<^ 
tions and cooperate in the fulleHt manner to the end that the medical attendance 
furnished by employers shall terminate the disability of the injured employee 
and that his injury may not be imiiuly prolonged to the employer's cost. 

This is an application for compensation for a personal injury. The 
t&cts are stated in the opinion. Applicant had been paid the sum of 
$45.00 as compensation, together with the expense of hospital and 
medical attendance. After examination b.v medical referees, appointed 
by the Board, he was awarded additional compensation in the sum 
of $19.29. 

William Butler, in propria persona, for Applicant. 
T. A. Scadden, for Defendants. 

William Butler is a cement worker and on the 22d day of May, while 
wheeling a barrow full of i^ement, a section of the runway aver which 
he was passing broke underneath him. He fell iiito the wreckage and 
was injured about the thighs, legs, ankles and feet, lledical attention 
was immediately furnished him by the defendants and a total dis- 
ability indemnity of fifteen dollars ($15.00) per week was paid him, 
beginning with the eighth day after the injury for a period of three 
weeks, at the end of whieh time the defendant* concluded that he had 
wholly recovered and payments were .itopped. Applicant contended 
that his disability had not ceased, inasnuich as one ankle was stiff and 
he could not trundle his loaded barrow up an incline as formerly. 
There being a disagreement between the parties, this proceeding was 
instituted for the determination of the controversy. 

At the .suggestion of this Board, medical referees were appointed t« 
determine the nature and extent of the disability. The applicant chose 
Dr. A. Raymond of 4356 Missioji street, San Francisco, the defendants 
eho.se Dr. D. B. Plymire, 948 Market street, San Francisco, and the 
Industrial Accident Board selected Dr. Jame.'j L. Whitney, of 240 Stock- 
ton street, also of Han Francisco. These physicians examined applicant 
on August ITi, 19i:t, and determined that, at that date, the disability 
of which applicant complained was mainly the result of flat feet, for 
which the accident was not responsible, and that whatever of disability 
still existed as a result of the accident was practicably negligible. 



D.gitizecbyG00glc 



150 EMPLOTERS' LIABILITY ACT DBOI8ION8, 

It remained for the Industrial Accident Board to determine from 
the testimony when the actual and substantial disability ceased. Appli- 
cant's own physician, Dr. Raymond, testified that when applicant first 
called upon him, the last of June or the first of July, he made a thorough 
examination of his and found nothing the matter beyond flat feet, not 
the result of accident, and a slight stiffness of the left foot which, he 
deidared, could not interfere with any class of work except pushing 
a "heavy load up an incline. Dr. Raymond agreed with Dr. Plymire 
that this condition would have been greatly helped had applicant fol- 
lowed the direction.^ Dr. Plymire had advised for counteracting such 
stiffness. Dr. Plymire, who treated Hi>plicant at the direction of 
defendants from the day of the injury until June 21st, testified that 
he regarded applicant as able to return to work on that date, although 
he did not discharge him as cured, but offered to treat him further if 
need be. Applicant did not, however, return until August 9th, when 
he complained of stiffness in his ankle, yet admitted that he had not 
manipulated his ankle as he had lieen instructed to do. Applicant's 
testimony shows that he went to work on June 30th and has continued 
to work, on and off, since then. In view of this testimony, this Board 
fixeJ^ the termination of applicant's disability as of June 29th, inclusive 
of that day. 

It is the duty of injured persons under treatment to cooperate in the 
fullest manner with the medical attendance .furnished them by their 
emphiyers, to the end that the disability of the injured employee may 
not be unduly prolonged to his employer's cost. There was evidence 
in this ease that applicant had not discharged his whole duty to his 
employer in this regard. It is a matter of common knowledge also that 
persons afflicted with chnuiic ailments, such as flat feet, which have 
not been greatly regarded prior to an injury, after an injury has been 
sustained unwittingly attribute to the injury the disabling tendency 
of the former ailment. That seems to have been somewhat so in this 
case. Disability indemnity, under compensation laws, must be strictly 
limited to cover such disability as results from the accident, and not 
from any other cause. 

A. J. PiLLSBURY, 

Will J. Pbench, 

Members. 



D.gitizecbyG00glc 



EHt'l.OYERS LIABILITY ACT DECISIONS. 151 

(No. 39— September 12, 1913.) 
(Chapter 399, I^wh 1911.) 
KAROLINE ALDINGER. Applicant, vs. RANSOME CONCllETR COMPANY (a 
COBPOBATION), SOUTHWESTERN SURETY INSURANCE COMPANY, and 
WILLIAM F. ALDINGBR and MRS. WILLIAM F. ALDINGER. Dcfrndantt. 

Dependenct — Woman Living in Illicit Relationship With Deceased. — The 
fact oC dep(!ndencj, to be determined under Che provisiona of the Roacberry Act, 
ioToIves an inquiry into tbe entire status of the parties at the time of the death 
as well as of physieal support. Wlicre it appears Chat the applicant was living 
in illicit relationahip with the deceased at the time of his death, though buii- 
ported by him for a number of years, no status of dependeucj can be predicated 
upon the support arising out of such relationship. Dependency must ho 
restricted to those whom it is lawful for tbe employee to support. 

Id. — MiNOB Child of Applicant — Contbibutiohs fob Support. — Where an em- 
ployee promises to support a woman and ber child if the former will live with 
him as his wife, and no marriage is performed, and (he said employee pays to 
the woman all the money used by ber for the support of herself end child, and 
the minor child does not receive any Ssntribution for support directif from the 
employee but looks to her mother, such minor child is not a dependent of the 
said employee and is not entitled to a death benefit if he be killed by industrial 
accident. 

This was ao application for compensation for the death of the 
deceased employee. The facts are stated in the opinion of the Board. 
The applicant was denied compensation for the reason that it was 
found that she was not a dependent within the meaning of the act. 
Karoline Aldinger, in propria persona, for Applicant. 
Ckickerivg & Crocker, attorneys, for Defendants. 

William II. Aldinger was a structural iron worker and, on the 7th 
day of March, 1913, at Sacramento, California, while in the course 
of his employment, was killed through accident. Issnes growing out 
of that casualty form the subject matter of this controversy. 

The applicant herein, who calls herself "Karoline Aldinger," was, 
at the time of the accidental death of said Aldinger, living with him 
as his wife, and for three years last past had been so living, but was 
never married to him. She was at one time the wife of one Carl Miller 
and bore him certain children, one of whom, Emma Miller, was a mem- 
ber of the family of William H. Aldinger and said applicant. Appli- 
cant claims the compensation death benefit for herself and daughter 
Emma, the latter being of the age of eleven years, as dependents in 
fact, of the said William II. Aldinsrer, deceased. Payment having 
been refused by the defendants, Ransome Concrete Company and 
Southwestern Surety Insurance Company, the applicant in.stitnted 
these proceedings before the Industrial Accident Hoard. 

Subsection (3} of .section 9 of chapter 399 of the Laws of 1911, 
defines who are dependents. Certain dependents, such as a wife upon 
a husband and a child upon a parent with whom such child was living 



Goo'^ Ic 



152 KMI'LOYKRS' I.IAIIILITY ACT DPiriSIONS. 

at thp time of the death of such parent, there being no surviving 
dependent i>arent. are eoncliisivf^Iy presuinwl to be dependent, and 
evidence is not admissible on that issue. The act tlien froea on to say 
that, "In all other cases (except those of conchisive dependency) ques- 
tions of entire or partial dependency shall be determined in accordance 
with the fact (of dependency) as the fact (of dependency) may be 
at the time of the death of the emplnyee." It is npon this provision that 
the applicant relies to uphold her claim of dependency upon the part 
of herself and her daughter Emma. 

This at once raises the issue as to what is meant by the cxpres-sion 
"the fact as the fact may be." Does it relate merely to the physical 
clement of support or may the "fact" (of dependency) include with the 
physical element of being fed and housed at dece<lent's cost the legal 
and moral status of the relationship of the parties at the time of the 
death of the employee? This Board is of the opinion that the term 
"fact," as used in the act, involves the entire status of the parties at 
the time of the death of the cmphiyee as well as the (|nestion of physical 
sujjport. 

So far as this Board has been able to learn, there has been no final, 
authoritative and comprehensive judicial determination of what con- 
stitutes dependency, but only what in certain instances does or does 
not constitute such dependency, and this Board will not at this time 
hazard such a definition. Nevertheless, the ease at bar must he dis- 
posed of and, in disprsing of it, it can not come amiss to lay down 
certain principles that may ser\'e as guides in settlinp future contro- 
versies of a similar character. 

In Krtiicr vs. The (!raii<} Loilije, 33 Mo. App. 543, the alleged wife 
of the deceased was not. in fact, his wife and knowingly occupied an 
illicit n'latiouship with him. In that case the court, in defining the 
word "dependent" used the following language: 

"I would iu>t H'strict dependency to thise whom one may be 
IxMind to Knppi\rt, nor yet to those- to whom he ma>- be morally 
))onud. but the term should be restricted to thase whom it is lawful 
for him to support. It is not lawful to support a woman know- 
ingly occupying the illicit relation-ship In which interpleader places 
herself." 

This Board accept.-* the principle thus dearly expr.'sscd as conclusive 
in this case. The "f«ct" as lo the n>)ationship sutisisting between 
KanUinc and William II. AldinsnT. lioceascd. is that it was at all times 
unlawful and contrary lo public policy, and i-ould not 1h' n-Iied on to 
furnish a basis of sulistautivc right of cilher party agjiinst the other, 
and much less against third |iartics. No status of dependency can be 
predicated upon such a n'latiiinsiiip. 



D.gitizecbyG00glc 



KMHLOYERS' LIABILITY ACT RFCISIONS. 15:} 

The status of the applicant's child, Emma Miller, was, of t'onrse, 
different from that of her mother in thnt she wa.s innocent of wrong- 
doing. Nevertheless, we think that the child was dependent for sup- 
port, not upon the decea.sed employee. Aldinger, but upon her mother. 
Whatever th^ terms of the agreement existing between Aldinper and 
Karoline may in fact have been, we are warranted in assuming that it 
must have amounted at least to this: That Aldinper proposAi to Karo- 
line that if she wonld eome and live with him as his wife he would 
support her and her daughter. If this be so, neither the applicant 
nor her daughter were any more dependents of Aldingcr than the.v 
would have been had the applicant hired out to him to serve as his 
housekeeper on similar terms. The illicit and unlawful relation sub- 
sisting between the applicant and Aldinger could have added noth- 
ing to such contract of hire, but, rather, would have taken from it. 
Furthermore, the evidence of the applicant, herself, supported by the 
testimony of certain of her neighbors, was that Aldinger gave his 
wages to the applicant and that she and not Aldinger paid the domestic 
bills, including those incurred on behalf of the support and education of 
her daughter Emma. We hold, therefore, that Emma Miller also was 
not dependent upon William H. Aldinger. the deceased employee, and 
that neither of them has any rightful claim upon the defendant, the 
Ransoms Concrete Company or the Southwestern Surety Insurance 
Company for any death benefit provided by the act. 

With reference fo William F. Aldinger, father of decea.sed, and Mrs. 
William F. Aldinger, step-mother of deceased, who informally and in 
person claimed to be partial dependents of the deceased employee, it 
is sufficient to say that, although duly and properly apprised of the 
hearings and repeatedly admonished so to do, they never introduced 
any evidence in support of their claim of dependency, and this Board 
therefore decides that they were not dependents within the provisions 
of the act. 

A. J. PlLLSBLRV, 

Wii-L J, French, 

Members. 



D.gitizecbyG00glc 



154 KUI'LOYBUS' UABILITY ACT DECISIONS. 

(No. 4.1— September 30. 1913.) 
, (Chapter 399, Laws 1911.) 

GUS MirXER, Applicant, vs. CALIFORNIA STEVEDORE AND BALLAST 
COMPANY (A CORPOBATIOK). ABi> THE FEDELITY AND DEPOSIT COM- 
PANY OF MARYLAND (a cobporatiob). Dcf<:ad««U. 

Evidence— Burden op Proof — Balance of Prodabiijtif:^. — While the burden ot 
proof is upon the applicant to establish afliriDatively tbe fact thnt Ihere was nn 
aeeideDt, yet where the weight of probabilities \n such as to amouat to proof lu 
a moral certaioty, such proof is sulficieut, even in the absenee of any direct 
evidence of the happening of an accident 

MKUICAI. \NP SlTROICAI, TRKATMENT ObLWATION of EMPIWITEE to FUBNIflll. — 

When an injury has been reported to an employer, or to an employee authorized 
to receive such reports, it is the duty of the employer to promptly provide 
nieilical and surgical treatment. DisreRard of this duly givcti rise to a proKiinip- 
tion of neglect or refusal to comply with the law, and the employer is liable for 
a reasonable charge for services engaged by the injured employee. 

This was b filaim for coinpensatioii on account of an infected wound 
vn the ami. The facts are stated in the opinion of the Board. Award 
was made in the sum of i)!44.57 and for medical and surgical treatment. 
Ous Miller, in propria persona, for Applicant. 
Alfred C. Skaife and Guy LcRoy Sterick, attorneys, for Defend- 
ants. 

John Aiigiist Frederick Miller, a stevedore, was, on the 20th and 
21st days of May, 19i;J, engaged in unloading a sugar-laden vessel at 
Crockett, California, in the employment of the defendant California 
Stevedore and Ballast Company. lie worked during the afternoon of 
the 20th and all of the 21st, including one hour of overtime. About 
10:30 a. tn. of the 21st he complained to his associates that his left 
arm was hurting him and showed them that it was swollen and stiff. 
On the morning following he was unable to work at all and immediately 
proceeded to San Francisco, where he sought medical treatment. The 
arm suppurated and applicant was disabled for four and three sevenths 
weeks. He applied to his employer for compensation and was denied 
and therefore instituted this proceeding. 

The defendants resist the demand of Miller on sul^tanlially the fol- 
lowing grounds : 

1. That the injury complained of was the result of an oeeupa- 
tioual disease, coiumonly known as "sugar poisoning," which does 
not come within the provisions of the act. 

2. That no personal injury was accidentally sustained by said 
"Gus" Miller from which a disabilily resulted. 

■i. That it there was an accident and injury it was the result of 
the wilful misconduct of siiid injured employee. 

There was no evidence lo sustain the contention that applicant's 
disability was the result of an occupational disease commonly known 
as "sugar poisoning." "Sugar poisoning" is "dermatitis," an affec- 



employers' liability act decisions. 155 

tion of the skin, a rash or eczema, whereas the evidence shows that, in 
the case of Milter, the infection was deep-seated and attended with 
profuse suppuration. 

The allegation that no personal injury was accidentally sustained by 
applicant raises an issue of great difficulty, inasmuch as applicant freely 
admits that, if he was injured by accident, he was not aware of the 
fact at the time, but contends that he must have been so injured, else 
his arm could not have become infected as it indubitably was. 

The burden of proof is upon the applicant to establish the affirmative 
fact that there was an accident resulting in an injury and that the 
disability complained of resulted therefrom. 

"The party holding the affirmative of the issue must produce the 
evidence to prove it ; therefore, the burden of proof lies on the party 
who would be defeated if no evidence were given on either side," 
C. C. P. section 1981. 

In support of his contention that there was an accident and an 
injury we have the sworn statement of l>r. G. P. Rt^ynolda, of Alameda, 
who treated the arm on the evening of May 22d, that there was an 
abrasion of the outer skin of the arm near the elbow, about one eighth 
of an inch long, and that such abrasion was sufficient to permit infec- 
tion. 

Ernest Ewig, who lodges at the home of Miller, testified that on the 
afternoon of May 22d he looked at Miller's arm and noticed a scratch 
or cut a little below the cllww, 

Mrs. Miller, wife of applicant, testified that almiit noontime on the 
22d of May she examined the arm of Wilier and noticed a scratch just 
below the elliow. She further affirmed that there was no such scratch 
on Miller's arm when he left home on the morning of the 20th, and 
that if there had been she would have noticed it, an affirmation not at 
all conclusive nn<l yet worthy of some consideration. 

We think the evidence adduced establishes the existence of a scratch 
or cut on applicant's arm sufficient to account for the inflection. 

The defendants, by their attorney, urge that even if there was such 
scratch or cut there is nothing to show that it whs received in the course 
of the employment. 

It is, we take it, well settled law that a mere probability will not 
suffice to establish a fact. " Prolmhility is mere likelihood, appearance 
or resemblance. To instruct a jury that they may act on mere prob- 
ability is to instruct them that they may aet on less than convincing 
evidence or without that moral certainty ref|uired by the law." 130 
Ca!., page 8. 

Nevertheless, the chances are a thousand that such a scratch was 
sustained in the occupation, in the hold of a ship, handling hard and 
rough sacks of sugar at the lop of one's speed, to one chance that it 

Goo'^ Ic 



156 EMPI-OYBRS' LIABILITY ACT DECISIONS. 

was sustained as a passenger on the way from his home to the work. 
Heated and sweating at every pore, while working in the hold of the 
vessel, it is no wonder that applicant liid not know when he received 
the scratch or that he received any scratch at all. His essential in- 
tegrity is well exemplified by the fact that he might easily have snpplied 
the missing link of certainty by inventing a time and place for receiving 
the scratch. We hesitate to put a premium upon false swearing by 
insisting that the want of a connecting link, so easily supplied, must 
prove fatal to applicant's claim. 

"The law does not reijuire demonstration: that is, such a degree of 
proof as. excluding possibility of error, produces absolute certainty; 
because such proof i.s rarely possible. Moral certainty only is required, 
or that degree of proof which produces conviction in an unprejudiced 
mind." C. C. P. sectiim 1826. 

"If the circumstances placed in evidence, and the inferences to be 
drawn therefrom, and the presumptions arising thereon, point clearly 
to aa accidental injury, the plaintiff has made out a prima facie case 
and is entitled to a finding in his favor." Jmkin vs. Pacific Insaraiire 
Company 131 Cal,, page 123. 

"That evidence is deemed satisfactory which ordinarily produces 
moral certainty or conviction in an unprejudiced mind. Such evidence 
alone wil! justify a verdict. Evidence less than this is denominated 
slight evidence." C, C. P. section 1385. 

"On leaving his home to go to work on the night of July 17th de- 
ceawid had nothing the matter with his band. On his return the next 
morning at the usual hour he had a crushe*! finger with broken skin, 
which his wife poulticed. Blood poisoning set in and he died." Held, 
that the inference may reasonably be drawn that the accident arose out 
of the employment. Mitchell vw. Glamorgan Coat Company, 9 W, C. 
C. 16. 

"The results of these (English) cases may l)e summed up as follows: 
If an inference favorable to the applicant can only be arrived at by a 
guess, the applicant fails. The same thing happens when two or more 
inferences eijually consistent with the facts arise from them. Where 
the prol>abiiity of one inference, which the facts are capable of sup- 
l»ortiiig, is clearly more prolable than the other, it is open to the arbi- 
trator to adopt this inference. This inference then becomes a finding 
of fact and can not be interfered with by the court above." Judge 
Alfred Henry Ruegg, K. (\. Commentator. 

Confes-sedly, the determination of the essential issue in this ease as 
to whether an accident did or did not occur is a matter of great diffi- 
culty, but in view of the legal gnideposts which have been set up for 
its direction, the Industrial Accident Hoard feels warranted in finding 
that an accident did occur in the course of the employment and that a 



employers' LIABrUTY ACT DECISIONS. 157 

disability indemnity is recoverable therefor. The weight of probability 
is such as to amount to a moral certainty. 

There was no evidence to show that if there was an accident it was 
the result of tlie wilful misconduct of the injured employee, and it is 
improbable that this defense was offered with any expectation that 
there would be any such evidence, hut rather to hold the door open 
for the admission of such evidence if by chauce any should develop. 
Under the procedure of the Industrial Accident Board this precaution 
is not necessary in order to preserve any rights of the defendant, and 
the practice should not be followed. Only those defenses should lie 
alleged in the answer which the defendant expects to establish by 
testimony. If, during the hearing, evidence of misconduct or other 
defense <ievelops, the Board will insist upon sifting it to the l)ottom, 
no matter what is or is not alleged in the complaint or denied in the 
answer. 

With regard to medical and surgical treatment, this Board holds 
that when an injury has been reported to an employer, or to the em- 
ployee authorized to receive such reports, the employer must promptly 
designate the treatment that is to be prescribed or be held responsible 
for treatment obtained by the injured employee. The obligation upon 
the employer to provide the treatment is affirmative and can not be 
slept on without a presumption of waiver, neglect or refusal. Em- 
ployers should instruct their foremen and bosses in advance what to do 
in such emergencies. Inasmuch as the employer in this case took no 
affirmalive action as to medical treatment we hold the employer respon- 
sible for a reasonable charge for such services. 

A. J. PiLLSBURY, 

WHjL J. French, 

Members. 



(No. 58— October 6, 1913.; 
(Chapter 399. Liawa 1911.) 
SPRECKELS ilBOS. COMMKRCIAL COJirANY U 

va. FRANK U. SIOOKi:. Drfratlanl. 



Defenses of Employeb^Xe«ilioenck Xot a Pkfi 
of lUll. known as thp Ro^berry E]n|)]oyi>ni' 
injured emiiio.vee [ontribiilinK to hJH Hi'i-iilenl is not a ilfftinsf. 
The facts are stated in the opinion. An award was made in favor of 
the defendant in the sum of eighteen dollars and seventy-five cents 
($18.75) in addition to sixty dollars ($6(1) previously paid as compensa- 
tion by the applicant. 

B. 0. Dilworth, attorney, for Applicant. 

William G. Mirow, of Mirow & Duschnes, attornej-s, for Defendimi.-, 



158 employers' liability act decisions. 

Fraiik IT. Moore was injured on June 17, 1913, while in the employ 
of the Spreckels Bros. CommerciHl Co., in the city of San Diego, Cali- 
fornia. Prompt medical attention was furnished Moore by the Spreckels 
Bros. Commercial Co. and the doctor's services were continued until 
the injured man recovered, inasmuch as there was a dispute concern- 
ing the amount and duration of the compensation payahle, the applicant 
herein filed an application for adjustment of claim. The sum of sixty 
dollars (!|i60} was paid to Moore, and he declined an additional amount 
of thirty dollars (i1«:lO), whieh. if accepted, would have paid for longer 
tlian one week after the dal* of the doctor's discharge. 

The injury resulted in the loss of the little and fourth toes of the 
left foot down to the first joint on each toe. The nuestion at issue per- 
tained to the loss of earning power. During the hearing held in San 
Diego reference was made to negligence as the cause of the accident, 
but the compensation provisions of the Employers' Liability Act, 
chapter ;t99 of the Laws of 1911, govern accidents, "either with or 
without negligence," provided both the employer and the employee ■ 
have accepted compensation. In this case both the Spreckels Bros. 
Commercial Company and Frank II. Moore had so elected. 

Dr. J. C Hearne, for the applicant, a physician and surgeon of forty 
years' standing, tratified that the function of Moore's foot would not 
he interfered with by the accident, and that he would not suffer incon- 
venience or pain as a result. The doctor added that he did not believe 
the entire toss of the two toes would impede walking. 

Dr. II. G. Leisenring, a physician and surgTOn of thirty years' stand- 
ing, was called in to make an examination of Moore's foot. His attend- 
ance was reijuested by Dr. Hearne. Dr. Leisenring corroborated the 
testimony of Dr. Hearne. He did not think that the injury would affect 
Moore's employment, and that he (Moore) was able to work. This 
examination took place at the hearing, and the toes appeared to have 
healed perfectly, and, l)eyond the loss of the ends and the nails there 
wax no evidence of disability. 

\o medical testimony was presentetl in behalf of the defendant. 

W I. Mundell testified that about the middle of August Moore asked 
for employment^ stating that the doelor had "turned him loose." On 
September fith the defendant worked, and failed to return to his work 
on the following llonday, offering no good excuse for his neglect. At 
this time he told C 0. Mundetl, foreman on the Santa Fe wharf at 
San Diego, and an assistant to W. I. Mundell, that his foot was all 
right. 

When the law is taken into consideration, and the testimony of the 
doctors reviewed, it is evident that Moore was poorly advised. If he 
had aeceptc'd the amount tendered bim by the Spreckels Bros. Commer- 
cial Comjiany he would have received more than is awarded by the 



BKPLOYERS' LIABILITY ACT DECISIONS. 159 

Industrial Accident Board. Though the doctor discharged Moore on 
August 11, 1913, another week's compensatioii has been allowed because 
there was testimony that the foot would he tender for that additional 
period of time. It is to I>e expected that after such an accident the 
foot would be sore for a while, but the medical testimony showed that 
exercise and bathing would soon remedy that condition, and that no 
permanent results would interfere with the defendant's ability to fol- 
low his occupation. 

A. J. PiLLSBUKT, 

Will J. French, 
Harris Weinstock, 
Members. 



(No. 60— October 9, 1913.) 
(Chapter 399, Laws 1911.) 



AvEBAOE Anhuai. Eabninos — Seasonal EMtLOYHBiVT. — !□ casea of injury suffered 
by employees engaged in seasonal occupations, Cbe method oE computiDK avenige 
aunuai earulugs, under the strict tetter of the provisions of section 9 of chap- 
ter 309 of the Laws of 1911 does not seem adiHiuate. but, oousonaiit with the 
general purposes and spirit of the law, the principle is deducible that the average 
annual earnings of enployees engaged in seasonal occupations sbaii be taken at 
such Bum as sliaU reasonably represent the average earning capacity of the 
injured employee in the eniploymeuta which he has followed during tbe year. 

This is an application for compensation for personal injuries result- 
ing in the loss of the left foot, by amputation, between the knee and 
the ankle. The facts are stated in the opinion. The applicant was 
engaged in a seasonal OL-ciipation, i. c, lumbering. The employer paid 
the expenses of medical attendance, and hospital treatment, together 
with compensation in the sum of $45.50. The applicant was awarded 
additional compensation in the sum of $146.25, accrued to the date of 
the award, and the additional sum of $2,700.O(J, payable in equal weekly 
installments of $3.75 each, until the further order of the Board. 

John Brousset, in propria persona, for Applicant: 

Ira B. Bennett, president, for Defendant. 
John Brousiiet, the applicant in this cause, entered the employ of 
the defendant corporation, the Frtsno Flume and Lumber Company, 
on the first of May, 1913, at its lumlwring camp in the Sierra Nevada 
mountains, serving in various capacities until the 23d of July, 1913, 
when, while employed as a brakeman on a logging train, he fell under 
the wheels of the train and suffere<I the crushing of his left ankle to 



D.gitizecbyG00glc 



1(50 KMI'I-OYERS" LIABILITY ACT DECISIONS. 

SO great a diigree that the injured member had to be amputated between 
the kiiet^ and the aukle. Then? in no dispute or controversy between 
the parties herein as to any material fact in the case exeept as to how 
the average annual earnings shall be calculated. Accordingly that 
issue was presented to this Board for determination. 

It must be confessed that the letter of the statute does not clearly 
determine how the average annual earning.^ shall be determined in 
ctmea where, as in tiiis instance, the employment is seasonal and not 
eontinuon.'s throughout the year. Subdivisions (a) and (b) of sec- 
tiiui i) of the act relate to employments that continue sutjstantially the 
whole of the year, and subsection (c), intended to apply where (o) or 
(/>) can not he applied fairly or reasonably, limits the discretion other- 
wise vested in the IJoard to ascertaining what shall reasonably represent 
"the average earning capacity of the injured employee at the time 
of the injury in the employment in which he was working at such time. ' ' 

In this instance, the employment in the lumbering districts of the 
Sierra Nevada mountains continues from seven to eight months out 
of the year, at the e.^piration of which season all work is closed down 
and remains closed until the next year. It is matter of common 
knowledge also that there are, in California, many other occupations, 
such as hop-picking, berry -picking, fruit-canning, raisin -making, in 
which the season's work lasts fn>m a few weeks, iu some cases, to a 
few months in others, but in which many thousands of persons are 
employed during such seasons at wages often relatively high for such 
short periods as compared with the earning capacities of such employees 
during the rest of the year. 

It would manifestly be unfair to the employer to estimate the average 
annual earnings of persons injured during such seasons at 300 times 
the average daily and often relatively high wage payable during such 
seasons, and it would be as certainly unjust to the injured employee to 
limit his estimated annual average earnings at what such employee 
could earn during the year in such employment when, in fact, there 
is such employment for only a small part of the jear. 

For the reasons suggestc^d it has seeiucd best to the Board to lay down 
the principle that, in seasonal occupations, the average annual earnings 
of injured employees shall he taken at such sum as shall reasonably 
represent the average earning capacity of the injured employee in the 
employments which he has followetl during the year. In no other 
way can the act rationally or reasonably be applied to persons injured 
while emplo\-cd in seasitnal occ-u pat ions, and yet it must be confes.se<l 



D.gitizecbyG00glc 



employers' liability act decisions. 161 

that such iiiterpretatioD of the act is more cunsonant with its general 
purpose and spirit than with the strict letter of the coueluding line of 
subdivision (c) of section 9 o£ said aet. 

A. J. PiLLSBURY, 

Will J. French, 
Harris Weinstock, 
Members. 



{No. 54— October 14. 1!)13.) 

{Chapter 399, Laws 1911.) 

ENRICO SANTTNI. Applicant vs. MAMMOTH COPPER MININf! COMPANY 

OF MAINE (A COBPORATioN ) , Ih-fcttdaiit. 

Xature AND Extent op Injuby — Medical and Suroic.\i, Questions — IItstehical 
Paralysis. — The nature and extent of an injur; is an istiue to be detemiineil 
upon the investtgntjon and testiniouy of expert medical and surBicnl practitiooern. 
and where an employee who suffered a Berious injurj is afBicted with hystericul 
or functional paralyBia, as distinguished from reni or organic paralysis, to sudi 
an extent Ds to make bis disability an actual lotnl disability, he is to be com- 
pensated therefor. 

Malinoebinu — Hysteria — Dibtinotion^Gooi> Faith.^ — The difference between a 
malingerer and a hysteric is that the former claims disability when he knows he 
baa DO right to do so, and the victim of hysteria claims disability in the unshak 
able conviction that he is disabled, medical and surgical experts establishing that 
the injury is just as real to the sufferer as though it actually existed, so thai 
there is proved the requisite element of good faith in making the claim. 

This was an application for compensation for a serious injury to a 
shoulder. The facts are stated in the opinion of the Board. Award 
was made in the sum of $12.50 per week during disability. 
Sullivan, Sidlh-an <& Koche, attorneys, for Applicant. 
Alfred Suiro, attorney, for Defendant. 

Enrico Santini was employed as a tiinberman's helper in the Main- 
moth Copper .Mining Company of Maine at Kennett, Shasta County, 
California, on the 20th of October, 1912, wht^n a fellow worlter suffered 
an axe to fall forty-five feet upon the right shoulder of applicant. 
The blade of the axe penetrated the shoulder, severing the collar bone 
and inflicting a ghft.stly wound. Prompt medical, surgical and hospital 
treatment were given the injured man by his employer and the wound 
healed without infection. Nevertheless, the applicant has not been able 
to use his arm in any degrw and professes as a result of the injury a 
total paralysis of the arm and a partial paralysis of the entire right 
side. He has performed no labor from the date of his injury until the 
(late of this hearing. The defendant corporation paid $11,25 per week 
disability indemnity for 35 weeks and a fraction, or until the total sum 
paid amounted to $3113.75, and then discontinued the payments on the 



Digitizer byGoOgIc 



162 EUPLOYBRS' LIABILITY ACT DECISIONS. 

grouHii that applicant was not totally disabled as claimed, but only 
partially so. Applicant refused to accept a reduced payment and 
instituted this proceeding. 

The only isKue involved in this controversy, if any issue at all is 
involved, is as to the nature and extent of the injury, and that is an 
issue to be determined by expert medical and surgical practitioners. 
Fortunately for the applicant the medical testimony introduced by the 
defendant corporation clearly e.itablishes applicant's claim as to the 
total character of the disability up to the date of the hearing in this 
case. 

At the instance of the defendant corporation, in April, 1913, Drs. 
C. J. Teass, L. Newmurk and H. C. McClenahan, all of San Francisco, 
made an examination of applicant and certified unanimously that the 
case is one of "liysterical monoplegia," that is a paralysis of a member 
not due to organic disorder, but to functional, that is, "originating in 
the mind of the individual." 

On the 15th day of August, 1913, Dr. McClenahan appeared before 
Will J. French, special examiner empowered to take testimony, and 
declared, "The idea that he has paralysis is so strongly rooted that, 
as far as he is concerned, he really has it • • '. I am convinced 
that this is a dear case of hysterical paralysis." 

Dr. C. J. Teass, while admitting that he was influenced by Dr. 
McClenahan 's conclusions, affirmed upon his own behalf, that his con- 
clusion was identical with that of Dr. McClenahan. 

On behalf of the applicant. Dr. Fred W. Lux of San Francisco, testi-. 
fled in substance that, in his judgment, there is or was an organic cause 
for the paralytic symptoms of applicant, but that a strong payehie 
element has been injected into it, and that, whatever the precise nature 
of the drfficutty, applicant is totally incapable of performing manual 
labor. 

Dr. Charles Scaparone, on behalf of applicant testified, in substance, 
as follows: "I do not think the man is feigning. I took special care 
to determine this fact • * • as the case stands he can not use his 
arm, nor would I advise him to undertake any hard labor. My con- 
clusion is that the man is suffering from organic paralysis." 

Out of a superabundance of precaution the Industrial Accident Board 
directed that the applicant be examined by Dr. Milton B. Lennon of 
San Francisco. His essential conclusions arc, in substance, as fallows: 
"A careful examination conducted on two different days convinces 
me that we are here dealing with an hysterical panUysis of traumatic 
origin * • •. It is something beyond the will of the patient • • •. 
He will ultiiriatcly recover. Much will depend Upon his environment, 
his treatment and his frame of mind." 



D.gitizecbyG00glc 



EMPI.OTEBS' LIABILITY ACT DECISIONS. 163 

TVhilo there is somt; differenee «f upiiiioii among the physicians testi- 
fying as to whether or not the paralysis of applicant's arm is wholly 
functional and dnc to hysteria, all agret^ that, up to the time of giving 
their testimony, applicant Santini has suffered a total paralysis of the 
right arm and is unable to perform manual labor, and that he is not a 
malingerer. The difference between a malingerer and a hysteric is that 
the malingerer claims disability when he knows lie has no right to da 
so, and the victim of hysteria claims disability in the unshakable con- 
viction that he is disabled. In the language of Dr. McClcnahan, an 
excellent authority en the subject, "His injury is just as real to him 
as though it actually existed.". 

The defendant corporation, which operates its mines on the seven- 
day system, mistakenly computed Santini 's average annual earnings 
at 300 times the average daily wage, manifestly unjust in thosis cases 
where emplojoes commonly work, not 300 days in the year, but nearly 
or qwite 365. Therefore, the average annual earnings of Santini were 
fixed at $1,000, his average weekly wage at $19.23 and sixty-five per 
cent thereof at $12,50. 

A. J. PrLLSBURY, 

Will J. French, 

Members. 

NOTB.— After the lents as awarded, 

unlll tVbuary IS. 11 layable was made 

lietwi'pn the parlies. ). wlileh wan paid 

by tlif defendant to st M 1914. 



(No. 62— October 17, 1913.) 
(Chapter 339. Laws 1911.) 
THE MOUNTAIN COPPER COMPANY. LIMITED (a 
vs. J. BASSIGNANI, Defoadaat. 

TjnsR OF Earning Poweb^Measube of Compehhation.— The wpekly loss in waeos 
consequent D|>on partial disabitily consisiB in Ihc difference between the aveni)^ 
weekly eamitiKB of the injDri>d employee and the weekly amount whjcb the 
injured employee, in the exercise of reasonable ililiKenoe, will proliably be able 
to earn, liied as of the time of the aceident and determined in view of the nature 
and extent of the injury. Tlie loss of earning power is determined with refer- 
ence to the injured man's ability to compete in an open labor market. Evident 
herein considered and hild to establish a loss of earning power equal to one half 
of full earning power. 

This was an application by an employee to have determined the 
extent of loss of earning power by reason of a partial permanent dis- 
ability on account of the loss (»f a rijiht arm at the shoulder. Award 
was iimde in the sum of .-iJ^.^.'tt^OO. payalilc in installments at the rate 
of $4.69 a week. 

Wm. F. Kelt, for applicant. 

Defendant entered no appearance. /'"',^,-.,-sl,> 



164 EUPLOYERS' LIABILITT ACT DECISIONS. 

The defendant in this (rause was so badly advised as to his rights and 
obligations under the compensation act that he neglected or refused 
to file any answer, make any appearance or pay any attention to the 
communications sent him from time to time by this Board, but, for- 
tunately for him, the facts admitted in the application of the employ- 
ing corporation fully establish the defendant employee's claim to com- 
pensation, leaving only one issue to be determined by this Board, and 
that is the issue of the probable permanent loss of earning power 
eonseiiuent upon his injury. 

On this point the statute is specific. It declares that "The weekly 
loss in wages referred to in section 8 (the loss consequent upon partial 
disability) shall consist of the difference between the average weekly 
earnings of the injured employee • • • and the weekly amount 
which the injured employee, in the exercise of reasonable diligence, will 
probably be able to earn, the same to be fixed as of the time of the 
accident, but to be determined in view of the nature and extent of the 
injury," When this loss of wages is so determined, the injured em- 
ployee is entitled to sixty-five per cent thereof per week until he has 
received, all told, a sum equal to three times his average annual 
earnings. 

This loss of earning power must be determined with relation to an 
open labor market, so that if one fail to secure employment in any par- 
ticular locality he may go to another in search of employment with 
a reasonable hope of securing it. 

The employment mast generally considered available for aged, dis- 
abled or one-armed men of no especial adaptability or trade or pro- 
j'ession is that of watchman, but it is matter of common knowledge that 
there are not enough positions of that nature to furnish employment 
to all who desire them. After mature deliberation the Board fixes the 
probable earnings of a laborer who has lost his major arm at the 
shoulder at half his wages. This would make defendant's loss of 
earning power consequent upon his injury seven dollars and twenty- 
one cents ($7.21) per week, and sixty-five per cent thereof is four 
dollars and sixty-nine cents ($4.69) which applicant should pay the 
defendant herein each and every week imtil the total sum paid, together 
with the payments awarded for temporary total disability, equals three 
times defendant's average annual earnings, to wit: the sum of two 
ihoasand two hundred and fifty dollars ($2,250.00). 

A. J, PlLl^BURY, 

Wii,!, J. French, 

Members. 



D.gitizecbyG00glc 



employers' "LIABILriT ACT DECISIONS. 



(No. 65— October 20, 1913.) 
(Chapter 399, I,aws of 1911.) 



Cost of Medical and Suboical Tbeatmbnt— JuBisnicnON of Industrial Acci- 
dent Board. — The law does not require the employer to provide medical and 
surgical treatment and hospital service for an injured employee to cost more 
(ban the sum of f 100, aod the Industrial Accident Board bas no jurisdiction to 
- determine a controversy concerning the cost of necessary treatment and seri'icc 
in excess of the maximum provided by law. 

The applicant was injured by being drawn iiito*a revolving sugar 
spinning maeliine. Besides lacerations and fractures he suffered from 
gangrene and lockjaw as a result of his injuries. His condition required 
medical and surgical treatment and hospital service at an expense far 
in excess of the maximum amount prescribed by law as payable by his 
employer. The defendant had paid $290.35 more than the law required 
under this head and had paid more compensation than required. An 
award was made continuing the payment of compensation at the rate 
of $9.37 a week during temporary total disability or until the further 
order of the Board. 

E. L. dc Freitas, attorney, for Applicant, 

Lilientk(U, McKinstry & Raymond, attorneys, for Defendant. 
There was no need for the filing of application for an adjustment of 
claim in this case. There was no controversy which required determi- 
nation over which this Board has jurisdiction. The defendant corpo- 
ration had paid the applicant full wages ever since he was injured, 
instead of sixty-five per cent thereof as the law required, and had paid 
hospital and surgical bills amounting to nearly four times the maximum 
requirement under the act. and defendant, by its attorney, readily stip- 
ulated that the injury was sustained while the applicant was in defend- 
ant's employ, that the injury grew out of and was incidental to such 
employment and was not the result of wilful misconduct on the part 
of such injured employee. Whatever controversy existed between the 
parties related to medical and surgical treatment furnished in excess 
of the maximum requirement under the act, over which excess this 
Board has no jurisdiction. 

There is, however, nothing in the act which prevents an employer 
obligating himself to furnish medical and surgical treatment in excess 
of the maximum requirement of $100 prescribed in the act, and it is 
fre<)uent]y good business policy, as well as a humane act, for the 
employer to furnish full medical and surgical treatment up to many 
times the hundred-dollar limit. The case under consideration is a case in 
point. Had medical and surgical treatment been discontinued when 
the first hundred dollars' worth of services had been furnished, the 



166 EurLOTEns' liability act decistons, 

injured employee might have died of his wounds or have been reDdoretl 
fiu almost helpless cripple for life, in which ease tlie defendant corpora- 
tion would have been holden to pay to applicant, or to his dependents, 
full three times his average annual earnings, amounting to two thousand 
two hundred fifty dollars ($2,250) ; but, most fortunately for all con- 
cerned, applicant was so well cared for that, witliin half a year from 
the time of injury, he will be able to do light work and, as soon there- 
after as his muscles regain their strength by use, he will be restored to 
a normal earning power and the payment of compensation will end. 

As we view it, tjie investment in medical, surgical and hospital treat- 
ment in this case has been most profitable to the defendant corporation 
as well as to the injured employee, and, if the charges for such treatment 
lie reasonable, the bill should be paid without question. Under the 
present law, however, the issue of the reasonableness of the charge in 
excess of $100, and whether or not a contract, oral or implied, exists 
between the defendant corporation and those furnishing the treatment 
to pay for the same, is for the courts and not for the Industrial Accident 
Board to determine. 

A. J. PU.LSBTJRT, 

"Will J. French, 

Members. 



(No. 50— November 3, 1913.} 

(Chapter 399, Lews 1911.) 

I'ETE KRZNARICn, ipplioant. ve. CROWN COLUMBIA PAI'KR COMrANY 
(A COBPOOATION) AND THE EMPLOYERS' LIABILITY AKStlRANCK 
CORPORATION, LIMITED (a coupobation ) , DefendanU. 

AvBRACR Annual Eahninqs— EMPiflYEC Wobkiwq EionT Shifts a Week,— Where 
an employee works more thau six dnys a week, it is manifestly unfair to apiily 
the geaeral rule of computing his averace annual eflrninjrs hy taking tliem at 
three hundred limes his daily eaminfM. Neither ean it be fairly axsiimnl that 
Bueh employee will work steadily full time ciKlit shifts a wock. Tinder such 
drcuiuslanccs, it is proper (or the parties, after full consiiteration, to agree upon 
and Si an amount as the average annual earninga of such employee. 

I'liBVioira DiSABii.iTr — Cwppled Euplovf.e. — .\n employer who takes into bis 
employ an employee who has been crijiptcd tahes him sulijcct to his crippled 
condition. The previous disability docs not preclude the employee from (he 
henefita of compensation, lint reiiuircs that bis average annual earnines shall 
reasonably represent his annual earning capacity at the time of the later injury. 

This was an application for compensation on account of a right hand 
being torn off above the wrist. The facts are stated in the opinion of 
the Board. Award was made in the sum of $2,536.50. 
J. E. K. Connac, for Applii-ant. 
A. Wislrand, for Defendants. 
Pete Krznarieh, the applicant in this cause, had his right hand torn 
off above the wrist through an accident sustained while working for 



employehs' liability act decisions. 167 

t!ie Crown Columbia Paper Company of California, at its mill at Flor- 
iston, on the Truckee river, in this State. Several months of unprofitable 
negotiatioDB had been conducted between the parties, with nothing much 
to divide them, whereupon thi.s Board resolved to bring the issue to 
a determination and appointed a day for hearing with that purpose 
in view. The only questions at issue were as to the average annual 
earnings of the applicant and as to his probable loss of earning power 
by reason of his injury, 

Krznarieh worked eleven (11) hours on day shifts and thirteen (13) 
hours on night shifts, getting in eight shifts per week and receiving 
therefor two dollars and thirty-seven and five tenths cents ($2,375) per 
shift, although he had worked at that rate only from the Ist of February 
until the 22d of April, when he was injured. Previous to February he 
had worked at two dollnrs ($2.00) per day at less exacting employment. 

Manifestly the 300 times the average daily wage rule for determining 
the average annual could not be applied to this case with fairness, as 
it seldom can be where men work a seven-day week, and certainly not 
when one works virtually eight days in the week as did the applicant 
in this case. Nor would it be fair to estimate applicant's annual 
average earnings at two dollars and thirty^even and five tenths cents 
($2,375) times 416 possible shifts in the year, for no man not made of 
iron could maintain that strain of employment throughout the year. 
After discussion it was stipulated by the parties, at the suggestion of 
the Board, that the average annual earnings of applicant be fixed at 
eight hundred forty-five dollars and fifty cents ($845.50) as reasonably 
representing the average annual earnings of the employee at the time 
of his injury. 

Defendant assurance corporation contended that applicant's disability 
by reason of the loss of the right hand would not have been nearly total 
had it not been that he had previously lost the middle fingers of the 
other hand and suifered the permanent stiffening of the joints of the 
remaining fingers, but it is well settled that whoever takes a crippled 
employee into his employ takes him subject to his crippled condition. 
Chapter 399 of the laws of 1911, in subdivision {d) of section 9, provides 
that the fact that an employee has suffered a previous disability shall 
not preclude him from compen.sation. but it re<]uires that his average 
annual earnings shall reasonably represent his annual earning capacity 
at the time of the later injury, which re(|uirement was fully considered 
in computing applicant's annual earnings. It is worthy of note that 
Krznarieh received his first injury while working for the same corpora- 
tion in the same place eight years bcfofe, for which injury he received 
no compensation whatsoever, 

A, J, Pa.LSBURY, 

Will J, French, 

Member^ 



168 EUPLOYEnS LIABILITY ACT DECISIONS. 

(No. 69— November 19, 1913.) 
(Chapter 399, Laws 1911.) 
SARA A. SMITH. Applia 

"Accidental" Injury.— Where the applicant is employeil ia pinning shirts and 
other clothing in a laundry, and the repeated preKsine of (he forefiDger on the 
heads of the pins causes an abrasion and abscess u|jon the toreSntter. such 
abscess is proximately caused by accidental injur; within the meaninic of the act 

Proximate Cause — ABSCESS—FiNniNG of Fact.— Evidence held to show that an 
abscess upon the torefinRcr of applicant must have been proximately caused by 
an abrasion or puncture while applicant was employed in pinning shirts in a 
laundry, although the applicant could not recall any particular moment at which 
such abrasion or puncture occurred. 

Wbioht of Evidence — Burden ok Proof. — While the burden of proof rests upon 
the applicant to establish the fact of injury, yet "the law does not ret|uire 
demonstration : that is. such a degree of proof as, excluding possibility of error, 
produces absolute certainty, because such proof is rarely possible. Moral cer- 
tainl; only is required, or (hat degree of proof which produces conviction in an 
unprejudiced mind." (C. C. P. Section 1826.) 

Wilful Misconduct — Test op— Contihuinu at Work After Injury. — That 
applicant continued at her work after the abscess in her Gncer had started to 
develop does not constitute misconduct. At the most, it was no more than an 
error in judgment. Wilful misconduct consists in the deliberate and wilful, pre- 
meditated violation of a rule made for the protection of the employee himself 
against the consequences of accident. 

Medical ahi> Surcjical Treatment — ^Faii.ube to Notify Employer on Injury. — 
Where the applicant does not notify the employer of the necessity of medical 
treatment in sufficient time for the latter to furnish or refuse to furnish it. the 
latter is not liable for the cost of medical treatment contracted for by the 
employee. 

The facts are stated in the ojjinion. An award was made in favor of 
the applicant in the suiii of twenty-four dollars and thirty-eight cents 
(*24.38), this being the amount due for two weeks' total temporary dis- 
ability and ten weeks' partial temporary disability. 
A. H. Poster, attorney, for Applicant. 
Milton K. Young, attorney, for Defendant. 

From July 29th to August 10th, 1913, Sara A. Smith, the applicant 
in this cause, pinned shirts and other articles for the Munger Laundry 
Company of Los Angeks, the defendant herein, taking the place of 
another employee during sneh employee's aliseuce. The pins were 
thrust through the fabric by pressing against their heads the side of 
the right forefinger at the joint nearest the end of the finger, the distal 
,joint. On or alx)ut the 6th of August applicant noticed that the finger 
was becoming hard at the side and that a while spot appeared where 
the heads of the pins pres-sod. hut she eontinucd with the work, 
although the pressure of the pins hurt her. Upon the return of the 
employee whose regular work it was to do the pinning, applicant did 
other work tor two or three days, but the finger grew steadily worse. 
At night she poulticed it with fiax seed and peroxide, but without 



LIABILITY ACT DECISIONS. 169 

material improvement. By the 13th the finger was badly swollen, her 
arm pained to the shoulder and, being directed by the forewoman of 
that department to work in another department of the laundry instead 
of at ironing, which was and is her regular occupation, she quit work 
and went home, not feeling able to work longer. On the 17th she called 
in a physician, who lanced the finger to the bone, found that pus had 
developed and treated the injured meml)er for about three weeks, by 
the expiration of which time applicant had so far recovered as to be 
able to do light housework not requiring the use of that finger. 

Having had a felon on one of the fingers of the other hand years 
before, a|)plic»nt entertained and expressed the fear that a felon was 
developing on this finger, and it was not until afterward that she 
attnbuted the malady to the atieking of pins while at work in the 
laundry. Accordingly, on August 27th, she made application to the 
laundry company for compensation. The officers of the defendant com- 
pany refused payment on the grounds that there was no evidence to 
connect the alleged injury with any accident growing out of the employ- 
ment, and, that if there was any injury, it was the result of the mis- 
conduct of the employee in continuing to use the injured finger after it 
had become sore, thereby aggravating its condition to the injury of 
the defendant corporation if compensation indemnity should be allowed 
therefor. Applicant therefore began this proceeding. 

This is one of those border-line cases, difficult of decision for the rea- 
son that Ihe fact of accident, and consequent injury, is not as clearly 
and unmistakably evident as where one gets caught in a machine or is 
crushed under a falling Iwdy. There was no particular instant at 
which applicant was sensible of having punctured the finger, but that 
the skin was punctured and at one time exuded a small quantity of pus 
iippticant stoutly maintained and. inasmuch as the medical testimony 
(ihowed that the infection could not have transpired iiithout such punc- 
ture, we think that her testimony as to the al>raaion is strongly corroljo- 
rated by the testimony of her physician. Whenever such puncturu 
oecurred, whether applicant was sensible of it or not, an accident, within 
the meaning of the act, did take place and, whenever infection set in as 
a result of the puncture that infection, and the consequent symptoms, 
grew out of and were dependent upon such puncture. , 

Defendant affirmed that such abra.sion of the skin might have 
occurred elsewhere than during the employment, and there is a pos- 
sibility that such might be the fact, but the fact that applicant was 
pressing through the fabric something like two thousand five hundred 
pins per day. and that the pressure of the heads of such pins bore 
directly upon the affected point, raises a presumption of many thousand 
chances to one that the puncture was due to the employment and was 
sustained during such employment. 

i:Qi,.r::::G00'^lc 



170 ESirLOYEIts' LIABILITY ACT DECISIONS. 

While fhf burden of proof rests upon the applicant to establish the 
fact of injury, yet, "The law does not require demonstration; that is, 
such a degree of proof as, excluding possibility of error, produces abso- 
lute ct'rtainty, because such proof is rarely possible. Moral certainty 
only is ri-tiuired, or that degree of proof which produces conviction in 
an unprejudiced mind." (C. C. P. Section 1826). This Board is of 
opinion that, judged by the rule which the Code lays down, the fact of 
accident in this ea.se is established. 

There was no evidence to show that the injury complained of was 
the result of applicant's misconduct in continuing to use the finger and 
going on with the work when she found that it was sore. At the worst 
it was no more than an error of judgment, a manifestation of fortitude 
more worthy of praise than of condemnation. Misconduct, as a defense 
against a claim for compensation, is everywhere strictly construed and, 
without attempting lo give a definition of misconduct that will fit all 
cases, which cannot be done, it is fair to say that misconduct ordinarily 
consists in the delilierate and wilful, premeditated violation of a rule 
made for the pi-oteetion of the employee himself against the conse- 
((uences of accident. There was, in this case, no such rule or violation 
thereof. 

For the reasons alwve given applicant is awarded a temporary, total 
compensation indemnity for two weeks and a temporary, partial dis- 
ability indemnity for ten weeks thereafter, the total amounting to 
$24.38. 

Applicant is, however, denied reimbursement for the cost of necessary 
medical and surgical treatment for Ibe reason that she did not afford 
the defendant Laundry Company an opportunity either to furnish, or 
refuse to furnish, such treatment, in either of which events her claim for 
such reimbursement within the limits pre.seril>ed by the act, must have 
Imen allowed. The act specifically gives the employer the right to fur- 
nish, or to refuse lo furnish medical and surgical treatment to cure and 
relieve from the effects of every such injurj', and to this end he must be 
informed of the injury at the earliest practicable moment, but this is 
not a right that he can sleep on, for his neglect seasonably to furnish 
such treatment is tantamount to a refusal and such refusal makes hira 
liable for the reiLsonablc east of such treatment if liable for compen- 
sation at all in such ease. 

When employers and employees come fully to understand their 
obligations and rights under compensation laws, such controversies as 
this (uie will tie extremely rare. 

A. J. PiLLSBL'RY. 

AViLL J. French, 
IlARRig Weinstock, 
Members. 



Digitiz 



...Goo'^ Ic 



EMPLOYEES LIABILITY ACT DECISIONS. 

(No. 67— November 21, 1913.) 

(Chapter S99, Laws 1911.) 
C. niLDEA, Applict 



DisAniLiTT — In.iuby Causino IIanoicap in Secubino Otheb Emi"Loyment. — Evi- 
dence hpid Co show a permanent disability of ten per eent aside from the impair- 
ment of applicant'i physictii powers, m tliat his limping wonid put the applicant 
under a handicap to that eitcnt in securing eniplojinetit. 

FiKniNo OP Fact — Percentage of PesuArieNT Disability. — Evidence held to show 
that the applicant bad sustained a ten per cent ph^rsical disability as a result of 
the fracture of his left leg. after the healing thereof, and a furtlier disability of 
ten per cent by reason of his beiug handicapped in securing employment. 

This is an application for a partial di.sability benefit. The faets are 
stated iu the opinion. An award was made in the sum of five hundred 
twenty-four dollars and eighty-six centu ($524.86) for temporary dis- 
iibility payments up to September 21, 1913, less the sum of four hun- 
dred Keventy-four dollars and twenty-six cents ($474.26) previously 
paid on this account. The applicant was further awarded the sum of 
iwn dollars and twenty-eiRht cents ($2.28) per wpfik, a.s a parttal per- 
manent disability indemnity from and after September 21, 1913, for 
seven hundred thirty-four consecutive weeks. 
J. B. Connelly, attorney, for Applicant. 
J. T. Piggolt, attorney, for Defendant. 

On the 27th day of October, 1912, C. Gildea, tlio applicant herein, 
white in the employ of the Xatomas Consolidated of California, a corpo- 
ration enpaged in fiold dredging and rock crushing, suffered the break- 
ing of lioth bones of his left leg about two inches below the knee. The 
fracture was a bad one, and yet 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 lappetl by. The union was strong, 
but the leg was .somewhat .shortened and the joint so far affected that 
its flexion is diminished practically one third, that is, while he can 
straighten the leg, applicant can not draw it up to his body. 

In the judgment of the Industrial Accident Board the impairment of 
the physical machine of Gildea is not in excej^s of ten per cent. To be 
sure the muscles of the injured member are now flabby and lacking in 
htrength, but strength wilt return with reasonable use of the leg, and, 
in no great length of time, the hip will so adjiust itself to the shortened 
leg as to leave only a slight limp, if any at all. 

But aside from tlie impairment of the physical meehanisni of the leg, 
consequent upon the injnr>-, applicant will Ijc further handicapped in 
his efforts to secure employment. When, in seeking employment, he 
comes into competition with another who, in all other respects, is his 
equal but also has two uninjured legs to stand on, run with or with 



Goo'^ Ic 



172 EMPI-OTBRS' LIABILITY ACT DECISIONS, 

which to climb ladders of inclined planes, he will sometimes find him- 
Kelf rejected in favor of the uninjured workman. Upon investigation 
and reflection the Board places this impairment of ability to compete 
likewise at fen pw cent, thus fixing the difference between the average 
weekly wage applicant was earning at the time of the injury and the 
wage he will probablj' be able to earn thereafter, by the use of due 
diligence, at twenty per eent of such weekly wage, or three dollars and 
fifty-one cents ($3.51). Of this less he is entitled to .sixty-five per cent, 
or two dollars and twenty-eight cents ($2.28), for each and every week 
from and after the termination of his temporary total disability until 
cut off by the fifteen-year limitation provided in the act. 

Applicant was working on a seven-day per week schedule. Mani- 
fesflj', it is unfair to wage earners who work a seven-day week to com- 
pute their average annual or weekly ciimings on a basis of 300 times 
the average daily wage, the rule applied in the eases of six-day workers. 
CfHisequently this Board, in this and other instances, has computed the 
average annual earnings of seven-day workers at 332 times the average 
daily wage as well meeting the ends of justice in such cases. 

A. J. PiLLSBUHY, 

Will J. French, 

Members. 



(No. 21— December 3, 1913.) 

(Chapter 399, Laws ISII.) 

FllKD WESTON, Applicant, vs. CROWN COLTTMBIA PAl'MIl COMI'ANY (a, 

OOBPOiiATiON), Dcfcadant. 

Ahhaolt— Pektobmamcb of Seuvicb Griiwiko Ovt of and Incidental to Em- 
ployment — Course of Empi»ymest — Jasf. of Piitv. — AlthouRh it is ihp duty 
of on pm|)lo)-M (>mp1o}*<>d nit manager of n hotel, to eject disorderly persunn. and, 
in doin;; so, tie is pprfortninc a service crowinit out of snd incidental to liix 
employment, he is not acting in the line of liis duty when he aasaultx such jkt- 
sons Bolely for npplying an abusive epithet lo him. and in not entitled to eoni- 
1>eDsation for an injury to his hand, as the result of striking another under such 



.^tiSAVLT — Line of Diitt. — It was the duty of the appliennt, sh niananer of a hotel, 
to eject certain disorderly persons, undi^r the facts proved in this ease, but, to 
act in the line of his dnty. as provided by law, he should have nsed no more 
force than was necessary to accomplish that ond. In doing so he departed from 
the line of his duty and can not recover compensation for the resulting inlury. 

This is an application foir compcn»ntion for a broken hand. The facts 
are stated in the opinion. ('ompciiKation was denied for the reason that 
the employee was not acting within the line of his duty. 
Fi-cd Wcstoii, in j>ropria i>i:rso)ia, for Applicant. 
Goodfvlliiw, EeUs & Orrtik, attorneys, for Defendant. 
This cause, by reason of the scattering of the witnesses lo the incident 



employers' liability act decisions. 173 

soon after it transpired, has been tedious and tardy of detcrminatiou, 
and has to be dedded with a less searching inquiry than desirable. 

The facts of the incident arc substantially as follows : On the night 
of December 4, 1912, about 9 :30, two men entered the hotel at Floriston 
in an intoxicated condition, and, proceeding tu the dining-room door, 
demanded food and a room. The applicant herein and his wife were 
conducting tlie hotel for the above named Paper Company at a monthly 
wage. Applicant informed the men that the dining-room was closed 
iind he could not furnish them with food and that the rooms were all 
lull, whereupon one of the men applied a vile epithet to applicant and, 
immediately, applicant struck him in the face, first with his right hand 
and next with his left, and ordered both men to leave the hotel, which 
they did, applicant following them to the door. In striking this man 
applicant broke the long bone of tlie 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 permanently 
and rather seriously crippled. 

The burden of proof is upon the applicant to establish to a moral 
certainty that, at the time of the accident complained of, applicant was 

1. Performing a service growing out of and incidental to his employ- 
ment; 

2. That he was acting within the line of his duty; 

3. That he was acting within the course of his employment as such ; 
This Board is of opinion that applicant has fairly established the 

facts that the accidental injury complained of was suflfered while per- 
forming a service growing out of and incidental to his employment; 
that he was acting within the course of his employment as such, and 
that his injury was not caused by his own wilful misconduct, but we 
are of opinion that he has failed to establish as a fact that, in striking 
the intruder for applying to him-self an abusive epithet, he was acting 
within the line of his duty to his employer, the defendant herein. That 
duty rather required that he restrain his temper and get the intruders 
out of the house as peaceably and expeditiously as possible, using no 
more force than re(|uisite to accomplish that end. He may have been 
jiLstified in resenting the personal insult to himself, but in doing that 
the consequences to himself which flowed from the act of resentment 
were imputable to himself and not to his employer. 

For the foregoing reasons compensation i.s denied in this cause. 
A. J. PiLLSBURY, 

WiLi, J. French, 
Harris Weinstock, 
Members. 



D.gitizecbyG00glc 



EJIPI.OTEBS LIABILITY ACT DECISIONa. 



(No. 59— Dec-mbor 8, 19]3. 
(Chapter 399, Laws 1911.) 



The defendant is the mother of one Alphouse F. Malaret, who lost his 
lift; by aetident on the 2i)th day of March, ]!)13, while employed at the 
tannery of the applieant, Poetifch & Peterson, under such circuni- 
.stances as to entitle his de[>endents, if any, ta death benefits, as pro- 
vidttl by seetion 8 (3) of chapter 3!»9 of the Laws of 1911. The appli- 
cant, Sonthwestern Surety Insurance Company, was the insurer of 
I'oetseh & Peterson. 

The average annual earnings of the deceased employee at the time 
of the injury were $675.00. His average weekly earnings were $12.98. 
The evidence offered showed that the defendant, who lived in France, 
was partially dei)endent upon her son for her support, and that for 
three years prior to his death he had seut to her annually ati average 
of 11.4 per cent of his wages. 

As the fact of dependency and the extent thereof were Uie only ques- 
tions in the case, it was determined that the applicants pay to the 
defendant, as a partial dependent of lior tleceascd son, the total sum 
of $230.85, payable as follows : 

1. The sum of $53.28 forthwith. 

2. The sum of $6.41 a month for twenty-seven crui.secutive months, 
and 

3. The sum of .$4.50 in the 28th month. 

Ira H. Cross, 
Secretary, 



(No. 75— Deceml>er 10, 1913.) 

(Clmpler 399, Ijiwa 1911.) 
S.\.\r FIKLIX Applii-aHt. vk. MACKONAI.]) & KAFIN 
WESTKUN SllUPrrV I.NSl'KANCE COMPANY (, 

Sam Field, in propria pcrsotiu, for Applieant. 

W. V. Lloyd, for Defendants. 
This is an application for a tolal disjibility indemnity and for medi- 
cal expenses. The applicant. Sam Fiild, lomplained of a broken nose 
and infecliHl ents on his hands, dne to slivers. The principal con- 
tmvcrsy was as to whether the said injuric'; were caused by an accident 
while at work, or were received in a ti^ht that aj>plicant had had about 
the same time. The evidence iwtablishcd the cause to be an accident 
iiccurrinfr in the course of employment and an award was therefore 
made in favor of the applicant in the sum of twenty-six dollars and 



employers' UABH-lTr ACT DECIStONB. 175 

fifty-one cents {$26.51), this being the amount of four and four- 
sevenths woekly disability payments. The defendants were further 
ordered to pay to applicant's physician the sum of forty-seven dollars 
and fifty-cents ($47.50), to the Alameda Sanitarium a balance due of 
twenty-seven dullara and fifty cents ($27.50) for applicant's hospital 
expenses, and to the applicant cash in hand ten dollars ($10.00) as 
reimbursement for hospital expenses paid by him. 

Ika B. Cboss, 
Secretary. 



(\o. 72~Decembcr U, 1913.) 

(Chapter 399, Laws 1911.) 

GEORGE LINNELL, Applicant, vs. NORTH STAR MINES COMPANY (a COB- 

PORATION), Diifciidant. 
Pebuanent Di b ability— r^ss OF Okb Eye— Sigutless Eye Blood.shot.— Anpli- 
cant'a permHDenl disability, involving tbe loss of one eye. the sightless eye being 
bloodshot aad easily apparent to all prospeotive employers to tbe dlsadvahtage of 
applicant ia securing employment, held, to entitle the applicant to a fifteon per 
cent disability indemnity. 

The facts are stated in the opinion. The applicant was awarded the 
sum of six hundred thirty-three dollars and seventy-five cents ($633.75) 
as a total temporary disabilitj' indemnity, less the sum of five hundred 
.seventy-two dollars and eighty cents ($372.80) previously paid on this 
account. The applicant was further awarded the sura of three dollars 
and seventy-five cents ($3.75) per week for twenty-sis weeks from and 
after October 15, 1913, for a partial temporary disability, and one 
dollar and eighty-three cents ($1.81!) per week for partial permanent 
disability from and after April 5, 1914, for seven hundred two con- 
secutive weeks. 

George Linnell. in propria persmia, for Applicant. 
Lloyd F. Larue, attorney, for Defendants. 

(leorge Linnell, while employed in the North Star Mines at (Jrasa 
Valley, California, was injured by the explosion of dynamite caps. 
Particles of metal were driven into his flesh at many points and the 
sight of his right eye was destroyed. 

In our award we have in the first place allowed George Linnell, the 
applicant herein, indemnity for one year of total disability. The 
defendant had allowed such indemnity for eleven montlis, but did not 
take the trouble to notify applicant, when he applied for his monthly 
stipend, that his compensation would be discontinued at the expiration 
of another month. In this we think that the employer did not treat its 
injured employee fairly, and that it was not unreasonable, in view of 
his physical condition, for applicant to claim another month's total 
disability indemnity. 



Goo'^lc 



176 employers' liability act decisions. 

In addition to this we have allowed applicant six mouths' temporary 
partial disability amounting to three dollars and seventy-five cents 
($3.75) per week in order to give him a reasonable time during which 
to train his remaining eye to do the work of both eyes. Linnell is 
young, being twenty-seveu years of age, and, by the exercise of dili- 
gence, should be able so to train himself in the course of half a year. 
Meantime, also by the use of due diligenee, he should be able to seenre 
work at not more than one dollar ($1.00) per day leaa than he was 
receiving at the time of his injury, viz., three dollar.^ and twenty-five 
cents ($3.25) per day. 

Ijinnell's sightless eye is bloodshot and will probably remain ao. It 
will easily be noticed by all prospective employers that there is some- 
thing the matter with that eye, and that fact will militate against hl-n 
ability to compete in an open lalior market. This disability is per- 
manent, and, after mature consideration, we have fixed the extent of 
such disability at 15 per cent of the daily wage which he was receiving 
at the time of his injury, and have allowed him sixty-five per cent of 
this sum for the period of seven hundred two weeks remaining before 
the expiration of the fifteen year limit. We are aware that, in doing 
this, we have raised the percentage two or three points above awards 
made in previous eases, but, in the light of additional experience, we 
have come to the conclusion that our earlier estimates wore lower than 
justice warrants. This Hoard does not regard precedents even which 
it itself has establishe<1 as unchangeable where the demands of justice 
require a change. 

A. J, PiLLSBURY, 

Harris Weinstock, 



(No. 70— December 31, 1913.) 

(Chapter S99, Laws 1911.) 

ATJCR A. CHATBL, Applkanl. va. SOUTHWESTERN StritRTY INSURANCE 



Dependencv- Conclusive Pbebiimi-tion — Widow anh Son or Deceased by 
KoRMEB WiKE. — While the net provides that n wife is conclusively preaumed to 
he Holcly aoij wholly depeuilent upon her hushand, nn<l aleu that a minor child is 
conciuBivoly presumed to be solely and wholly dcjwndcnt upon its parent, there 
beinfc no aurviving dependent parent, such sections are not to be constnied as 
divesting either or both of such dependents of tlicir riRht to compensation In 
enaes where, aa here, both are dependent upon tlie same deceased employee. In 
such case the righls of both are governed hy subdivision (c) of acction 9 of the 
Btatnle. providing that in all other cases questions ot dependency arc to be 
decided in accordance with the fact aa (he matter may he. and where there is 
more than one wholly dependent upon tlie deceased employee, the award is to lie 
divided equally between them. 



D.gitizecbyG00glc 



employers' liability act decisions. 177 

This is an application for a death beuefit. The applicant is the 
widow of Joseph E. Chatel, who was employed as a structural iron 
worker by defendant F. K. Peel Company, and was killed by a fall on 
May 28, 1913. The rest of the facta are'.stated in the opinion. The 
only controversy was as to the distribution of the award among the 
dependents. An award was made of three thousand six hundred dollars 
($3,600.00), payable half to the applicant as widow, and half to Joseph 
E. Chatel. legal guardian of the minor sou of the deceased by a former 
wife. Payments to each were orderetl to be made at the rate of eleven 
dollnrs and fifty-four cents ($11.54) per week until fully paid. 

Alice A, Chatel, in propria persona, for Applicant. 

^Yallace & FolHzer and Joseph T. Chatel, guardian, for Carl E. 
Chatel, a minor. 

William V. Lloyd, attorney, for Defendant, Southwestern Surety 
Insurance Company. 

One Jateph E. Chatel, an iron worker, was killed by accident on 
the 2«th day of iMay, 1913. while in the employ of the P. K. Peel Com- 
pany. He left a widow, Alice A. Chatel, and a son by a former mar- 
riage, Carl E. Chatel, a minor. The Southwestern Surety Insurance 
Company assumed the liability of the F. K. Peel Company and, a ques- 
tion arising as to the disposition of the death benefit payable in the 
ease, said insurance company very properly discontinued payments of 
the death benefit to the widow until the issue should be determined. 
To that end Alice A, Chatel, the widow, instituted this proceeding. 

Applicant claims that, inasmuch as subsection (3) of section 9 of 
chapter 399 of the Laws of 1911 declares that the widow of one so killed 
liy accident shall be conclusively presumed to be solely and wholly 
dependent for support upon her hasband, she is the itole and only 
dependent and entitled to receive the entire death benefit, and that the 
child must look to her for such allowance for its support as may be 
proper in the circumstanc<». 

Subsection -i of section 9 of chapter 399 of the Laws of 1911 is as 
follows : 

(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. 

(fej. A husband upon a wife upon whose earnings he is partially 
or wHUly dependent 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 Ix'ing no surviving dependent parent. 
In case there is more than one child thus dependent, the death 
benefit shall be divided ecjually among them. In all other cases 
questions of entire or partial dependency shall be determined in 
12—11595 



178 EMPLOYEES LIABILITY ACT DECISIONS. 

accordance with the fact, as the fact may be at the time of the 
death of the employee, and in snch other cases if there is more than 
one person wholly dependent, 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 par- 
tionally dependent, the death benefit shall be divided among them 
according to the relative extent of their dependency. 

If we assume "solely and wholly" to be the equivalent of "sole and 
only," we have the situation of having two dependent who are each of 
Ihcm "sole and only" dependents, viz., the widow of the deceased hus- 
band and the child by a farmer marriage, such child having "no sur- 
viving dependent parent." In which case two dependent mutually 
exclude each other from the classes of dependents which are con- 
clusively presumed to be solely and wholly dependent and throw them 
both into the classification with "all other cases," provided for in sub- 
division (c) where, if there be more than one person wholly dependent, 
"the death benefit shall be divided equally among them." We are 
inclined to accept this view of the law iu this ease for the further rea- 
son that the statute makes no provision for dependent children where 
.such children do have a surviving dependent parent, but requires such 
children to look to such dependent parent as being the "sole and 
wholly" dependent of the deceased workman. 

If, however, we take the view that the conclusive presumption of 
.s(Je dependency runs to the widow only in those cases where there are 
no children by a former marriage without surviving dependent parent, 
then the wife and child by a former wife are wholly dependents in 
common and. under the statute, must share equally in the death benefit. 

Likewi.>;e, if we assume that the phrase "solely and wholly" means 
no more than "wholly," we arrive at the same inevitable conclusion 
and have no choice but to divide the death benefit equally between the 
jipplicant and the defendant, Carl E. Chatel, decedent's minor child 
b_\' a former niarriape. 

A. J, PlLLSBUBY, 

Will J, French, 
Harris Weinstock, 
Members. 



(No. 73— December 22, 1913.) ^- 

CChapler 399, Laws 1911. > '' 

Applica«t. vs. JENNIE 

William H. Schooler, attorney, for Defendant. 
This is an application to have adjudicated the right, if any, of the 
defendant Jennie Smith to a permanent disability benefit. The defend- 



EMPLOTEBS' LIABILITY ACT DECISIONS. ■ 179 

aot was injured by accident on November 21, 1912, while in the employ- 
ment of the applicant Sterling Laundry Company, receiving a badly 
crushed left hand. The accident was caused by the defendant's hand 
being caught between the rftllere of a mangier, stripping it of skin and 
ligaments. Compensation was paid by the employer for forty-five 
weeks and medical expenses to the extent of fonr hundred and forty- 
hix dollars ($446.00). The issue now raised is as to the extent of the 
disability, if any, at the date of the application, November 20, 1913, 
The evidence showing that a partial permanent disability had resulted, 
an award was made in favor of the defendant in excess of compensation 
previously paid, in the sum of $2,925 per week for 319.32 consecutive 
weeks, total amount of such payments being nine hundred thirty-four 
dollars ($934.00). 

On January 23, 1914, the defendant herein presented her applica- 
tion for a review of the award, which was on the day foUomng denied 
for the reason that it had not been filed within thirty days of the date of 
the award, as re(|uired by law. 

Ira B. Cboss, 
Secretary. 



(No. 74— December 22, 1913.) 

(Chapter 399, Laws 1911.) 

IIABTIN riETROVOSKY, Appliraut. vs. WESTERN MEAT COMPANY (a 

COBPOBATiON), DciendaiU. 

The applicant, Martin Pietrovo,sky, was injured by a fall on May 26, 
1913, causing a (ompound fracture of the left leg. He was treated 
by the surgeon of the employer and pronounced cured on November 10, 

1913. The applicant claimed, however, that he was still disabled and 
brought this application. The oidy (jncstion was as to the duration of 
the disability. It ap[)e!ired that recovery was much rt'tarded by reason 
of the advanced age of the applicant — sixty-seven years. After the 
taking of testimony an award was made in favor of the applicant in 
the snm of two hundred twelve dollars and forty cents ($212.40), this 
being the aura of the total disability payments due up to January 1, 

1914. A partial disability award was also made, payments to com- 
mence with January 1, 1914, and continue until May 1, 1914, at the 
rate of four dollars and twenty-.six cents ($4.26) per week, all dis- 
ability indemnities to cease at the latter date unless otherwise ordered 
by the Board. 

Ira B. Cross, 
Secretary. 



D.gitizecbyG00glc 



180 employers' liability act decisions. 

(No. 76— December 31. 1913.) 

(Chapter 3S9, Laws 1911.) 
P. GOMEZ, Applkfint. vs. SOUTH EIJKEKA MINING COMPANY U 
nan), Di-fcudam. 

FEtoxiMATE Cause — Diheahk Foijx>wing Accident. — If a person is Rhown to be 
tlinabled by a diseane, Biii^h as tubercular pleiirisj', which rmulls from and is 
proximately caused by accidental injury, he is eutilled lo coni|)ensation therefor. 
A disease proximately lollowlnic an accident in to be distiiucuished, however, from 
an occupational disease, for which no compenHation is allowed by the act. 

rsoxiMATE (?AUSE— TUBEBCL'LAB PLEUBiSY — FiNitiNo OF Fact. — Evidence held to 
rIiow that apiiltennC bud received an injury to the tntereosinl nerve as a rexull 
of an accident while at work. The evidence failed, however, to shoH* tbat a 
present condition of probable tubercular pleuris]'. developing three weeks nfler 
the accident, was caused by the said accident. 

The facts are stated in the opiniou. 

F. Gomez, in propria persona, for Applicant. 
W. H. Sclimai, superintendent, for Defendant. 

Faustino Gomez, a miner, while working in the mine of the South 
Eureka Alining Company near Sutter Creek in this state, on the night 
of Aufnwt 5th, 191S, siutained an injury by a tjuantity of "gouge" 
falling out upon him and striking him in tJie right side. ITe quit work 
at once and did not return to work again until the 15th of September, 
1913. 

On the day following the injury, as well as upon subsetiuent days, 
he presented himself to the company's physician, Dr. J. II, McLaugh- 
lin, but the company's doctor found nothing serious enough the matter 
with Gomez to occasion disability, and on the 8th of September refusetl 
to give Gomez a certificate of disability, nor did Dr. JIcLaughlin report 
the injury lo the South Eureka Mining Company as involving any dis- 
ability whatever. 

However, Dr. P. S. Goodman, who later attended the applicant, 
furnished a written statement setting forth the results of his diagnosis 
as Iwing a fracture of two rilis and a bruising or pinching or other 
injury to the intercostal nerve of Gomez on the right sitle, although an 
X-ray plate, taken subset juently. shows that no ribs were fractured. 
Dr. Goodman may he right as to a bruising of the intercostal nerve. 
This view is strengthened by the testimony of Dr. G. L, Lynch of 
Amador City, who chanced to be present in Dr. P. S. Goodman's oflfice 
at Sutter Creek while the latter was making an examination of Gomez, 
and, according to the best of Dr. Lynch 's recollection. Gomez was at 
ihat time suffering from inflammation of the intercostal nerves at the 
point of iujury. Dr. Lynch still found a sensitiveness in the region 
on re-pxamination on the 19th of December when testimony was taken 
by Special Examiner Pillsburj'. 



D.gitizecbyG00glc 



EMPLOTEBS' LIABILITY ACT DECISIONS. 181 

Not being wholly satisfied with the eoncliisions reached by the phy- 
sicians above mentioned, the Industrial Accident Board had Gomez 
brought to San Francisco, where he was thoroughly examined by Dr. 
Moj-ton R. Tjibbona, who found, after taking an X-ray photograph, 
that there had been no fracture, dislocation, distortion or malposition 
of any liind and no injury to the liver, but admitted a possibility of 
injury to the intercostal nerve at the time of the accident. We think 
that the evidence is sufficient to warrant a finding of fact to that effect, 
and we have accordingly allowed a disability indemnity for four and 
four-sevenths (4^) weeks from and after the eighth day following the 
accident. 

Dr. Gibbon's examination, however, recorded a possibility of a far 

more serious disability than this, and that is a "probable tiibereular 

pleurisy either on the diaphragm or the thoracic wall or on the lung 

adjoining these parts." This malady may prqve serious, the more 

• especially if Gomez goes back to work underground. 

Unfortunately for Gomez, there is no evidence connecting this 
tubercular condition with the injury suffered August 5, 1913. and 
tuberculosis is the result of a disea.se infection rather than being 
proximately caused by accident. The compensation laws of California 
have not, as yet, made provision for those suffering from occupational 
diseases, although the line of demarcation between a disease that proxi- 
mately follows an accident, and is therefore within the protection of 
the act, and a disease which is occupational rather than accidental in 
its origin, is sometimes shadowy and hard to follow. 

Gomez returned to his work on September 15, 1913, apparently as 
well as ever, and continued to work twenty-one (21) or tweutj'-two 
(22) days, whereupon this new trouble came upon him. The interim 
was ample for him to contract the new malady without connection with 
the old injurj- sustained August 5. 1913. At alt events the burden of 
proof to establish as a fact that any tubercular pleurisy, which may 
have developed after Gomez had returned to his work, was proximately 
caused by the accident complained of seems impossible to sustain by 
any evidence obtained in this cas:e. 

A, J. PlLUSBURY, 

Will J. French, 

Members, 



D.gitizecbyG00glc 



182 EMPLOYERS I.tABILlTY ACT DECiaiONS. 

(No. 77— December 31, 1913.) 

(Chapter 399, Laws 1911.) 

NOIT KEGALLIE, Applicant, vb. CALIFORNIA COTTON MILLS COMI'AXY 



a twine liniahiDg macbine he was tending, and applicaot's etory is that he vran 
injured in iiuiling a broken thread out of the Bearing, and tlie evidenee sulnnitteci 
by the defendant ia that it is extremely improbable that the broken thread couliJ 
have falJen into the searinK, hiM. that the evidence is suffieient to support a 
fiodint! that eppJicant was injured while acting in the line of hia dut;, be beinic 
injured b; the machine he was employed to tend. 

The facts are stated in the opinion. An award was made in favor 
of the applicant in the sum of one thousand dollars ($1,000.00), less 
fifty dollars and sixty-three cents ($50.63) heretofore paid to the appli- 
cant as compensation. The award was made paj'able at the rate of 
$2.22 per week for four hundred twenty-eight weeks and until fully 
paid. 

Nott Eegallie, at the time of the injury which forms the subject 
matter of this controversy, was a lad of sixteen years of age, with only 
ten (10) days' experience in tending a twine finishing machine at the 
California Cotton Mills in Oakland, California. His duties were to 
remove the empty spools from the rack and put full spools in their 
places, and also to watch the threads, and if any of them broke to 
catch them up and tie them. The twine runs diagonally from the spools 
through a bath nf starch and over a large, heated drum and then 
straight to another rack adjacent to the starting point, where it is 
rewound upon other spools. The operation is simple and the duties are 
scon learned. At the left end of the drum are a belt and pulley, and, 
below, a slow-moving gearing with spoked wheels. It was in this gear- 
ing that Regallie got his right hand caught and badly crushed. 

Just how the accident happened is not clear, because no one but 
Regallie was present when it happened. He, himself, declares that one 
of the threads broke and fell into the gearing and- that, in reaching his 
hand through the spokes to pull the thread out. he got his hand caught. 
The' defendant's witnesses insist that if a thread broke it could not by 
uny means fall into the gearing, liut would either be held by a pro- 
tecting bar or be caught by the rapidly revolving pulley directly above 
the gearing. An inspection of the machine by the chairman of this 
Board strongly supiwrts the contention of the defendant's witnesses. 

Nevertheless, the boy did get his hand into that gearing, and, while 
it is improbable that a thread had fallen into it, as he claims, it is 
not impossible that it may have done so. 

Defendant opposes this claim on the ground that, at the moment 
of the accident, Regallie wa.i not "acting within the line of his duty" 



employers' ltabtuty act decisions. 18-t 

within the meaning of the act, inasmuch as his employment did not 
require that he go near that gearing. 

A too strict construction of the "line of duty" provision of the 
act would well-nigh defeat the purposes of the act. A machine operator 
is not like the machine itself, absolutely without choice or volition. 
Some latitude of discretion as to duty must be allowed to every human 
being. Had Regallie gone from his own machine to some other part 
of the faiitory, and injured himself while "monkeying" with a machine 
with which he hod nothing to do, the defendant's contention would have 
more force, but he did not. He was injured while tending the machine 
he was set to tend, and, a^ he insists, while trying to pull a broken 
thread out of the gearings. He nmy be right. There is only the unlike- 
nhood of the occurrence to oppose his positive testimony and the 
unquestioned fact that he did get his hand mangled, badly mangled, in 
that gearing. Interpreting the above provision in a broad and liberal 
manner, we therefore find ttiat the injury was sustained while he was 
"acting within the line of his duty." 

The compensation which the Industrial Accident Board is empowered 
to allow in this ca-e falls pitifully short of l>eing "compensation" 
within the popular meaning of the term, a "making whole" for what 
one has lost. His wages were only one dollar {$!) per day and the 
t'ompensation to be paid to him is the minimum allowed by the law 
governing compensation cases, and yet, at the very threshold of his 
years of earning ability, bis physical efficiency is reduced for life by at 
least thirty-five per cent, a handicap he must carry while he lives. 
Even with two good band:?, he had only a fighting chance to find a self- 
sustaining station in life. 

"Compensation," to be at all adefiuate Jn Regallie's ease, would 
require its payment twice or thrice as fast as this Board has power to 
order its payment. It would also require that it be paid to a guardian 
who would see to it that Regallie was sent to a manual training school 
for backward pupils zo that his belated mentality, as well as his crippled 
right hand, might be developed, thus making it possible for him to 
reach a self-sustaining earning status. If this is not done he is likely, 
sowner or later, despite the compensation awarded him by this Board, 
to become a public charge. The new act will give the Commission more 
discretionary power as to the distribution of the compensation award. 

A. J. Pn-LSBITRY, 

Harris Weinstock, 
Members. 



D.gitizecbyG00glc 



184 KMPLOVEBH LIABILITY ACT DECIfilONS. 

(No. 80— January 12. 1914.) 

(Chapter 399, L.awa 1911,) 

1'. \V. TKKACY. urARWAN of the i-krson anh ehtatb of Thomas Fbahoih 
Tkeacy, MiNOit ruiMi OF Thomas Theacv. iikceahei). Applicant, vs. STAXU- 
AUU OIL COMPANY (a cok^sation). U'-fiMidanl. 

The Applicant was unrepresented. 

//. //. AshUy, attorney, for Defendant. 
This is an applicatiiui for a death benefit. The applicant, 1*. W. 
Treac.v. is the k'sal ^lardian of Thomas Francis Treac.v, a minor, the 
son of Thomas Treacy, deceased. The deceased was killed on Decem- 
ber 4, 1913, by aceideiit, while working in the employment of the 
defendant. Standard Oil Company. This application was brought to 
obtain an adjudication of the mea>>ure of liability of the defendant, 
there being no controversy as to the fact of liabilit.v. An award was 
made in favor of the applicant, for the use and benefit of the minor 
in the sum of two thousand seventy dollars ($2,070.00), payable at the 
rate of thirteen dollars and twenty-seven cents ($13.27) per week for 
one hundred fifty-six consecutive weeks and until wholly paid. 

Iba B. Ckoms, 
tSccrctary. 



(No. 82— February 4, 1914.) 

{Chapter 199. Lnwa 1911.) 



y.Appii- 



Clikkfring £■: Oreyury, attorneys, for Applicant. 

Edward Clark, in propria persona, for Defendant. 
This is an application by the emphiyer to have determined the dura- 
tion of the di.'^ability of the defendant, Kdward Clark, who was injured 
by accident on November •i. 1913, sustaining a sprained ankle. Com- 
pensation had been paid by the employer f<ir four and six-sevenths 
weeks partial disability. An award was made in favor of the defeud- 
iint as a temporary partial disability indemnity in the sum of eighty- 
six dollars and forty-nine cents ($S6.49), less the sum of forty-five 
dollars and fifty-two cents ($45.52) previously paid by applicant on 
this account. The amount still due being compensation for a period of 
four and two-sevenths weeks additional temporary partial disability 
was made pa.vable at the rate of two dollars and thirty-two cents ($2.32j 
j)er week. 

Ira B. Cross, 
Secretary. 



Digiti 



;ct.yG00(^lc 



EMPLOYERS LIABILITY ACT DECISIONS. 18a 

(No. 78— February 5, 1914.) 

(Chapter 393. Laws 1911.) 

IjOVAS CHARLES VEUCOLTEItR, Applicant, vs. STAXD.A.Iin OIL COMPANY 

(a cobpobatios ) , Defendant. 

VALiniTr OF Kki.easb — Wast of t'oN si deration — Payment- of Musical Ex- 
penses. — Where nn Injured employee releases his employer from linbility in con- 
sideration of the payment by (he latter of tneilitnl expenses for treatment ordered 
by the employer at his own expense, sutli consideration is not valid as it is in 
no way a debt owi>d by the employer to the employee. The releaxe is therefore 
ineffectual and void. 

Id. — Past (^onhii>ebation. — A release exeeiited br a condition precedent to rereivin)[ 
WQjces or compensation already due and payable ia nut a releaae al all bur only 
a receipt for the amount then due. A eomproniise and settlement of claim as 
allowed under section 28 of the Hoseberry Act implies a givioK and takiug on the 
part of both parties to the issue. 

Ui'BATiON OF DiHABiLiTir— Pain an» Incokvenibsce. — Where the evidence shows 
that the disability due to a broken bone had ceased, althoutcb the luiln and incon- 
venience resulting from the injury and from the effort to bring the Injured mem- 
ber back into use had not, the applicant is not entitled to further compeniiuliun. 
The compensation law does not pay for pain or inconvenience, but only for loss 
of earning power through disability to labor. 

The facts are stated in the opinion. The release of liability exeeiited 
by the applicant was declared void and an award was made in the sum 
of fowrteen dollars and ninety-four cents ($14.04) for partial disability 
lariting from September 6 to September 27, 1913, in excess of the eom- 
pensation previously paid up to September 6. 

Louis Charles Vercoutere, on July 11th, while in the employ of the 
Standard Oil Company near. Coalin^a in this state, suffered a consider- 
able injury to one of his feet. He received hospital treatment to the 
amount of fifty-five dollars ($o5) and medical service to the amount 
of thirty-three dollars ($33), both provided by the employing company. 
He also received full wages up to and including the 5th day of Septem- 
ber, 1913, the Standard Oil Company having, in that district, adopted 
the system of paying full wages during di>ability instead of the sixty- 
five per cent provided by the act. 

On the 5th or 6th of September, as a condition precedent to receiv- 
ing compensations long due and payable, applicant was retpiired to 
sign a release of all claims against the defendant corporation for any 
further disability grawing out of the accident referred to. Among 
the considerations set forth waj< the fifty-five dollars ($;»i>) which the 
liefendant corporation, not the applicant herein, owed to the hospital in 
which applicant was placed by defendant's directiim, and another item 
of alleged consideration was for medical and surgical services rendered 
applicant, likewise at the direction and at the cost of the defendant 
corporation, and which was in no sense a debt or obligation owing by 
applicant herein. It needs no court to determine that such alleged 



::GoO'^lc 



186 employers' LTABII.ITT ACT DECISIONS. 

considerations were not considerations at all and had no place whatever 
in any purported release of liability under the act. 

A further consideration alleged in the pretended release was the 
payment of one hundred fifteen dollars and fifteen cents ($115.15) 
compensation or wage payments made according to the custom followed 
in that district and in the payment of which no advantageous excep- 
tion was made on applicant's l>ehalf. This Commission has held that 
a compromise and settlement of claim, as allowed under section 28 of 
the Roseberry act, implies a giving and taking on the part of both 
parties to the issue, and that a release extorted as a condition precedent 
to receiving what is already due and payable Is not in fact a release 
at all but only a receipt for the amount then due and paid. We so hold 
iu this case. 

The evidence in this case shows that, at the time of the alleged final 
settlement and discharge of applicant from defendant's employ, appli- 
cant had not in fact fully recovered, that a partial disability existed 
for three weeks longer, by which time the disability terminated, 
although the pain and inconvenience resulting from the injury had not. 
The compensation law does not pay for pain or inconvenience, but 
only for los,s of earning power through disability to labor, and we are 
of opinion that such disability ceased, in Vercoutere's case, by Septem- 
ber 27, 1913, and made our award accordingly. 

A. J. PiLLSBUBY, 

Wn^L J. French, 

Members. 



(No. 61— February 6, 1914.) 

(Chapter S99. Laws 191 1.) 
W. O. CLARY, Appliva, 

AfCtoENT — 1Ieh?iia — Tempo^rt Disability — Operation. — Hernia is more in tlii; 
naturi.' of a disease (ban it \e tbc rpsiilt nf accicliMitnl injury, and whrrt> it is 
immediafeTy occasioned by accident il can inflict no more than a temporary dis- 
ability in most cases; it is remediable by operation, and, when tbe employfr 
offera to bear tbe cost of sn operation and liospital Irealnicut and to pay coin- 
pensntion nbile the patient is ineapneitated from eaming as the result of Ruch 
operation, no more will be required. 

This was an application for compensation on account of inguinal 

hernia. The facts are staled in the opinion. Compensation was 
awarded for partial disability up to the time the applicant rejected an 



D.gitizecbyG00glc 



EMPtOYERS' LIABILITY ACT DECISIONS. 187 

cffer of the employer to pay the expenses of an operation : amount 
$23.40, together with the ecst of a truss in the amount of $6.00. 
W. 0. Clary, in propria persona, for Applicant. 
Oscar Sutro, attorney, for Defendant. 

On or about the 23d of Dec-ember, 1912, one W. O. Clary, a laborer, 
in the employ of the Standard Oil Company, while engaged with others 
in rolling upon a wagou some heavy concrete sewer pipe, suffered an 
abdominal strain which, the next day, resulted in an inguinal hernia. 
By direction of his superior in the employ of the defendant corporation, 
Clary was directed to consult Dr. Abbott of Richmond, who told him 
that he had been ruptured, that he would have to make up his mind 
to undergo an operation and advised him to secure a tru^s, which Clary 
did and applied it as Dr. Abbott directed. Light employment was 
furnished applicant from that time forward, without diminution of 
wages, until on or after the 3d of July, 1913, when, for other reasons, 
Clary was discharged from the service of the company, whereupon he 
made claim for compensation for his injury which, being denied, this 
proceeding was instituted. 

The consensus of medical and surgical opinion runs to the eff(;et 
that hernia is very rarely, in any proper sense, the result of an acci- 
dental injury; that the accident is at best no more than the occasion 
rather than the cause of the malady ; that the origin of the difficulty is 
congenital and more in the nature of a disease than of an injury ; that 
every claim for compen.sation based upon an alleged rupture is to be 
viewed with suspicion. We are of the opinion, however, that in the 
ease of Clary, something, be it ever so slight, did happen to him in the 
way of an injury, and that by reason of such injury his earning power 
was temporarily reduced as measured in an open labor market. 

But, at the worst, an inguinal hernia can inflict no more than a 
temporary disability, inasmuch as it is clearly remediable. Operations 
for its cure are attended with little danger and are almost uniformly 
Bueeessful. Where, as in this cause, the employer offers to bear the 
cost of an operation and hospital treatment, and to pay compensation 
while the patient is incapacitated from earning as a result of the 
operation, it is difficult to see upon what ground a claimant can demand 
more than this. Sound public policy a.ssuredly will not justify tlie 
capitalization of such injury for the drawing of a long continued dis- 
ability pension when, by a relatively simple operation, in ninety eases 
out of the hundred, the injured person can be made perfectly sound for 
the rest of his natural life, and no harm follow failure in the other 
ten eases. 



::GoO'^lc 



188 EMPI.OYEnS' UADILITT ACT DECISTOyS. 

In aeoordHnee with this view, the lodustriai Aeeident Commission has 
nliowed the applicant in this cause sixty-five per cent of his estimated 
loss of earning power consequent upon the injury from the date of 
his discharge from the employment of the defendant conipany up to the 
date when, after a reasonable time during which to coasider the mat- 
ter, he rejected the offer for treatment as above stated. 

A. J. PlU^BL'RY, 

Will J. French, 

Commissioners. 
Note.-— The apHdent In UxiH eaRe_ occurred on September 26. 1913. and was gov. 

'he 1 

B provided by L'hapCer 5G1 of Ihf Laws of 1 



(\o. 79— February 6, 1914.) 
(Chapter 399, Laws 1911.) 
G. \V. Wir.LArtl). Aiipliciint. vb. W. W. AXKERSO.N & COMPANY. an» SOI T1[- 
WKSTEHX SITRETY rXSriiAXi'R COMPANY (a coHroiuTioN). Drfrnd- 

pARTiAi. DiSAniLiTT— Inability to L'ompbtk.^ — A canieotcr who, by reason of his 
flcciilpnt. is unabte to enna^ in his trade to the extent of climbing over nnd 
working ii|>on scnfFoltling. but is able to do car|>c;iiter work which can l)e done 
while working on the gronml, 1b under a temporary i>nrtinl disability, in addition 
to the direM impairment of bis ntrning capacity cauned by tbe accident, by 
reason of his iunbilily to obtain jMsitions upon an eigiiai footing with employe*^ 
not disabled. While inability to tind work is not campensahlp dixabilily. the 
diminishing of his |)ower to I'ompeti' in an opfii market is nn item to lie con- 
sidered iu determining the c'xteiit of permanent partial disHbility, 

The applicant was injured on .March 24. 191S. while working upon 
the expasition grounds at San Francisco in the employment of defend- 
ant W. W. Ander,son & Company, by a fall causinfr a bruise of the flesh 
and hone of the right leg. One hundred fifty dollar.^ ($150) was paid 
as compensation by the defendant. The only issue arising in this pro- 
ceeding was as to the nature and duration of the applicant's disability. 
if any. after the expiration of the period covered by the compensation 
paid. The Industrial Accident Commission, successor of the Industrial 
Accident Board, found that as a result of the accident the applicant had 
suffered a temporary total disability of one and one seventh weeks, 
entitling him to disability indemnify in the sum of thirt.v-fonr dollars 
and eighty-three cents ($34.83). It further found that the applicant 
had sustained a temporary partial disability commencing at the end of 
this period. May 3, 1913. and la-sting until October G, 1913, a period of 
tweut.^■-two and two-seventh weeks. The indemnity ftir this period of 
partial disability was fixed at the -sum of seven dollars and fifty cents 



D.gitizecbyG00glc 



employers' i,tability act decisions. 189 

($7.50) pep week, amounting to a total sum of one humlred sixty-eight 
dollars and twenty-one cents ($168.21). 

0. \V. WiUard, in propria persiiiia, for Applii-ant. 
IV. Y. Lloyd, attorney, for Defendants. 
Applicant in tlii.s cause is a carpenter and, on the 24th day of March, 
1913, suffered an injury by accident to one of his knees and to the shin 
bone. By the 15th of April he was able to return to the work of his 
trade, provided that work could be furnished him on the ground, but 
he could not climb ladders or work upon scaffoldings. It is matter of 
general knowledge that only about twenty-five per cent of the carpenter 
work that is done can be doue on the ground, which makes it difficult 
for those who are not able to work off the ground to find work to do. 
That is, one who is crippled as applicant was by reason of his injury 
finds himself unable to compete in securing employment on equal terms 
with men who have two good legs, and while the compensation act does 
not contemplate that compensation shall be paid for inability to find 
work, but only fof inability to do work, it does recognize as a partial 
disability an inability to do the work that the injured employee was 
doing at the time of the injury. Consequently, in addition to a tem- 
porary total disability indemnity la.sting while he was unable to work 
at all, we have allowed applicant a temporary, partial indemnity pay- 
ment of seven dollars and fifty cents ($7.50) per week from the date 
when he finally ceased work until the 6th of October, by which time, by 
his own testimony, such disability had practically ceased. Ilis recovery 
was not, at the time of the hearing, wholly complete, but he was so far 
convalescent as not to be disabled from following his trade, although 
with more or less of inconvenience. The law does not compensate for 
inconvenience in working, or for pain suffered while working, but only 
for disability to work. 

A. J. PlM-SBUBY, 

Wu.i, J. French, 

Commisxioners. 

NoTB. — Upon (he irqucKt of the applicant, who whb dlaimtli'tlt'd with the award 
Riven him. the prweptltnKB werf ordered reopened on Marth a. 1914, for tho puriHise 
at taklnR' additional teBtJmony. Purlher tCHtlmony whr (nken on Man-li 11 and 
March n. 1914. Thereafl.T an astvnumt of sfttlrmenl was exwuted Iw-lwivn the 
parties to thin proceedlnK l>y whii-ii, In coniil deration of (he payment of A\19 hundred 
doilarH (ISOO.OO) the applii-ant released (he defi-ndant employer and 'nsuranee cariier 
from all lluhilKy. In i-onsequeine thereof the pro<"eding w.-lb on Novembi-r 3. 1314, 
diamixiu^d and the defendants dist'tiareed from all liability. 



D.gitizecbyG00glc 



190 EMPLOYERS LIABILITY ACT DECISIONS. 

(No. 63— February 11, 1914.) 

(Chapter 39S, I^wh 1911.) 
JOHN F. BURNS. Applit-i 

The applicant was employed by the defendant on a dredger operating 
in the city of Maryaviltp, Califoirnia. On September 3, 1913. he fell 
through an open hatchway a distance of ten or eleven feet, suffering a 
severe injury to his back in the lumbar region. Medical and surgical 
treatment was provided by the defendant and compensation for tem- 
porary total disability had been paid to the injured man in the sum 
of $144.60, when the applicatitm was filed on October 6, 1913. 

An award was made for temporary total disability in the sum of 
$157.36 and for temporary partial disability $128.37, credit being 
aliowotl, however, for the payment theretofore made, and leaving a 
balance due the injured employee amounting to .$141.13. 

Ira B. Cross, 
Secretary. 



(No. 04— February 16, 1914.) 

(Chaptci- 399, IjiWH 1911.) 



Notice of Injuby— Actual Knowldxik Treated as Notice. — The low does not 
require a notice of claim to be jcivcn within thirty days, but only that notice of 
the accident be siveu within that time, and where the defendant, through its 
officers, baa actual knowledge of the occurrence of tbe accident aud its disastroiiG 
results, when it happened, it could not bave been misled or prejudiced by the 
failure of applicants to jtive formal written notioe of the accident 

Wii.pui, Misconduct — Disobedience op Kvi.B — Mistake in JiimiMBNT.— Where a 
truHtworthy workman wbs permitted (o use his own judgment aa to how hazanl- 
ouH work was to be done, and used a method known by hiin to be forbidden by 
the rules of his employer, tind it appeared that his action was taken under the 
exigencies of the time and situation and in the spirit of "tuking a chance," he 
miKl't be chaixesble with negligence or misconduct, but bis act was not wilful in 
the sense of setting up his mind in wilful opposition to that of his superior in sn 
net of premeditated disobedience to authority and did not, therefore, constitute 
wilful misconduct. 

This was a claim for death benefits by parents as partial dependents 
upon their son, who last hi.s lift* by electrocution. The facts are stated 
in the opinion. Award was made in tbe sum of $1,558.44. 
Pillsburif, Madison & Siitro, attorneys, for Defendant. 

On the 28tli day of February, 1913, one Webb P. Salmon, an electric 
lineman in the employ of the Pacific Telephone and Telegraph Com- 
pany at Scima, was electrocuted. His father and mother, the appli- 
cants hi^rein, made claim for a death benefit on the ground of partial 



employers' I-IABILITr ACT DECISIONB. 191 

dependenpj. This flaira was resisted by the defendant corporation on 
the grounds that the death of said Webb P. Salmon was the result of 
his own wilful misconduct; that the applicants were not dependents of 
deceased; that defendant was misled by failure of the applicants to 
give notice of the accident as by law reci«ired and that material evi- 
dence had thereby been lost to defendant. 

Taking up these defenses in regular but reverse order, the evidence 
of defendant's own witness, W. B. Glenn, shows conclusively that he, 
Glenn, wire chief of the defendant telephone company at Selma, 
knew of the accident and was on the ground within a quarter of an 
hour of its happening; that within an hour of the happening of the 
accident Mr. Bardow, Glenn's superior at Fresno, had been notified 
and that both Mr. Bardow and his superior, Mr. Lowerie, division 
superintendent with headquarterx at Sacramento, were on the ground 
and knew all about the accident. In view of these facts, we fail to see 
how the defendant could claim to have its interests prejudiced by want 
of notice. The law does not require that notice of claim be made within 
thirty days, but only that notice of the accident be given within that 
time, and in this instance the defendant, through its officials, knew of 
the happening of the accident before it was known by the applicants 
herein. 

While applicants live in Elmira, New York, and it was impossible 
for this Commission to place them upon the witne-ss stand and (juestiou 
them orally, nevertheless interrogatories were prepared and submitted 
to them and their evidence was taken before a notary. Their sworo 
testimony taken in connection with that of Mr, W, B. Glenn, above 
referred to, who testified that he rememhercd hearing deceased speak 
of having to send money home, warrants the finding that applicants 
were partial dependents of said deceased employee. 

This brings us to a consideration of the charge of wilful misconduct 
on the part of the dead employee. He was sent out to string a wire 
to an "oulside move" and was sent alone. The distance to be covered 
was only about four poles. It was necessary to carry the wire over a 
"service wire" about twenty feet from the ground which ran across 
the alley. On the side of the alley ran high power wires on poles thirty 
feet high. Lineman are furnished hand irons with ropes attached to 
use in throwing lines over .service wires, lint deceased was without such 
'appliances on this occasion. Consequently, he ftustened his pliers to 
the wire he was carrying and attempted to throw it over the service 
wire, a method not infrequently used when hand irons and ropes are 
not at hand, although it was contrary to the rules of the defendant 
company. In making the throw the pliers went wide of the mark and 
fell across two high tension wires of the power line, resulting in the 



::GoO'^lc 



192 EMPLOYEBS' LIABILITY ACT DECISIONS. 

elect ri 1 (; II ti Oil of the deceaseii. Did this act constitute wilful miscon- 
duct within the ineauiiig of the aetT 

"We think not. Det;eased'.s superior, Olenn, remembereij that he had 
cautioned deceased in relation to the rules of the company, when he 
entered employment under him two months before, but could not 
remember havinp done so afterward. He had found deceased a com- 
petent and trustworthy workman and had trusted him to use his own 
judgment an to how the work wa.s to be done. Deceased's act in using 
the plienf and wire instead of rope and hand iron was a mistake in 
judfnnent. It may even have heen neEliRence of a serious character. 
It mifiht. by the greatest latitude, even be characterized as misconduct 
in that he. under the exigencies of the moment, disobeyed a rule that 
had not been called to his attention for two months, if at all, and "took 
a chance," but by no stretch of the imagination can such an act be 
regarded as "wilful." a setting up of the mind in wilful opposition to 
the mind of his .superior in an act of premeditated disobedience to 
authority. 

A. J. Pn,L8BU8Y, 

"Will J, French, 
H. Weinstock, 
Coiumvi-iiotinrs. 



(No. 88— February 24. 1914.) 

(Chapter 399. L^ws 1911.) 
,IENNIE «. BrTTERFlKU). Applin 



Partial Depbndknct^Mikor rniuiKKN — Custody of Ciiii.cirrn Awarder to 
Divorced AV'iKE.^W]iere an erapioype has beeo divorcpd prior lo liisi dt^ath b.v 
iDtluntrial nccident. and tb« cuRlod; of tlip minor children of himtwif and bin 
divoTTPd wife is awarded to the latter with a pravinion for niimony for Cht'ir 
Riippnrt, auL'h children arc partial dcpcndpnlx upon their father and are entitled 
tn an award in the event of liin death by accident arisini; out of hiR em]itn,vment. 

This is an application for a death benefit. The applicant, Jennie Q. 
Butterfield, is the divorced wife of Waldo W. Butterfield, deceased, and 
brings this action on behalf of herself and the minor children, who 
were awarded to her by the decree of divorce. The deceased was 
employed by the defendant Standard Oil Company as a carpenter, and 
wa.s killed by a fall on December 5. 1913. while at work. The only 
(jUe.stlon in issue wa.s as to the legal .status of applicant and the minor 
children a.s dependents of the deceased. The evidence showed that the 
applicant had lieen awarded the cuslody of the minor children with 
alimony at the rate of $5.00 per week for the support of herself and 



D.gitizecbyG00glc 



employers' liability act DECtSIONS. 193 

the said children. The percentage of his average earnings which 
deceased was required by the decree to contribute to his former wife 
and family was computed to be 26.6 per cent, and an award was there- 
fore made in favor of the applicant of 26,6 per cent of three timea the 
average annual earuings of deceased, amounting to a total payment 
to the applicant of seven hundred eighty dollars ($780.00). The sum 
was made payable at the rate of ten dollars ($10.00) per week for 
seventy-eight consecutive weeks, and until fully paid. 

Ika B. Cross, 
Secretary. 



(No. 81— March 3. 1914.) 

(Chapiter 399. Lnws 1911.) 

MANUEL NAZA. AppliMttl. vr. SIEIlItA AND SAN FRANCISCO POWER 

COMI'ANY <A CORPORATION), Defendant. 

The facts are stated in the opinion. The only issue was as to the 
duration of the disability. No award was made except for compensa- 
tion aln-ady paid by the defendant in the sum of four dollars and 
forty-four cents ($4.44). 

S. L. Nash, attorney, for Applicant. 

Vliickcring *£■ Gregory, attorneys, for Defendant. 

Manuel Naza was employed as a rigger by the defendant corporation 
at Strawberry Dam in Tuolumne County, California. lie was sent 
aloft on a derrick and the derrick fell, precipitating him some thirty- 
three feet to the ground. How he escaped serious if not fatal injury 
is unexplainable, inasmuch as the derrick weighed about two tons, 
unless it was that the derrick fell across a rock some four feet high and 
did not fall upon \aza. Applicant was somewhat contused ajid suffered 
a concussion of the brain which did not. however, affect him long. lie 
was sent to a hospital and treated for some ten days. He returned to 
work on the 13tli of October, but worked only a few days when he gave 
up his job and came to San Francisco, where it appears that he has 
since spent much of his time in hed. lie manifests various symptoms, 
hut the Commission has subjected him to the most careful examinations, 
has had him under obser^'ation in a hospital, and only one of five 
reputable phv-sicians can find anything the matter with him, and that 
one, under date of January 12th, attributed his disability to labor to 
his long eonjinuauce in bed in an ill ventilate<l room. During this time 
applicant failed to take exercise, yet he has not fallen off in flesh, is 
well muscled, and, so far as expert testimony shows, is perfectly sound, 
notwithstanding his severe experience and hia pretensions to the con- 



D.gitizecbyG00glc 



194 ■ EMPLOYERS LIABIUTT ACT DECISIONS. 

trary. This Commission has no way of detennining disability except 
upon the testimony of the best surgeons and diaguostii-ians at its com- 
mand, and when these unite in pronouncing an applicant sound there 
is. nothing for this Commission to do but to at-t in accordance with their 
testimony. 

A. J. PejISbukt, 
Will J. French, 
II. Weinstock, 
Commissioners. 



(No. 89— March 3, 1914.) 
(Chapter 399. Laws IBll.) 
Appliraal, v». E. I. IHT POST DE NEMOfRS POWDER 
* CORPOBATION), Drfrndant. 

Rfj.fasb — FiNi>iNO OF Fact. — Evidence held to show llint the appliciint ex(>nitMl a 
reicaie with full knowledge of ilR tenua nnd xienitirHiicr. tliat the rt'leaiii' wax 
enaentially fair to the applicant, and is therefore binding upon him. 

OBijiy IN Makino Application^Stai.k Claimh.— Stale claiuis are not looked npou 
with favor by the CamiuixBiun. 

The facts are stated in the opinion. No compeiLsation was awarded. 

Ealph P. Harris, in propria persona, for Applicant. 

I'ill-sbunj, Miulison & Sutro, attorneys, fur Defendant. 
The applicant in this case was employed by the defendant in its 
powder keg manufacturing plant near ^anta Cruz operating a machine 
used to cut metal discs from which the tops and bottoms of metal 
powder kegs were made, and while so employed, and on Julv 27, 1912, 
applicant suffered the injury complained of, consisting in the complete 
severance of the little finger at the knuckle joint of the right hand, 
lie was given prompt and adequate surgical treatment for which the 
defendant has paid in full. Compensation was paid to him up to and 
including September 6, 1912, at which time he was discharged as cured 
by the attending surgeon, who testified that the result of the treatment 
was perfect. The defendant refused further payments of compensa- 
tion after the applicant was discharged as cured. The applicant made 
several requests for fnrther payment, and en or about October 2, 1912, 
submitted to the defendant a claim for additional compensation in an 
amount specified by him. The superintendent of defendant's plant 
cgrced to take the matter np with the eastern office of the company at 
Wilmington, Delaware, and did forward the claim. Befor#any answer 
was received from the eastern office of the company, and on October 7, 
1912, the applicant reentered the employ of the defendant in the keg 
factory at operating machines .similar to that which he was operating 
at the time he was injured. Thereafter and on October 21, 1912, while 



employers' I.fABILITY ACT DECISIONS. 195 

the applicant was in the employ of the defendant, he was paid an addi- 
tional compensation in the amount claimed by him, namely twenty 
dollars and forty -four cents ($20,44), at which time there was pre- 
sented to him and cxet-iited by him in the presence of witnesses a 
receipt and release covering the amount received by him, and releasing 
the defendant from any further liability. The applicant continued in 
the employ of the defendant until December 1. 1912, when he volun- 
tarily left snch employment. This application was filed more than a 
year thereafter, namely, February 4, 1914. 

The applicant claimed at the hearing that he did not understand the 
receipt and release signed l)y him. The testimony on the part of the 
defendant makes a strontr showing that the receipt and rclea.se were 
explained to the applicant and read over to him. It clearly appears 
that nothing was done to lead him into a mi.sunderstanding as to the 
character of the instrument signed by him. The applicant himself 
states that he was to receive no further payments. 

It is the opinion of the Commission that there were present in this 
case all the neces.sary elements of a valid comproniise. The additional 
payment claimed by the applicant and made by the defendant to him 
when he executed the release was made after the applicant had l>een 
discliar<fed by the surgeon as cured, after preliminary' negotiations 
concerning the amount of the settlement, and. it appears from the 
testimony, was made as the result of negotiations carried on upon s 
give and take basis, at arms length, and with a fair understanding of all 
the terms of the campromise. The Conunission holds that the compro- 
mise was made in this case in the manner contemplated by the provisions 
of section 28 of chapter 399 of the Laws of 1911. and was therefore a 
good and valid compromise so that the applicant is not entitled to any 
I'nrther payment from the defendant on account of the injurj' described. 

It is significant that the application in this case was not filed until 
more than a year had elapsed from the time the compromise payment 
was made, and more than a year after the applicant voluntarily left 
the employ of the defendant. The lack of diligence on the part of the 
applicant in making his claim fur additional compensation has an 
important bearing upon the question as to whether or not he under- 
stood the terms of the compromise. His position is much weakened by 
his failure to exercise diligence in making his claim. Stale claims are 
not looked upon with favor by the Commis-sion. 

A. J. I'lLISBURY, 

Will J. French, 
II. Weinstock, 
Coinmitisioners. 



D.gitizecbyG00glc 



EUFLOTEns' LIABILITY ACT DECtSIOKS. 



(Na 12— March 4, 1914.) 

(Chapter S99, Laws 191].) 



Depbnih;nt9 — Evidb«cb. — It is held heroin that the evidence offered to prove the 
tact at dependency of a minor child of the doceHaed employee by a former wife, 
who liad i)een divorced and had remarried and retained the custody of such child, 
is inBut!i(-ient to prove such fact of de|>endeiicy, and that Ihe entire death tienefit 
be paid to the widow of the deceased employee. 

This was aQ application by the etiiplojcr lo have determined con- 
flit-ting claims of dependency. The fact^ are stated in the opinion. 
An award in the sum of $3,585.60 was made in favor of the widow of 
the deceased employee, as solely and wholly dependent, to the exclu- 
sion of a minor child by a former marriage, the custody nf whom had 
been with the divorced mother over a long period of time, she having 
remarried. 

diaries W. Slack and Chaunciy tf. Goodrich, attorneys, for Appli- 
cant. 
Frank F. Atkinson, for Defendant Ida May Selfridge. 
J. A. Halpin and W. C. ('avUt, attorneys, for Defendant Esther 

Merle Selfridge. 
//. E. Savage, of Connsel. 

On the 2d day of September, 1!»12, one W. O. Selfridge was killed 
liy accident while in the empluy of the N'atomas Consolidated of Cali- 
fornia and while working on a dredger in Sacramento County, in this 
state. In 1896, 1897 or 1898 he had married, the issue of which mar- 
riage was a daughter, Esther Merle, one of the defendants in this 
proceeding. In 1905, his wife, mother of E.sther Merle, obtained a 
divorce from Selfridne. Whether or not the court granting the divorce 
made any decree in relatioo to Esther Merle does not appear in docu- 
mentary form, for the reason that the records in the case were all 
destroyed in the great fire in San Francisco in 190C, but it is under- 
stood that no mention wa« made of the child in such decire. At all 
events, the mother retained the ciustody of the child during most of the 
time and, for more than two years prior to the death of Selfridge, she 
retained such custody all of the time. 

In April, 1910, Selfridge remarried, his wife being Ida May Self- 
ridge, one of the defendants in this proceeding, with whom he was 
living at the time of his death. 

This prcM'ceding was begun by the Natomas Consolidated of Cali- 
fornia with the view of determining to whom Ihe death benefit was due. 



D.gitizecbyG00glc 



employers' liability act decisions. 197 

but with no purpose to avoid paying such death benefit. After the 
tiling of the application for the adjustment of the claim, defendant 
Esther Merle Selfridge, by her attorney, began proceedings in the 
Superior Court of the city and county of San Francisco, with reference 
to the issue involved and, by consent of all the parties, a continuance 
was had as to proceedings before the Industrial Accident Board pend- 
ing a decision by the court. Such decision was rendered sustaining the 
constitutionality of the Roseberry Act (chapter 399, Laws of 1911), 
wherenpon the Industrial Accident Commission, as successor to the 
Industrial Accident Board, proceeded with the hearing to final deter- 
mination, without participation, however, by Esther Merle Selfridge, 
although her attorney was fully advised as to the time and place of 
holding such hearing. 

The issue involved is as to whether or not Ida May Selfridge, the 
wife of the deceased workman at the time of his decease, is the sole 
and only dependent of said W. O. Selfridge, or if Esther Merle, child 
by a former marriage, is also a dependent of such deceased employee 
and entitled to part of the death benefit. 

We think it iinnece-aary to the determination of this controversy to 
consider whether or not the phrase, "solely and wholly," a^ used in 
Mibseetion 3 of section 9 of chapter 399 of the Laws of 1911, means 
"the sole and only" dependent of the deceased employee, as counsel 
for defendant Ida May Selfridge affirms, for the reason that the evi- 
dence offered to support the claim of the dependency of defendant 
Esther Merle Selfridge is not, in our opinion, sufficient to establish any 
dependency at all upon her part, either in law or in fact. Such con- 
tributions Bs were made by the deceased employee to the mother of 
Esther Merle during the year 1910 were made to aid in paying for a 
piano for Esther Merle and not for her support, l-lsther Merle was 
dependent upon her mother for support; her mother had had almost 
constant custody of her since her mother's divorce from Selfridge in 
1905 and was entitled to such custody, and with that right of custody 
there went the obligation to support. If the conrt granting the divorce 
had made an order requiring Selfridge to contribute to the support of 
the child, the case of Esther Merle might be differently viewed, but no 
such requirement to contribute was made, and for more than two years 
prior to the death of Selfridge. at any rate, no snch contribution was 
made. We regard the evidence adduced in support of the dependency 
of defendant Esther Merle Selfridge as insufficient to establish the fact 



D.gitizecbyG00glc 



198 EMI'LOYBRh' LIABII.ITT act DEClSIO^fS. 

of her dependency, and therefore award the death benefit of the full 
three years' average annual eaniing8 to defendant Ida May Selfridge, 
widow of said W. 0. Selfridge, deceased. 

A. J, PiLLSBUKV, 

Will J. French, 
H. Weinstocs, 
Cotnmissiojiers. 

Note. — An application tor review of thp awnrd In this esse lina been Hied by the 
upptlcHtit. Nntomas ConHondaled of California, and the record has been Imnsmitted 
to the clerk of the Superior Court of Sacramento County, California, pursuant to 
the provlKions of section 18 of cliapter 399 of the Lawn of 1911. Tlie defendant. 
Esther Merle Selfridge, has brought suit for damages against the applicant. 



(No. 95— March 17, 1914.) 
(Chapter S99. Lawa 1911.) 



//, H, TvrHbaiigh, in propria persona, for Applicant. 

John T. Pigott, attorney, for Defendant. 
The applicant in this case. H. II. Turnbaiigh, was injnred on Decem- 
ber 5, 1913. by having his left hand and arm caught in some machinery 
and pru.<ihed. net'es-situting amputation of the ami above the elbow. At 
the time of the accident the ap]jlicant wiis employed by the defendant 
Natomas Ctuisolidated of California as an oiler upon one of its dredges. 
The only issue was as to the average earnings of the applicant, which 
were established by stipulation at the hearing to be the sum of three 
dollars and fifteen cents ($3.15) per day for seven days work per week. 
The average annual earnings were therefore computed to be the sum of 
one th(tiisand fourteen dollars and thirty cents ($1,014.30) and a 
partial permanent disability award was made in favor of the applicant 
of three times this amount, in the sum of three thousand forty-two 
dollars and ninety cents (1^3.042.90). payable at the rate of $5.52 per 
week. The applicant was also awarded as a total temporary disahility 
indemnity the sum of one hundred twenty-three dollars and eighteen 
cents ($123.18) for nine and five-sevenths weeks disability. 

Ira B. Cross, 
Secretary. 



D.gitizecbyG00glc 



EMPLOYERS I.IABILITT ACT DECISIONS, 199 

(No. 86— March 20, 1914.) 

(Chapter 39». I-aws 1911.) 
ANDREW C. SHANNO.V, AppUcanI, ik. HEHCT'LES POWDER COMrANY (a 



The facts are stated in the upitiion. The uiily questioo in issue was 
a« to the nature and ditration of the disabilit.v of applicaDt. The Com- 
mission found that the applicant had hot sustained any disability or 
loss of earning power and denied the application. 

On the^2d day of Septemlwr, 1913. one Andrew C. Shannon, was 
injured by accident while at work for the Hercules Powder Company, 
lie was engaged in carrying cases from a car to a packing house. 
While going through the doorway he fell and injured his back. He 
continued to work for seven days and then went to the doctor who 
applied bandages, and at the end of eight days, to wit, October 7, 1913, 
he began work once more. His employer, in order to favor him, fur- 
nished him with somewhat lighter work than he had been accustomed 
to do. He continued to work until Xovcmbt^r 7th, when a number of 
employees were laid off, and among them was Shannon. He was 
instructed at this time to return to work in a week, but failed to report 
ut that time, and when he did report, some time later, the Hercules 
Powder Company had no place for him. 

Prom all the evidence in this case it appears that Shannon eould have 
gone back to work a week after he was laid off and been able to do the 
same class of work that he was doing at the time he was laid off. He 
himself testifies that he was accustomed to do clerical work and cer- 
tainly he could have done any work of that character if he had been 
able to obtain employment of that nature. The applicant suffered 
some pain and inccnvenience on account of his injury but we can not 
see. under all the circumctances of the case, that he him suffered a loss 
of earning power on account of the injury. The act compensates only 
for loss of earning power and not for an.v suffering or inability to do a 
certain class of work. We think, therefore, that the applicant in this 
case is not entitled to any further compensation. 

A. J. Pu,i^BrRY, 
Will J. French, 
H. Weinstock, 
Comviissioners. 



D.gitizecbyG00glc 



200 employers' uability act decisions. 

(No. 91— March 20, 1914.) 

(Chapter 399, Imws 1911.) 
JOSEPH EACOPETTI. Applicant. \s. XATOMAS CON'SOLIPATED OF CALI- 
FORNIA (A coRPOKATiuN ) , Defendant. 

Dl'bation of DiSAnmiT — Fbactube — Rbcovebt ok Use of MEunEB. — .After a 
broken bone has been proiwrlj- set and lias knit strongl.v toKether, it nsunlty 
happens that aome pain and inconveni^noe occur in jtcttiug tbe injured member 
back into uae, especially where it has been kept immobile during the process of 
healinjt- The ouly way to make (he injured member apiin useful is to use it 
notwithstanding sucli inconvenience. No coiai)cnBation will therefore be awarded 
to the injured employee after lie is pronuuni'od by bis physicians able to return 
to work but he refrains from so doing because of such pain and inconvenience in 
regaining the use of (he member. 

This is au applicatiuD for a disability award. The facts arc stated in 
the opinion. The comjwnsation asked for was denied. 
Joseph EacopcUi, in proprui persoiui, for Applicant. 
Jaliii T. Piyolt, attorney, for Defwidant. 

Joicph Eacopetti was injured through accident tin the first day of 
January. 1913, while working on dredger No. 4, near Fair Oaks, Hacra- 
inento (.'ounty, California, and while lowering a heavy iron plate to the 
Itiwer deck of the dredger. The plate got away fr«ni the men handling 
it and fell upon applicant, breaking the right leg below the knee joint. 
The employer promptly furnished medical, surgical and hospital treat- 
ment, with the result that the bone completely reunited and applicant 
was practically cured at the end of forty-one weeks from the date of 
the accident. Expert medical testimony shows that the inconvenience 
complained of as remaining after the patient was discharged as cured 
is such as will pass away by use and not such as amounts to a disability 
within the intent of the act, i. c. to earn as much as the injured 
imployee was earning at the time of his injury. It is matter of com- 
mon knowledge that in nearly all cases of fracture where the treatment 
recjuires the injured limb to be immobilixed, that is, placed in splints or 
a plaster cast, some inconvenience and some pain follow the getting of 
the injured limb back into use after the healing of the injury ha.s 
become ciunplete. The only way to make the injured member again 
useful is to use it, notwithstanding such pain or inconvenience. It is 
not the policy of the Indu.strial Accident Commission to discourage 
such use by allowing compensation payments after the injury has in 
fact healed and after the alleged continued disability is wholly within 
the keeping of the injured person himself. The allowance of a further 



D.gitizecbyG00glc 



EMPLOYEIio' LIABILITY ACT DECISIONS. 201 

(roni|)ensatian of $28.50 in this c-ase is due, not to a continued disability 
beyond October 15, 1913, but to an error of the employer in computing 
compensation up to that date. 

A. J. PiLLSBUBY, 

Will J. French, 

Harris Weinstock, 

Comn 



(No. 94— March 23, 1914.) 

(Chapter 199, Laws 1911.) 

BENJAMIN NUDING. ApplU'aHl. vs. V>\ R WHALIN, ani> SOUTHWBSTBltN 

SUItETY INSURANCE COMPANY <a ctrporation), DctenitottU. 

DuBATiOK or DiSADiLiTT.^ — An iojurt-d ^niploj'uv ia not eutitl^d to com pen an t ion for 
diBability for any period after returning lo work, reKardless of pain or iucon- 
venience in atteudins to bis work. I>isabilily compensation ia awanl<>d only for 
loiis of earning power and not for pain and inconvenienec unaccompHnicd by aurh 
loss of earning capacity. 

The facts arc stated in the opinion. An award was made in favor 
of the applicant in the sum of twenty-four dollars and eleven cents 
($24.11}, this being compen.sation for total temporary disability for a 
period of one and two sevenths weeks. No compensation was given for 
applicant's pain and inconvenience after returning to work. The 
applicant wa.s, however, awarded hLs reasonable medical expenses, as 
his employer had !tad an opportunity to furnish medical treatment and 
had failed to da so. 

Benjamin Sudiiiy, in propria pcrxonu, for Applicant. 
W. E. }Vhaliii, in propria jitrsoiM. 

Hoy Bitjham, attorney, for Defendant Southwestern ynrcty Ins\ir- 
ancc Company. 

The employee in this case was injured by a fall from a building, on 
June 27, lfll3, whereby his back was wrenched and be s-nifercd a severe 
strain. After being oif two weeks he relurneci to work, and worked 
continuously for the next month, his employer favoring him by not put- 
ting him at heavy work. After stopping work for the defendant in 
this ease he worked for various other parties from whom he could obtain 
employment, but did not file any applieaticm for compensation until 
February 18, 1914, about eight months after the accident happened. 

According to the evidence, the applicant at no time after he went 
hack to work was unable to perform ordinary' labor in his trade. Wv 
was inconvenienced, and had some pain on account of the strain which 
he had received, but taking the testimony shown by the medical exam- 
inations, any loss of earning power which he suffered could not be 



Goo^^lc 



202 employers' liabilitt act decisions. 

attributed to the injury by aivident. The medical referee states that 
the inconvenience and pain which applicant suffered were of a medical 
and not n surgical nature. Therefore the applicant can not be said to 
have suffered a loss of earning power on account of his injury by 
accident, and is not entitled to compensation after he resumed work on 
July U. 1914. 

A. J. PlLLSBUHY, 

Wnx J. Pkench, 
II.\HRrs Weinstock, 
Commissioners. 



(No. 98— March 26, 1914.) 

(Chapter 399, Laws 1911.) 

I:NITED states STEKL PRODTCTS COMPAXV, ApplicanI, vs. I'KTE MEI.^ 

I,OKAS. Defendant. 

I'ESCENTAOE OK PEBWANEST DlSABILITT FlNlHNU OK FACT. — ApillicHnl follUd to 

Uavp BUStnitipd thp con]i>li>te Iors of hearing in tlie left ear and a fifty iht oent 
inipnirniPDt of th? hcarinf; of tlie right ear, botli iiermaocnt, and amounting to 
n twentj'-ouc per cent |>rrman«Dt disability. 

The facts and amount awarded are stated in the opinion. 
G. E. Weaver, attorney, for Applicant. 
M. Oppeiihcim, attorney, for Defendant. 

On the Sth day of December, 1913, while overturning a steel purlin 
at applicant's works, Pete ]Melluuas failed to withdraw his bar from the 
slot into which it had been thriwt in order ta raise the purlin upon 
edge and, when it went over upon its side, the bar went with it and 
struck Mellonas on the aide of the head below the ear, fracturing the 
base of the skull over the mouth and otherwise injuring him. For 
some days his life hnng by a thread, but the bones knitted together and, 
at the date of the hearing, Alellonas had practically recovered except 
that, as the medical testimony and reference shuws to he the fact, the 
hearing of the left ear has been wholly destroyed and that of the right 
car injured to the extent of one half of its normal efficiency. Inasmuch 
as Mellonas is a common laborer this injury will not greatly interfere 
with his ability to do the work that he has been accustomed to do, but 
will interfere to a considerable extent with his ability to compete in 
securing employment with men who pos.sess normal hearing. Accord- 
ing to the best information the Industrial Accident Commission can 
olitain, this inability to compete will amount to 21 per cent of total 
efficiency and therefore involves a weekly loss of earning power of 
two dollars and scvpnty-five cents (^2J5). sixty-five per cent (65%) 
whereof equals one dollar and seventy -nine cents ($1.79). Inasmuch as 



C^nOO^^IC 



EMI'LOYKRS' LIABILITY ACT DECISIONS. 203 

this case fell under chapter 899 of the Laws of 1911, defendant is 
entitled to receive thie allowance for fifteen years less the number of 
weeks' duration of his temporary total disability, whieh continued for 
fourteen weeks from the date nf the injury. If the sum thus awarded, 
thirteen hundred seventy-one dollars and fourteen eents ($1,371.14) 
were commuted into a lump sum at its present worth ealeulatctl at 6 per 
<-ent, its etiuivalent cash in hand would be nine hundred twenty-one 
dollars and twenty-six cents ($921.26). 

A. J. PlI-I^BURY, 

Will J. French, 
Harris Weinstock, 
Commissioners. 



(No. 96— March 27, 19U.) 

(Chapter 3»9. "Lave 1311.) 

MAMMOTH COrrRR MIMNC. COMPANY OF MAINE (a cobporation ) , Appti- 

Cttnt, VS. MAKY .T. RKINtX-KE. Dc/cnrfant. 

The fact^ are stated in the opinion. The only issue was as to the 
extent of [lartial dependency of the defendant, Mary J. Reinecke, upon 
the earnings of her deceased son, William C. Reinecke, for support. 
An award wa.s made in favor of the defendant in the sum of nine hun- 
dred dollars ($900.00), payable at the rate of twenty-six dollars and 
twenty-five eents ($26.25) per week for thirty- four weeks, with a final 
payment of seven dollars and fifty cents ($7. ■")()) to complete the award. 
Alfred Sutro, attorney, and 6'. W. Mftralf, manager, for Applicant. 
Mary J. Reinecke, in propria persona, for Defendant. 

William C. Reinecke was accidentally killed on August 21, 1913, 
while in the employ of the Mammoth Copper Mining Company, under 
conditions that would entitle the dependents, if any. to eimipensation 
under the provisioas of chapter 399 of the Laws of 1911, approved 
April 8, 1911. The defendant. Mary J. Reinecke, is the surviving 
mother of the deceased and claims to have" been partially dependent 
upon him at the time of his death. Her claim was denied and resisted 
by the applicant, which filed its application Iwfore the Commission to 
have the question decided. This question of partial dependency was 
the only one at issue. 

In addition to the testimony of the defendant there was evidence 
given by a numl)er of witnesses that the deceased son of the defendant 
had in past years contributed substantially to her support; that the 
deceased was a steady, industrious workman who had a full apprecia- 
tion of his filial duties to his widowed mother; that she resided in the 
country, on a farm owned by herself and her children; that the farm 



204 EMPI.OYEnS' LIABILITY ACT DECISIONS. 

was conducted jointly by herself and her children, and the proceeds 
derived therefrom were used for their joint maintenance and support; 
that the remittances from the deceased son to his m()ther amounted 
approximately to twenty-five dollars ($25,00) a month and to the 
a^regate sum of three hundred dollars ($3011.00) per year; that said 
money was necessarilj' used hj' the defendant, Mary J. Reineeke, for 
her personal benefit. 

While the testimony in support of the defendant's claim is not, per- 
haps, with reference to the extent of her partial dependence upon her 
son, afl satisfactory as could he desired, there can be little doubt that 
she was, as a matter of fact, partially dependent upon his earnings. 
Her own testimony as to the extent of her dependency is the only defi- 
nite testimony before the Commission, the rest beinp merely corrobo- 
rative. There are not even available any letters passing between 
mother and son. However, it is believed that,' taking into consideration 
the simple modes of life on the part of both the mother, who lived on a 
farm, and the son, who worked in » mine, the claimant, upon whom is 
cast the burden of proof, has established her claim by a fair prepon- 
derance of the evidence. 

A. J. Pn,LSBuBy, 
WiLi, J. French, 
Commissioners, 



(No. 90— March 28. 1914.) 

(Chapter 399, Ijiwb ISIL) 

r-rUI R. NKI-SON. Applieniii, vs. .S^TNA LIFE IKSIRANOE COMPANY (a 

COBPOBATION ) , AND LINDGKEN COMPANY (a ookpoeation ) , Defendants. 

COLBSB OF THE KSIPLOVMENT— PKEMISES OF TUB E.MPr.OTEB^ — GOINO TO ANfl FBOM 

Work.— Where an pmployee is injurpd after the wiiislle is blown to atop work 
for tlie dny, by an elevator accident while leaviOK the bnitdinK for his home, such 
accident is rec<'ived while the pmplo.vee is nctinjc in the course of his einpio,vment 
nnd lio is entitled to compensation Iherpfor. It is imrt of the duties of the 
employee to Rct to (he Hoor on which he whr workiuK in the morning to beicin 
his work and to get down from it at night when the day's work is done, and, the 
method at doinR; so bpinf; legitimate, getting up and getting down, grow out of 
and arc incidental to his employment. 

Itt^miKN OF PlMMIK SCOPK OF TlIK EMPI.OTMKNT — WlMTL MlSCONlU'CT.— It IS 

incumbent upon the applicant for contEM-nsfllion lo iirovc by preponderance of 
evidence that the accident and injury grew out of and vas iucidenlal to his 
employment and happened while he was netini; within the line of hia duty. It In 
Incumbent, however, u]>on the person setting up the defen.'^e of wilful misconduct 
to estnblixh that faeC to a moral eerlainty. 
Scope of the Emmxjysiknt — Leaviso tiiiii.DiNO at NinuT bt Elevatoii— -Use of 
Ki.EVAT<m FORtill>l»:N. — Where an employee leaves the floor of a building under 
construction where he is working by an elevator at the close o( the day's work. 
and the use of rucIi elevator by workmen la forbidden, the question as lo whether 
the employee is acting in the 9co|)c of his employment in using such elevator 
must neceKsarity deiicnd upon whetlier such use constitutes wilful misconduct 



employers' liabiutv act decisions. 205 

WiLPi'L Mj SCO « DUCT— Use or Elevator Fowiiddes— Non-bnfobcembnt or 
Rule. — Where signs are put upon an elevator of "Danger, Keep Off" aod "Thie 
elevator for freight only. Aoy one riding on it does so at their own risk," and 
workmen are nsmpd personally that if tljey use such elpvalor tboy do so at their 
own risk, and are occHsionallj' ordered oFf Ihe elevator, but no one was ever lined 
or dischnrfied for nnin^ it, and the workmen use it frequently on tlie under- 
standing that they do so at their own risk, hclil, such facta are insufficient to 
estabJish wilful mixconduct by an employefe in the use o( the elevator. 

This is an aiiplication for a tkath benefit. The facts are stated in 
the opinion. An award was made in favor of the applicant, who is the 
widow of the deceased employee, for the support of herself and her 
minor children, in the snra of forty-fiye hundred dollars ($4,500.00). 
This sum was made payable at the rale of twenty-eight dollars and 
eighty-five cents ($28.8.5) per week for ()ne hundred fifty-six weeks and 
until wholly paid, 

E. S. Van Meter, attorney, for Applit^ant. 
E. L. Stockwcll, attorney, for Defendants. 

Axel R. Nelson was a carpenter employed by the Lindgren Company 
in the cou.struction of the Gtiffiths-MeKenzie building at the corner of 
Mariposa and J streets, Fresno. California. The building is class "A" 
and ten stories high. At the close of the day's work on the evening of 
the 11th of November, 1913, a few moments after the signal whistle 
blew to stop work for the day, Nelson stepped on to the elevator used in 
con.structing the building, to descend from the ninth Hoor to the ground 
floor in order to leave for his home. By a mistake in the signal given 
to the operator of the elevator by Nelson's companion, the elevator 
started upward instead of downward and Nelson either lurched for- 
ward or attcmptetl' to jump off, and his head struck a beam of the 
ceiling above. lie fell off the elevator to the edge of the floor below 
and from that floor to the bottom of the elevator shaft, nine stories, 
meeting with instant death. Ilis widow, Lidu E. Nelson, applied to 
tiefendants for the death benefit provided by law in such cases, payment 
whereof was resisted on the following gnxinds : 

1. That the accident which resulted in the death of Nelson did not 
arise out of Snd was n«jit in the course of his employment, and that, at 
the time of the accident, the deceased employee was not performing 
a service growing out of or incidental to his employment nor was he 
acting within the line of his duty.' 

2. That the accident which resulted in his death was caused by the 
wilful misconduct of said deceased employee. 

It is incumbent upon the applicant for a death benefit under a work- 
men's compensation act to establish to a moral certainty that the 
accident which resulted in death happened while the deeciised employee 
was performing a service growing out of, incidental to, and in the line 



Goo^^lc 



206 KMPLOYKRS' LIAIIIMTY ACT DECISIONS. 

of the duty uf 81k;1i employee. Uefpndants contend that, inasmuch 
Rs the quitting whistle had blown and deceased was, at the time of the 
accident, preparing to leave the biiilding in which he had been working, 
he can not be held to have been, at that instant, performing a service 
growing out of his eraplayment or acting within the line of his duty. 

Nelson 'a employment on this fateful day had been on the ninth floor 
of the building. It was part of his duty to get to that Hoor in the 
morning to begin his work and to gft down from it at night when the 
day's work was done, and, the method of doing so being legitimate. 
(jotting up and getting down grew out of and was incidental to his 
employment. In getting up to and down from the particular place 
of his employment, he was "performing service," growing out of his 
employment. 

Defendant further contends in sulistancc that even if deceased would 
have been in the line of his duty and course of his employment had 
he been injured while descending friun the ninth tloor to the first by 
the stairway, the fact tliat he was killed while attempting to leave by 
an elevator, which he was forbidden to nse, takes him outside the line 
of his duty and course of his employment. This is an issue of much 
gravity, and yet it can scarcely be contended that if the use of the 
elevator did not constitute misconduct such nse was inconsistent with 
the line of duty and eonrse of employment of such deceased employee. 
This brings us to the eou'-ideratiou of the second contention of the 
defendants herein, viz: that, in nndertaking to descend by the elevatoir 
Nelson was guilty of misconduct and that such misconduct was wilful. 

According to the testiniimy of Mr. A. P. Lindgren. head of the Lind- 
gren Company, one of the defendants herein, he instructed the super- 
intendent of the building not to allow men to ride on the elevator for 
two reason.s — one was that a pas.sengcr might get injured by something 
falling down the elevator shaft, and the other was that if such elevator 
was being used far carrying passengers it would interfere with the use 
of such elevator for carrying the materials retinired for construction, 

Mr. R. Ij. Bernard was the superintendent to whom the foregoing 
instructions were presumably given by ilr. Lindgren, and his testi- 
mony runs to the following effect: "We had two tin signs, one each side 
of the elevator; on the signs were the words, 'Danger, Keep Off.' 
There was also a pasteboard sign hearing the words, 'This elevator 
for freight only. Any one riding on it dws so at their own risk.' 
Xcarly all of the men on the huildiug were instructed in relation to 
the danger of riding on the elevator. When I saw anybody riding on 
the elevator I ordered them off. I have seen them get on. I have seen 
them passing the floors on the elevator. Our brick foreman and two 
hod carriers rode up arul down. I spoke to the foreman about it and he 



CnOO^^Ic 



EHPI-OYEns' LIABILITY ACT DECISIOKS, 207 

said, 'It is a long way up and down and I will take the risk myself,' 
then he continued to use the elevator that way. If there was a load 
to take up or anything long that needed support, a man would go up 
with it. 1 did not lay any one oflE far riding contrary to rules. I never 
fined any one for riding, never discharged any one. It was my under- 
'standing that when I told any one that he rode at his own risk it was 
at his own risk. I knew that men sometimes came down the elevator 
to go home. I always spoke to them, if I was in speaking distance. If 
I was not I did not go to them and say anything at that time. I 
thought with all the signs np it was sufHcient for an intelligent man 
to understand the dang«^r. I thought that the signs were sufficient to 
relieve our company to a certain extent. I thought that was about 
as far as I had authority to go or could go." 

There was abundant testimony to show that the elevator was fre- 
quently used by workmen about the building both to go up and to go 
down ; that the plumbers so used it and that na one was docked or dis- 
charged or otherwise disciplined for using it. A safety rule not dili- 
gently enforced is no rule, and to disregard siich a rule is not even 
misconduct, to say nothing of such mis<^ondnet being v/ilful. There was 
direct evidence from a workman that Nelson's foreman. Sir. Charles E. 
Grant, invited two workmen to ride down the elevator with him from 
the eighth iioor to the first, although Mr. Grant, when placed upon the 
witn^s stand, was unable to recall the incident to mind. 

Mr. Nelson, however, had not used the elevator at all previous to 
the day upon which he met his death, and on that day only a few- 
moments before the fatality. In company with his helper he had just 
brought up some materials on the elevator. The elevator was still there. 
His helper suggested that they ride down. Nelson's reply, as he 
stepped aboard, was to "give him three belLs," the signal to go slowly. 
A moment later Nelson lay crushed and dead at the foot of the shaft. 

As certain as it is incumbent u|>on the applicant for compensation to 
prove by preponderance of evidence that the accident and injury grew 
out of, and was incidental to, hi.s employment and happened while the 
injnred person was acting within the line of his duty, just so certain 
is it that he who sets up the defense of wilful misconduct mu.st establi.sh 
that fact to a moral certainty. In cases such as the one under c(m- 
sideration, where the accident results in death and the employee is 
unable to give his version of what happened and how and why it 
happened, the defense of wilful miscondnct should be required to be 
establishe<l beyond a reasonable doubt. Wc snbmit that, in this ease, 
that onus baa not been discharged. 

A. J. l'UJ,tBURY, 

Will J. French, 

IlARKl):i WEINSTOCK, . 

Commissioner^ ' ^ 



208 KMrl.OVRHS LIABILITY ACT nECISIONS. 

(Na 84— March 30, 1914.) 

(Chapter 399. I^wb ISll.) 

CHEAT WESTERN rOWRIl COMPANY (a cohpobation). Applicant, vs. 

SELEN'A MAYFIELD, Defendant. 

WlI.PUL MlBCONDUOT — DtSOBEniKNCE OF ISSTKUCTIONS WlIJ.'ULNESS.— Nl^li- 

(■eiicp is not a dcfpnse under the Einplnyere' Ijinbility Act — only wilful misron- . 
duct. 'I'o cons tit (lie the latter, disobedience of inxtruetions driven b; the 
employer must lie wilful. Where the evidence shows that a lineman had been 
inHtrueled to use rubber gloves in handling high voltage wires, and that in tcoine 
, to work on a certain afternoon the eloves were by mischance left in the wngon. 
which went on. and the lineman undertook to cut an electric feed wire without 
the rubl>er gloves, and lie could proiiably have done so without danger, the riay 
beiuK clear and the iiolc dry, were it not for a guy win> concealed by the foliagi' 
of a tri'e which touched the pole, and by reason of the presence of such concealed 
guy wire the lineman received a fatal shock, such linemau Is not gnilty of wilful 
miBconduct. 

In. — III. — Failure to Knkobcb Instkuctions. — A rule or order, the violation of 
which is to constitute luisconduct, must be diligently and insistently euforce<l by 
all reasonable means at the command of the employer. Where, as here, the 
instruction is given by way of 8ugK«Htion and it is shown that no lineman had 
ever bwn suspended or diselini^ed or tsraixt'ly reprimandwl tor failing to use 
such gloves, the evidence fails to show a diliceutly enforced rule, violation of 
which couslitutes wilful miscoudnct. 

In. — Ij>. — Wli.nif.NEJiM.— Wilful misconduct, as used in this act, is qnasi-criminal in 
character. As a punishment to the employer who is euiit.v of it. he is jiermitleil 
to be sued for the full amount of damages inflicted because of it and be is uot 
permitted to insure against that risk. As against a guilty employee, he and 
those deiiendent u|>on him must bear the evil consequences of hia misconduct 
without ciimpeusation of any sort. Hcing quasi-criminal, it will require strong 
evidence to establish it, particularly where the principal witness to the trans- 
BClion is dead. Any reusonable doubt will be icsolved in favor of the dependents. 

The facts are stated in the opinion. The only issue raised by the 
applicant was whether the death of the husband of the defendant wan 
caused by his wilful misconduct. An award was made in favor of the 
defendant, the widow of the deceased employee, in the sum of four 
thfiiLsaud fifty dollars ($4,OSO,00), this amount being payable at the 
rate of twenty-five dollars and ninety-six cont« ($25.96) per week for 
one hundred fift\ six wefKs The defendant was also awarded the 
reasttnable value of first aid medical treatment rendered to her husband 
at the time of the accident, not to exceed the sum of one hundred dol- 
lars (jjilOO.OO). Commissioner Harris Weinstock dissented from the 
iiiidings, award anti oinuion upon the grciund that the deceased was 
guilty of wilful miscoiidud 

E. W. Bcaxhlei/ Ouif ( KaH, and W. J. Spavlding, attorneys, 

for Apphtant 
W. A. Latta, attorney, for Defendant. 

James W. Mayfield was an eleetrie lineman in the employ of the 
(ireat Western Power Company at Sacramento, California. On the 
15th nf October, 1!)13, he, with a fellow lineman, William Streepy, was 



employers' liability act DEcisiosa. 209 

instructed by foreman P. C. Cleek to take down a transformer from a 
pole located in the alley between C and D streets at the end of Seventh 
street in said eity. 

Streepy ascended the pole first and went to the t«p of it, to the 
primary crossbars, and began to take the plugs out of the transformer 
to which were attached the feed wires from the high voltage wires 
adjacent thereto. The purpose of the transformer was to step-down the 
voltage carried by the high-tension wires from 2,300 volts to 220 volts. 

Mayfield followed Streepy up the pole, but took his position on the 
swondary crossTjars carrj-ing the low-voltage wires, some seven or seven 
and a half feet lower down the pole than the bars carrying the high- 
voltage wires. To steady himself, Mayfield probably grasped one of 
the iron or steel braces, which, in pairs, are fastened to the pole, one 
on each side, several feet below the secondary crcssbar and which run 
diagonally to such cro--sbar as a brace to support it, and then perpen- 
dicularly to the primary crossbars to support them. lie had previously, 
fastened his safety belt around one of these metal braces, as a protection 
against falling. 

Presently he called to his companion, "Bill, I am going to cut her." 
Then he raised his pliers to the feed wire above him and undertook to 
cut it loose from the high-voltage wire. The next instant he was hang- 
ing by his belt, head downward from the metal brace, and when, two 
or three minutes later, his body had been lowered to the ground, life 
was extinct. 

Selena Mayfield, the defendant herein, was the wife of James "W. 
Mayfield, deceased, and has two children, a son aged twelve years and 
a daughter aged six years, who are now dependent upon her for sup- 
port, and she and they were, at the time of the accident, wholly depend- 
ent upon said Mayfield for their supp()rt. Mrs. Mayfield made a 
demand upon the employing corporation for the death benefit provided 
by chapter 399 of the Laws of 1911, and, in turn, a compromise pro- 
posal was made to her which she rejected, whereupon the employing 
corporation instituted this proceeding to have the controversy deter- 
mined. Payment of such death benefit is resisted on the sole ground 
that Mayfield came to his death by reason of his own "wilful mis- 
conduct" in that he did not. while working upon high-voltage wires, 
wear rubber gloves furnished him by the employing company and 
lequired to be worn in such ca.ses. 

Evidence offered at two hearings clearly established the following 
e&sential facts: 

1. That, on August 8, 1912, said company issued to division super- 
intendents, to be brought to the attention of line foremen, in part, the 
following rule; "No employee ."ihall work on live wires of 500 volts to 



.Goo'^lc 



210 EMPLOYEBS' LIABILITY ACT DECISIONS. 

!),000 volts inclusive, without tlie use of rubber gloves provided by tlie 
eoinpauy. " 

2. That Mayfield's atteution had been called, not more than two 
hours previous to liis elect roeutioii, to a "request" or "requirement" 
on the part of the Great "Western Power Company that its men use 
rubber fjloves when warking on high potential wires. 

A. That, if he had worn rubber gloves in obedience to this require- 
mt^iit, he could have cut the feed wires without serious danger, not- 
withstanding the faet that they carrietl 2.30() volts. 

4. That the decfa-Sfd ciii|)loyee did not, on this occasion, wear rubber 
gbives or other protection against the eleetrie energy gtting over the 
wires upon which he was working, exeept the leather gloves usually 
worn by linemen. 

5. That sUch* safety nile or regulation sought to be imposed upon its 
linemen by the applicant corporation, was reasonable and necessary to 
the safety of such linemen. 

6. That it is a commonly accepted opinion on the part of experi- 
enced linemen that, when working on dry ptjes, in dry, clear weather, 
and where linemen are otherwise "clear" of danger of "grounding" 
through the bodj', they may work on wires carrying as high as 4,000 
volts with comparative safety, their danger being, not from the high 
voltage itself, but from some unseen and unanticipated connection 
through their bodies between sm-h wires and the ground. 

7. That the 15th day of October, 1918, when the accident took place, 
wa,s a dry, clear day, and that Mayfield undertook to cut the wire in 
question in the verj' middle of the day (lietwceu five and ten minutes 
past one o'eloi'k p. m.), and that the pole npon which Mayfield was work- 
ing was a dry, seasoned i)ole. 

8. That by some mischance the rubber gloves had not been taken 
from the auto tniek which acconipauied the repair men but that, at 
the time of tlie accident, such truck was about a mile away in charge 
of the foreman, who had taken other men to another job, and that it 
was us much the duty of the foreman to see to it that Mayfield and 
Streepy had their rubber gloves with them, as it was to see to it that 
they had other tools and appliances re(|uisite for their work. 

y. That, unknown to Mayfield and his fellow worker, Streepy, a 
guy calile ran from the ground np thniugh the branches of a tree to 
a telephone i>ole adjacent to the hit;li- tension pole upon which deceased 
and his associate were working; that such gny cable rested upon one 
(if the metal braces which supported the crossarms carrjing the power 
wires, and that this condition was highly dangerous, and that, but for 
this condition, Mayfield woidd probably have cut the top wires without 
injur^\' ; that the danger was not easily detected and that the dangerous 



D.gitizecbyG00glc 



EUPLOYBHS' LIABILITY ACT DECISIONS. 211 

condition was due to a want of reasonable eare on the part of em- 
ployees of the applicant power company at some time long previou,'* 
to the happening of thk aeeident. 

We think it clear froin the evidence that Mayfield knew it was 
the wish and expectation of the defendant corporation that he should 
wear gloves when working upon high-tension wires, and that, in neglect- 
ing to 90 use them in this instance, he was at least very neglectful of 
his duties, if not actually guilty of misconduct. Jlut was sueh miacon- 
diict "wilful" within the meaning of the act? The wilfulness of his 
tnisconduct is the erux of the issue in this ease. 

One of the most profound abuses that grew up under the old negli- 
gence law was that scores of sKfety rules were made and posted in offices 
of employing corporations whose only purpose was to avoid legal liability 
for injuries suffered. If the mere violation of such rules shall serve 
to constitute "wilful misconduct" under the Workmen's Compensation, 
Insurance and Safety Act, relatively few death benefits will be' pay- 
able to widows and orphans under that act, and one of its main pur- 
poses, namely, to prevent the impoverishment of families through the 
accidental killing of their breadwinners, will thus be frustrated. 

Therefore, this Commission must insist that a rule or order, the 
violation of which is to constitute misconduct, shall be a rule diligently 
and consistently enforced by all reasonable means at the command of 
the employer. This was not done in this case. The rule was first 
issued on August B, 1912, but there was no evidence to show that it 
had been consistently and persistently enforced. Accidents having 
occurred, the attention of superintendents and other subordinates was 
recalled to it in the concluding days of yeptember, 1913, more than 
a year later, but it had not been handed or .sent to the linemen, who 
were mcst vitally concerned in its enforcement. Tliere is no evidence 
tliat Maj-field's attention had been called to it as an infle.\ible rule 
governing his employment. Foreman Cieek had, two hours before the 
accident, "told Ihr mi:ii" that the company had "requested" them to 
wear rubber gloves when working on high potential wires and had 
threatened them with di.scharge if they did not, hut it is not certain that 
Mayfield, who was working up on a pole at the time, heard what he 
said, although it is reasonable to presume that he did. 

Pnrthermore, although it was an open secret that linemen did not 
at all times wear rubber gloves while working upon high-tension wires, 
other conditions being favorable, it was fn-ely admitted by applicant's 
executive otficers that no lineman had ever been suspended or dis- 
charged, or scarcely reprimanded, for failing to use such gloves. On 
two o<.'casians {on the Sunday previous at Oak Park station and in the 
forenoon of the day of the accident) gloves had been given to Mayfield 

.nOt>^lc 



212 employers' liability act decisions. 

aod others to be used, and they had been used. Doubtless the liDemen 
knew of the expectation of the applicant company that rubber gloves 
should be used on voltage above 500, and that they were to be had, 
if needed, but tliat does not constitute the requirement of a "rule," 
the failure to observe which would be wilful misconduct. 

Superintendent T. J. Dillon testified at the coroner's inquest that, 
in the event of the infraction of this rule, it would have been hia duty 
to dischai^e the offending lineman and also the foreman for not seeing 
to it that the linemen obeyed the rule. In so testifying, he outlined 
the correct disciplinary policy to be pursued in enforcing a safety rule. 
The foreman is the essential factor in securing compliance with safety 
rules. It was foreman Week's duty, when he had received his instruc- 
tions, at once specificaHy and unequivocally to communicate his instruc- 
tions to hi.i men and see to it that those instructions were obeyed or 
that refractory and disobedient linemen were sent to the office for 
their pay. Such an enforcement of the rule in question would have 
made it a rule and not a mere manifestation of a desire or wish on the 
part of the employing corporation. Foreman Cleek testified that, to 
his knowledge, none of the electricians had worked without gloves since 
October 15, 1913 (the date of Mayfield's death). This testimony means 
that men had worked without gloves before October 15, 1913. Both 
William Streepy and John Gubel testified that, at times, men wctrked 
on high-voltage wires without the protection of gloves. 

But, admitting for the sake of ar^ment, that the violation of this 
alleged rule amounted to misconduct, was that misconduct "wilful"! 

In order to be "wilful," raisconduet must be obstinate, stubborn, 
refractory, premeditated, "not to be persuaded by counsel, advice, 
commands or instruction." It must be intentional and by design, and 
not through inadvertence and thoughtlessness. It must be "the inten- 
tional and deliberate doing of a wrongful act," "with a bad purpose," 
hut not with malice, as in criminal cases. 

Fortunately, we have in the Workmen's Compensation, Insurance 
and Safety Act a very clear and authoritative definition of what con- 
stitutes wilful misconduct. All states and countries having compensa- 
tion laws recognize that there arc occasional employerfs who are so 
regardless of the safety of their employees that they do not deserve the 
protection of a limited liability law, and the California act permits the 
injured employee to sue for unlimited damages when he has been 
injured through the employer's "wilful misconduct." Such conduct 
is specifically defined to be "a wilful disregard of the life, limb or 
bodily safety of his employce-s." By way of giving employers a square 
deal and an equal standing before the act with their employees, the 
statulc, in turn, provides that "wilful misconduct" on the part of the 



D.gitizecbyG00glc 



employers' liability actt decisions. 213 

employee, resulting in his injiirj', shall he a defense against any pro- 
eeeding brought to secure compensation for such injury, but, again, 
such misconduct must manifest "a wilful disregard for the employee's 
own life and limb or bodily safety." Did Mayfield manifest such a 
disregard t 

We think not. or at least that the evidence does not conclusively 
prove such disregard. This doubt is admitted by the attorney for the 
Great Western Power Company, who testified on January 20, 1914: 
"I felt we had a fair chance of winning this case if we submitted it to 
the Industrial Accident Commission." Mayfield only attempted to do 
what he and other linemen had done many times without harm. He 
"took a chance," which, to be sure, he ought not to have taken, but 
there was no evidence to show that, in so doing, he manifested a "wilful 
disregard" for his own safety. 

"Wilful misconduct," as used in this act, is quasi-criminal in charac- 
ter. As a punishment to the employer who is guilty of it, he is per- 
mitted to be sued for the full amount of damages inflicted because of 
it, and he is not permitted to insure against that risk any more than he 
would be to insure against the risk of being convicted of arson or 
burglary. As against the guilty employee, he and those dependent 
upon him, must bear the evil consequences of his misconduct without 
compensation of any sort. 

Consequently, in establishing the- charge of wiifnl misconduct against 
either employer or employee, something more than a mere prei)onder- 
ance of evidence should be required, something akin to evidence beyond 
a reasonable doubt. Especially should this be true in such a case as 
this one where the lips of the oiTtender are sealed by death. If Jlayficld 
were living it would he possible for the Commi-ssion, by careful ques- 
tioning, to get at what was in his mind, and, if failing to .justify him- 
self when opportunity was afforded, he could be condemned without 
misgiving. This can not be done, and his dependents are entitled to 
the benefit of any reasonable doubt regarding his wilfulness that may 
exist in the mind^ of the Commissioners. 

Since the infamous penalty of attainder was abolished, death has 
been the extreme penalty for tiie commission of any offense, however 
great. This penalty for his fault Mayfield has paid. Shall there be 
added to it, unless .judicially unavoidable, the impoverishment of his 
wife and children? All the testimony as to his character was to the 
effect that he was a prudent, careful, obedient and cxperitnced work- 
man, never having been "called down" for an.v cause, and previous 
good character has always l)ecn pleadable to the advantage of one 
chat^d with a serious offense. 



D.gitizecbyG00glc 



214 EMPLOVUns' LIABri-ITY ACT DECISIONS, 

If it be objected that, under this line of reasonine, it will be diftjeiilt 
ever to prove the "wilfulness" of misconduct where the death of the 
injured party results from the accident, such may be admitted, but it is 
the policy of every compensation law to make its benefits as inclusive 
as possible to the end that society may be prote<tcd from the evil eon- 
seqnenees of pauperism resulting from industrial accidents. 

Is it contended that the exacting requirements as to evidence in death 
eases impases a hardship upon employers? The answer is that the pay- 
ment of compensation is not primarily an issiie between employer and 
employee, bnt between the state and its industries and that the industry, 
and not the emplo,ver, is to hear the cost until it can lie passed on to 
the consinner through some form of insurance — self- insurance, if no 
other. 

Is there fear that, unless compensation ean be denied in such eases, 
employers will not be able to enforce safety rules and regulations? 
Discipline is not .so dependent upon the severity of punishments meted 
out as upon the certainty of some punishment being visited upon those 
who disobey, and if emplo.vers understand that only in aggravated eases 
will the defense of wilful miseondnct prevail, they will renew their 
efforts to secure obedience by bringing the existence of such rules 
specifically and not infrequently to the attention of their employees, and 
insisting upon observance through reprimand, suspension from duty, or 
discharge, and especially thnuigh holding their foremen to a strict 
accountability for the safety of Iheir men. Moreover, if fear of death 
will not dissuade an employee from taking nnwise chances, fear of 
losing his compen.sation will hardly prove an added deterrent. 

During the calendar year lillU there were seven hundred fifty-two 
(7r)2) deaths through industrial accident in this 8tafe, regarding which 
authentic histories were obtained, and of these fully one half left 
dependents. Under a lax interpretation of what constitutes wilfulness 
as related to misconduct as a defense, the greater part of the.se depend- 
ents would become objects of public or private charity. It can not 
have been the intent of the Icgislatun- that such a condition should 
come to pass. Therefore, this decision is not rendered with regard 
solely to the parties to this proceeding, but in view of a general policy 
needful for making the statute broadly and not narrowly effective for 
the main purposes had in view when it whs enacted. (Jreat Britain 
found it nece,s.sary to limit (he defense of wilful misconduit to eases in 
which the injuries do not result in death or serious, permanent dis- 
ability, and other static and cmuitries have limiteil the defen-se lo self- 
inflicted (suicidal) injuries, hut, with a liberal inlerp relation of our 
wilful niisconduct provision as it stands, it will not l>e nece-ssary for 



D.gitizecbyG00glc 



KMVI.OYKHS' LIABIMTY Arr DKCISIONS. 215 

our legislature to go to such extreme lengths in order to safctriiard the 
public welfare. There will still be nfrgravated cases of misconduct in 
which the witfnlness can be clearly established and eompensation right- 
fully denied, the more tertainly when the injured person survives his 
injury and can be made to bear the consequences of his own wrong- 
ful act. 

A. J. PrU.SBURY, 

Wn,i. J. French. 

Commissioners. 

Harris Wbinstock, Commissioner, dissenting: 

I dissent. The defense in this caiLse was that the deceased employee 
was chargeable with "wilful misconduct." If he was. there can be no 
recovery. See section 12 (3) of the Workmen's Compensation, Insur- 
iinee and Safety Act. If he was not, the judgment of the majority 
of the Commission, awarding full compensation, is correct. 

Under all the authorities the question raised here is a question of 
fact, not always easy of solution, and one upon which men may reason- 
ably differ. "Wilful inisconduet" is a matter of affirmative defense. 
The burden of proving it by a preponderance of the evidence is upon 
the party Setting it up as a defen.se. I am unwilling to subscribe to 
the proposition that the defcn.se must be proved beyond a reasonable 
doubt. I believe that such standard or degree of proof should be 
required only in criminal cases where questions nf personal liberty are 
involved and strong presumptions of innocence are indulged. The fact 
is more difficult of proof where death has resulted, and it strikes me 
as unsound to require, in a civil ease, the highest degree of proof known 
to the law in admittedly the hardest case to prove. 

The evidence to prove "wilful misconduct" as a fact in this ease 
is satisfactory to my mind. The employer had issued and postal rules 
expressly enjoining the use of rubber gloves by linemen when working 
with "hot" wires, and had furnished such rubber glovts as a part of 
the equipment of linemen. The foremen were familiar with the ride. 
The foreman in immediate charge of the work, in which the deceased 
lost his life, was familiar with the rule. He had instructed the use of 
the gloves on this sort of work not more than two hours before the 
deceased lost his life by reason of not using them. It was the duty 
of the foreman to give this order. It was tlie duty of the deceased to 
obey it. It was a deliberate breai-h of his duty to disobey it. The 
rule was made and the equipment wa.s supplied to safeguard workmen 
against unforeseen and hidden dangers such as caus<'d the death of 
tile employee here. Other precautioas could he taken, and. under the 
evidence, would be taken against obvious dangers. 



D.gitizecbyG00glc 



216 employers' liability act decisions. 

The deceased vfas & lineman of seasoned experience aJid, ordinarily, 
e eareful and tractable wofltman. The risks of his employment were 
known to him. He was not only recently advised of, but was perfectly 
familiar with, the necessity of taking the prescribed precaution by using 
the gloves in the work in which he lost his life. To my mind his mis- 
conduct manifested a wanton indifference and a wilful disregard of all 
caution and precaution. - 

It is my opinion that the employer in this ease is to be credited with 
the exercise of reasonable diligence in enforcing its rule and in pro- 
viding ei^uipment for its observance. We should require that, and we 
tlo require it. However, wc should require the employee to cooperate 
if we are to get the best results. As the employer owes a duty to his 
employee, the public and himself, so does the employee owe it, in equal 
measure, to his employer, the public and himself. 

In reaching my eonciuaion, and in discussing the question of fact 
involved here, I have not kept out of view the fatal result of the accident, 
nor the distress of the surviving dependents of the deceased workman. 
However, serious and regrettable eimsequences can not determine the 
question. It is our duty to pass upon the rights of the parties as we 
see them, guided only by the law and the evidence. 

Harris "Weinstock, 
Commissioner. 

NOTB. — Subsequent to tlie reniiltlon o( the Bndlnga and award In thla proceeding 
the applionnl petitioneil for an iimendmcTit to the flncainnii of fact, requesting th.it 
iipeclal nndlngs be rendered setting out In detail the olrcumBtancea attending the 
employment and death of the dccfiisi'd employee. This petition was denied by the 
Commldslon on April 22, 19H. Thereatlcr the applicant petlUoned (or a correollon 
In the traneorlpt of testimony iind for permission to introduce further testimony and 
for a correction of the date of the award, which order Was denied for the reason 
that such chanees were not material. At the same time the appUcant applied for 
a review ul the decision of the Oommisalon by Ihc courts oC this state, which Was 
granted, and th<^ record In the case tninsmltted to the dork of the Superior Court 
o( Sacramento t'ounty. Suhsfquently the applicant petitioned for a rehearing In the 
tnrm prescribed by tlie Uoynton Workmen's Compensation. Insurance and Safety 
Act. chapter 178. Laws of 1913, which applic.itlon was denied by the Commission on 
ApHI 30, IHH. upon the ground tlial proce<'dln8S under the Roseberry Act were sUll 
governed by the riiles contained In said act. and not by the Boynton Act, which 
otherwise superfieded It. An appeal was taken In the Supreme Court of tlie State of 
California upon (he ground ol alleged errors In the rendition of the decision In this 
case and iilso upon llie iinesllon of the constttutlonaiily of both Uie Employers' 
Uablllty Att, chapter SS9, Laws of 1911, and of the Workmen's Competisatlon, 
Insurance and Safety Act, clinptor 176, Laws of IKl.t. This appeal has been sub- 
mitted to the Supi'cme Court and Is now under advisement by It, 



;,Goo'^le 



EUPLOTEBB LIABILITY ACT DECISI0!4S. 

(No. 97— April 2, 1914.) 

(Chapter 399, Laws 1911.) 



C. W. Slack and Ckauncey S. Goodrich, attorneys, for Applicant, 
CuUen, Lee & Mathews, attorneys, for pefendant. 
This is an application by the employer of Lester Shaw, deceased, to 
have determined who are the dependents, if any, of the deceased em- 
ployee, and the degrees of their dependency. Lester Shaw was killed 
on December 28, 1913, while working in the employment of the applicant 
as a laborer, by being caught in a belt and hurled against the frame- 
work supporting the machinery. After the return of intem^atoriea 
sent to the nearest known relatives, an award was made in favor of 
the mother and father of deceased, shown to be partially dependent 
upon him for support, in the sum of nine hundred dollars ($900.00) 
less the sum of five hundred sixty-two dollars ($562.00) previously 
advanced to said parents and paid out for funeral expenses, leaving a 
balance due to tlie beneficiaries of three hundred thirty-eight dollars 
($338.00). 

H. L. White, 
Secretary. 



(No. 87— April 3, 19U.) 

(Chapter S99. Laws 191 1.) 
.1. V. CIIAMltKItS. Applir, 

This is an application for a total disability indemnity. The facta 
are stated in the opinion. An award was made to the applicant of five 
hundred eighty-seven dollars and sixty-seven cents ($587.67), this being 
the amount of the weekly disability payments dnc up to the date of 
the award, loss the sum of two hundred fifty-three dollars and eighty- 
three cents ($253.83) already paid upon this account. The applicant 
waa further awarded the sum of ten dollars and thirty-one cents 
($10.31) per week for each and every week after the date of the award, 
until the total payment on account of his injnr>' shall e(iual the sum 
of two thousand four hundred seventy-five dollars ($2,475.00), this 
being three times the applicant's average annual earnintPi. 
The applicant was not represented. 
II. H. Ashley, attorney, for Defendant. 

The applicant, J. F. Chambers, was working near Richmond, Cali- 
fornia, for the defendant corporation, and, while on the ground under 



.-,00' 



,glc 



218 EMI'LOYKRS' I.IAHU.ITY ACT DUCIKIONS. 

n scaffold, an iron casting became displaced and fell, striking the 
iipplicant on the head and crushing his sknll. It was neeessary to 
perform a swrgioal operation and remove a part of the bone of the 
siknli. He gradually recovered, and on the 7th of May, 1913, was 
able to travel alone to his home in the east, though he had not entirely 
recovered from his injury. It appears, however, from the testimony 
of the medical experts that the injury to the brain has caused a 
paralysis of the left arm whereby that arm has become practically 
useless. According to medical testimony, the injury to the brain has 
also affected his mental condition so that at times he is somewhat 
mentally irresponsible and is also totally incapacitated for work. 

The applicant, therefore, is entitled to the full compensation for 
total disability. 

A. J. PlUfiBURV, 

Will J. French, 

Commissioners. 



(No. 93— April 22, 1914.) 

(Chapter 3S9, Laws 1911.) 

TIr0^fAS FRANCIS HAYES, Applicant, vb. STAXDAH1> OIL COMPANY (a 

CORIKIRATIONK Defendant. 

Proximate Cai'mb — Tnsanitt. — Wh*rp thp evidence shows that the applicant whs 
injured by accident caiisiDK the loss of a flngpr, that he became menially 
iiDbalaaced three days aFter the accident, with loss of voice and Hymploms 
similar lo mania or hysteria, that he bad been unbalanced fire yeara before, 
lastins for a period of ten mouths. I)tit that he was at the time of the accideiit 
normal and ph.vBieally atrong and healthy, htld. tbat applicant's insanity was 
projcimafoly cnuied by tbe accidental injury. 

The facts are stated in the opinion. An award was made in favor of 
the mother of the applicant, to be used for his support, in the snm of 
sixty-six dollars and forty cents (."Sfie.W), for the unpaid balance of 
applicant's medical expenses; the sum of eight hundred ninety-seven 
dollars ($897.0(1). as disability conipen.sation for fifty-two weeks up to 
April 12, 1914; and the fnrther sum of seventeen dollars and twenty- 
five cents ($17.2i») per wwk after the said April 12 until tbe termina- 
tion of the disability or further order of the Commission, provided that 
the total sum paid as a disability benefit should not e.\ceed four thou- 
sand one hundred forty dollars (*4,140.0()). 

Mrs. iS'irn/i Unties, mother of (be applicant, for Applicant. 
E. B. Davis, attorney, for Defendant. 

The applicant is a young man of twenty-nine years of age. While 
working for the Standard Oil C'onipany near Taft, ('alifomia. on 
April 4, 1913, with the crew enfjaged in pulling csising out of an oil 



Google 



KMI'LOYBRS' LIAIIILITY A(ri' DKCISIONS. 219 

well, he suffered the loss of the first finger of his right hand between 
the first and se<'ond joints by reason of beins struck by a pair of tonps 
attached to a six inch casing, which slipped and dropped while being 
unscrewed. The finfrer was completely -severed and left inside the 
glove which the employee was wearing. Prompt surgical attention was 
given and an aniBsthetic was net^cMjarily used in the operation. April -i, 
1913, fell on Friday. The testimony shows that his mind was unbal- 
anced on the following Monday. Dr. P. J. Ciineo was called to attend 
the patient on Monday, The diH-tor testifies that the patient was 
"practically insane at that time, hut wonld have lucid intervals • • • 
he was not dangerous but irrational." Dr. T. M. McNamara, who 
treated the patient on the 11th day of April, testifies as follows: "He 
had a condition akin to mania. They are noisy and difficult to handle. 
I assumed that the trouble was brought on by, the injiir\'. I am a 
surgeon. I have practiced about nine years. I have not known of 
others who suffered mental derangement from such a simple amputa- 
tion. • • • I regarded the injury as the occasion and not the cause 
of the mental trouble." 

All the medical testimony goes to show that the patient was in a 
healthy physical condition and that he showed no trace of any chronic 
ailment or venereal disea.se. 

The historj' of the patient shows that his habits were good: that he 
had not suffered from any serious sickness in recent years, and that he 
had completely recovered from sickness suffered by him in childhood. 
The testimony of his mother and brother showed that the applicant had 
suffered a mental derangement some five years prior to the time of his 
injury, which !a.sted nine or ten months and which was caiLsed by over- 
work. He had recovered his normal mental condition long before the 
accident, so far as can be ascertained, and was an efficient and com- 
petent workman. The mo.st that can be said is that there was a pre- 
disposition to hysteria and niental derangement in the applicant. 

In the effort to arrive at an accurate decision in this case the C'lni- 
miasion has had occasion to consult medical authoriti<'s on insanity, 
hysteria and other mental derangements causi'd or precipitated by 
injury. While there doe.s not seem to be a consensus of opinion amonj: 
these authorities, we do find the weight of expert opinion .supporting 
an award in this ease. Ktatenients by alienists, hasinl on long experience 
and observation, are iLsually qualified by n'fcrringJo prcdisposilion 
and defects in the individual make-up. One of these statements before 
the Conimissiim in this ca.sc is that of F. W. Ilalch, M.l>.. genera! 
superintendent California State ("onimis.sioii in Iiunacy. in which the 
following occurs: 

"I do not believe the -slight accident and consequent aniputalion 
would bring about insanity under ordinary circumstances. Where 



220 EMPLOYERS LIABILITY ACT DECISIONS. 

slight accidents are followed by insanity it is usually due to some 
defect in the individual make-up. The emotional disturbance at 
the time of the accident and the following anesthesia would at 
times have the effect of bringing about an hysterical condition with 
pronounced mental symptoms in a predisposed individual. I 
think the loss of voice is of an hysterical nature. 

"While the accident and operation might he considered as the 
probable exciting causes. I do not think they should he looked upon 
as entirely responsible." 

The applicant was a strong, healthy man. lie was not apparently sub- 
normal in any respect. He was a capable, efficient workman, earning 
letter than average wages. Ilis mental derangement occurred imme- 
diately after the accident and the neccssarj' surgical treatment given 
to him as a result of the accident, and it has seemed clear to the Com- 
mission that under these circumstances the di.sability was proximately 
caused by the accidental injury to the applicant. This decision finds 
abundant support in a long line of decisions in the English courts. 

In the case of Mitchell vs. Grant & AUlcraft. 7 W. C. C. 1:13, an acci- 
dent caused injury to the eye, which resulted in a total blindness, which 
produced a condition of the mind upon which softening of the brain 
. supervened, causing death, and it was held that the death resulted from 
the injury. The accident in the case occurred on Februarj' 7, 1903, 
and the death did not occur until November, 1904. 

In the case of Mallony vs. Cai/ser Irvine Co.. 45 S. L. R. 351, the same 
rule was followed, the facts being that a one-eyed man lost his remain- 
ing eye by accident, insanity ensued and he committed suicide. Com- 
pensation was awarded. 

In the case of Shirt vs. Calico Pri'tilers Axs'ii, Ltd.. 2 K. D. 51, it wa.-* 
held that whf'rc the death of a workman ensued from the administration 
of an antpsthetic, administered for the purpose of an operation conse- 
quent on an accident, the test of the question — whether death was the 
result of the accident so as to entitle his dependents to compeasation — 
is whether, in the ciren instances, the operation was the i-easonable step 
to be taken to obviate the consequeiices of the accident. . 

In the ease of Dunham vs. Claire, 2 K. B. 292, the following rule was 
announced : 

"The question — whether death results from the injury, resolves 
itself into an inquiry into the chain of causation. If the chain of 
causation is broken by a iwvus actus intcrvenievs, so that the old 
cause goes and a new one is suljstituted for it, t, c, a new act which 
giv&s a fresh origin to the after consequences • • • the only 
question to be considered is — did the injury or incapacity in fact 
result from the accident itself J" 



D.gitizecbyG00glc 



employers' ltabilitt act decisions. 221 

The definition of the word "proximate" in its legal sense, briefly, is 
"closeness of casual connection," Bouv. Law Diet., and the accepted 
definition of "proximate cause" is as follows: 

"That which, in a natural and continuous sequence, unbroken 
by any new cause, produces an event, and without which the event 
would not have occurred. The proximate cause is that which is 
most proximate in the order of responsible causation. That which 
stands next in causation to the effect, not necessarily in time and 
space, but in causal relation," 

In the ea.se before the Commission we sec a healthy and apparently 
normal workman suddenly suffer an accidental injury which takiw him 
from the ranks of producing laborers and renders him helpless, 
incapable, and a charge upon his family. The chain of events from 
the instant he was injured to the time he became mentally deranged is 
unbroken. We can not see and we can not say that any new act inter- 
vened originating the applicant's mental condition. Thfe testimony and 
the investigations we have made convince us to the contrary. Should 
it appear in the future that the applicant's malady yields either par- 
tially or wholly to treatment, the Commission reser\'es the right to 
modify its award herein, 

A. J. P1LI.SBURY, 
Wu,L J. French, 

Commissioners. 



(No. 102— April 29, 1914.) 

(Chapter 399, Laws 1911.) 

FRED W. BBRTSCII. Applicant, vs. E. W. ELLIOTT and PACIFIC COAST 

CASUALTY COMPANY, Defendants. 

DnBATioN OF Disability— In J I) ar BeuEPiABi-E by Ope batiok.— Where a condition 

o( temporary disability is shown, which may continue for some time but can be 
greatly shortened by a surgical operation, and audi operation involvea relatively 
small risk to the patient, a total temporary disability award will be made, pay- 
able weekly until the lenninatJon of the disability, but with a provision that all 
payments shall cease if the employer shall offer to the employee tree of cost such 
operatioQ nud the latter shall refuse to undergo it. 

Fred W. Bertscli, in propria inrsona, for Applicant. 

W. C. Xewviaii. attorney, for Defendant, Pacific Coast Ca,sualty 

Company. 

The applicant in this ca,se, Fred W. Bert-sch. was injured by a falling 

timber on November 7, 19i:i, while working for the defendant. E. W. 

Elliott. The accident resulted in a bruised face, shoulder, ribs and 

hips, all of which yielded to treatment except the shoulder, the latter 

developing a sub-deltoid bursitis. The only i.ssiie raised in the pro- 



Goo'^ Ic 



222 EMPI-OTEBS' LrABtl.ITT ACT DECISIONS. 

feeding was as to the extent and duration of the disHbility. An award 
was made in favor of the applit^'ant in the sum of one hundred thirty- 
one di>l]ars and eighteen cents {$1^1.18) for a total temporary dis- 
ahility of fourteen weeks, less the sum of one hundred thirty dollars 
and thirty-five cents ($130.35) previously paid to appiieant on this 
account. The applicant was further awarded the sum of three dollars 
and seventy-five cents ($3.75) per week after the expiration of the said 
fourteen weeks' disability, as a partial temporary di.sahility indemnity. 
to he [iiiid until the termination of the disability or further order of 
the Commission. It was ])nrvided, however, that if the applicwnt should 
he offered an operation t<i remove the suh-deltoid bnr.sitis and should 
refuse to undcrfTo it. all disability payments should (-case from and 
after such refusal. 

II. L. White, 
Secretary. 



. (No. 100— May 4, 1!)14.) 

(Chapter 399, Laws 1311.) 

II. FOLKMAN. AppH'-ant. vs. MAMMOTH COrPKIt MINIXfi COMPANY OF 

MAINE (A COBPOKATION). DrfcHdant. 

Braynard iC' Kimhall, attorneys, for Applicant. 
Fraiit:is Carr, for Defendant. 
The applicant in this ea.se, II. Folkmaii, was injured on November 18. 
1913. while working in the course of his employment, iiy l>eing cut on 
the right eyeball by a piece of flying rock. The injury resulted in the 
complete de.struetion of the right eye. An award was made iu favor 
of the apiilicaiit in the sum of thirty-seven dollars and forty-nine cents 
($37.49), this being the sum of the weekly total temporary disability 
payments due up to December 28, 1913. The applicant was further 
awarded the sum of two dollars and fifty-one cents ($2.51) per week for 
77fiJ consecutive weeks as partiiil permanent disability eonijiensation. 

II. L, White, 
Secretary. 



D.gitizecbyG00glc 



EMPLOYERS T.IAHILITY ACT DECISroNS. 22-1 

(No. 99— May li. 1!)14.) 

(Chapter 3S9, L^ws 1911.) 
V. KUNGENBEBG. Applimat. vs. CAI.IFOBNIA STEVEDORE AND BAL- 
LAST COMPAXY AND FIDELITY AND DEPOSIT COMPANY OF MARY- 
LAND. DefendanU. 

J. Early Craig, attorney, for Ap|)Iicant. 
W. W. Derr, attorney, fur Defendants. 
This IS an applieation for a total diNahility indemnify. The appli- 
eant, V. Ktinjrenherg, whn injured on August 2:i. lfli;i, while in the 
Hinployinent of defendant CHlifornia Stevedore and Ballast Company, 
by the falling of a keg through a hatehway u|wni him. The applieant 
was struck on the head and shonlder, breakinf,' the shoiikler bone and 
fracturing the skull in two places. The only issue raised in this pro- 
ceeding is as to the duration of the disability. The applicant was 
examined on April 29, 1914, by three physiciaiLs, one selected by each 
of the parties and one liy the Commission, a majority of whom reported 
that the disability was total and would probably remain so through life 
although susceptible of considerable improvement by operation. An 
award was accordingly made in favor of the applicant of three times 
his average annual earning.s, amounting to three thousand .seven hun- 
dred forty-four dollars (!|!3,7-t4.(IO}. payable in installments of fifteen 
dollars and sixty cents ($15.60) per week until the whole amount be 
paid or until the further order of the Commission. The defendants 
having already paid more than the legal maximum for medical treat- 
ment rendered to the applicant, no award was made therefor. 

II. L. White, 
Secretary. 



(No. 10:{— Slay o, 1914.) 

(Chapter 399. Laws 1911.) 

W. V. HUNDLEY, .ipplimiif. vs. J. BILLKR, asd UNITED STATES FIDELITY 

AND GUARANTY COMPANY (a cohporatio.n). D.frnda«l». 

Wbiojit of Evidence — [:\.>H7rroRTEi> Tektimosy of Applicant — IIghma. — Whero 
Ihe only evidence! to show that tin; appliciiiu's hernia was cauiwd by an accident 
ot-currinc in llie cotirse of his emiiloynipnt is the unsnpported testimony of the 
applicant bimself. and no n>[>ort is made of the accident or endeavor to obtain 
coDipensation for nearly a year afterwards, such evidence, [hungh it may be 
entirely true, ix not suQicient to warrant a finding in favor of the apiilJcnnt. 
The unsupported testimony of an apptloant will seldom, if ever, warrant a hnd- 
ing that a hernia was caused by an accident arising nut of and liapiiening in llie 
course of his employment. 



D.oiiiz.owGoogle 



224 EMPLOYEBS' LTABII.ITT ACT DECISIONS. 

The facta arc stated in the opinion. Compensation was deni<id and 
the defendants discharged fiom all liability, 

W. V. Hundley, in propria perxona. for Applicant. 
J. Biller, in propria persona, for Defendant. 

T. A. Seaddf.n, for Defendant, United States Fidelity and (luarant.v 
Company. 

The applieant herein is by oeeupation a earpenter, and, on or about 
the 7th of May. li)i:), he was employed by J. Biller. a eontrWtor. at 
Winehaven in thi.s state. It was a part of his duty to handle heavy 
timbers, and on the 1st of April, 1!I14. nearly eleven montlui after his 
alleged injury, he complained that, on the 7th of May last, he suffered 
a hernia as a result of lifting such timbers. lie testified that he worked 
on without complaining of his trouble, or mentioning the fact of his 
injury to any of his fellow workmen, until Augiust 30, 1913, when he 
was laid off. lie did not report the fait of injury to his foreman until 
about the time that he filed his application for the adjustment of his 
claim, April 1, 1914, and he does not appear to have reported his injury 
to his employer at all. On the 16th of September, 1913, he submitted 
to an operation and did not resume work until about the time he filed 
his application in this case. While his statements may all be true 
exactly as stated, they are wholly unsupported by any corroborative 
testimony whatever, and the unsupported evidence of an applicant will 
seldom, if ever, warrant a finding that a hernia was caused by accident 
arising out of and happeninfr in the course of one's employment. 

It would be unreasonable to make such a' finding upon such uncor- 
roborated testimony in a efi.se. such as this one, where no claim of injury 
had been made until nearly eleven months after the date when the acci- 
dent was alleged to have taken place. 

A. J. PlLLSBtlKY, 

Wn.L -T. Fkench, 

Commissionf.rs. 



(No. 108— May 7, 1914.) 

(Chaplcr 399, Laws 1911.) 

WILLIAM K. BOGART, AppHcant. vs. STANDAUD OIL COMPANY (a 

GOBFUBATION), Defendant. 

Francit C. Huehner, attorney, for Applieant. 
E. B. Davis, attorne.i', for Defendant, 
The applicant in this case, William K. Bo»art, was injured on Novem- 
ber 7, 1913. while working as a riveter in the employment of the 
defendant. At the time of the accident Bogart was cutting rivet holes 



EMPT-OYEBs' LIAIilLITt ACT DECISIONS. 22o 

and a slug, from a hole being cut, hit him in the eye, causing a perma- 
nent and practically total loss of sight thereof. The only issues raised 
v.ere as to the extent of the disability and the wages earned by the 
applicant. An award was made on the basis of the entire loss of sight 
of the right eye in the sum of ninety-five dollars and sixty-eight cents 
($95.68) for total temporary disability for eight and five sevenths 
weeks up to January 15, 1914. The applicant was further awarded 
as a partial permanent disability indemnity the suin of one dollar and 
sixty-eight cents {$1.68) per week for seven hundred seventy-one con- 
secutive weeks commencing with January l.'i, 1914. The sum of such 
weekly payments amounts to twelve hundred niiiety-five dollars and 
twenty-eight ccnt^ ($1,295.28). The defendant wa.s given the option, 
however, of commuting the weekly payments awarded to a lump sum, 
discounting them at the legal rate of 6 per cent, making the present 
worth of the said partial permanent disability payments the sum of 
nine hundred sixty-one dollars (!f!)61.(K)). 

II. L. White, 
Scr.retari/. 



(No. C8— May 8, 1914.) 
(Chapter 399, I.aws 1911.) 



James A. Bacigalupi, attorney, for Applicants. 
Lloyd M. Sobbiiis, attorney, for Defendant. 

This is an application for a death benefit. The applicants are the 
father and mother of Ambrogio Vieari, deceased, and live in Italy, 
being represented in this proceeding through the Italian consulate. 
The deceased was employed by the Standard Lumber Company a,s a 
laborer and was killed on June 28, ISlli, by a fall from a scaffolding 
upon which he was working." The only controversy was as to the degree 
of partial dependency, if any, of the applicants. After the receipt of 
depositions from Italy an award was made on Slay 8, 1914, in favor of 
the applicants in the sum of five hundred six dollars and twenty-five 
cents ($506.25). to be divided eipmlly between them, the evidence show- 
ing that the applicants were partially dependent upon the deceased 
to the extent of 2-1 per cent of his average annual earnings. 

On June 3, 1914, the defendant filed its application for a review of 
the award, and the record in the case was accordingly transmitted on 
June 26, 1914, to the cliTk of the Superior Court of Tuolumne County. 
as required by law. j. . w,|™j; 

Secretary. 
15—11505 C^ /-.,-,n 1,^ 



226 employers' liability act decisioxs. 

(No. 104— May 8. IflU.) 

(Chapter 399. Lnws 1911.) 
Wir.LI.\M MITCHELL, Applirant. vs. CHAItLFS J. ItlCKKOKn a 



nUHATION OF DlSABlUTY — F^ILUBE OF INJURED EMPLOYEE TO COOPERATE WiTII 

MKmcAL TKF.ATMENT. — -Where the disiibility of an iujured empliiyw is iirolonspJ 
by his upBleot or n-fusal lo use his liiind and fingers iiroiieriy to Ret tliein bnclt 
into a conrtirion of hesltb, sueli euiiiloyee is not PBtitied to coropeusation after 
- Ilie iierioil at wiiieh be sliould normally have ijetoveivd. If cure in to be pffecteit, 

tlie iihysician haviuR tiie rase in rliane must liave the moKt tiioroiiKh nnii henrly 
eoi)]H'ration of the injured emiiluyee. and delay in efFeotiiic a eiire which in causwl 
I i-oopeitile does not enlitlE bim to a pro- 

Ilrnry G. Bodkin, attorney, for Applicant. 
E. W. Forgy, attornoj, for Defendants. 
This is an appliciition fur a disiihility award. The applicant, William 
Mitchell, wa.s injured on Decemlier Kl, 1!I13, while workinjf in the 
employment of the tlefendants, by having; his hand eanght in a pully 
Jtml crushed. The only i«sue mised wiis as to the duration of the disa- 
bilit.v. An awanl was made in favor of tlic applicant in the sum of 
sixty-five dollars nnd fift.v-uinc cents (^(ir>,5!l) for a temporary total 
disability of seven weeks. The applicant was further awarded as a 
partial temporary di.sability iudeninily the snui of four dollars and 
sixty-nine cents (sH.69) per week for sixteen consecutive weeks and 
his reasonable medieal expen.ses. 

H. L. White, 
l^errcfary. 

Note.— On Jonuiiry 7. 19111. Ihe :ii'I>llc:inl lileil » new .-iiiplFiinlon seeklnB lo h.ive 
furtlHT iiinipensiidon iiuiiriled htm for (be »l)<)ve menlloneEt Injury, on the Kround 
Uint his dlsabfllty iiad not termlnnteil nt the end of the period covered by the former 
liwnrd but wan in fiiL-t stlH ronllnuinK. The Hourd held Ihnt the cvldenre fniled lo 
ahi>w tbiit dlsnliillly line) hiRtnl beyond the ihtIiiiI covered by the former nw:ird snd 
denied furllier comiienaiitlon. renderlnc the folluwlnfc opinion: 

On the 13th of DccemlxT, 1!M3, the applicant in this ease sustained 
a considerable injnry to the index finjicr of his left hand and to his 
thumb and two other finjitTs of the same hand. He applied for com- 
pensation to his employer, which, beins refused, a hearing was held 
on the nth day of April, 1914. and on the 14th of May an award was 
made in his favor at the rate of $4.6il per week for sixteen consecutive 
weeks and for the reasonable value of mttlical and surreal services 
rendered to cure and n'lieve fn)m the effects of his disability. 

On the 7th of January, lillij, said Mitchell tiled a new application 
claiming that his disability had extended beyond the period allowed by 
the Industrial Accident Commission in the oritrinat findings and award, 
and a hearing was held and testimony taken at the ofBees of the Com- 



EMPI-OVERS' LIABILITY ACT DECISIONS, 227 

mission, at 606 South Hill street. Los Angeles, California, on the 14th 
(lay of January, 1915. At such hearing; the Commissioner holding the 
same directed the applicant to appear before Dr. C. 11. Whitman to 
have his hand re-examined as to its condition, but Dr. Whitman being 
out of town, the examination was made by Dr. Charles Eaton Phillips, 
who reported in sukstance that at the time of his examination, January 
2.5, 1915, the disability, if any. was verj' slight and was caused by 
applicant's neglect or refusal to use his fingers and hand properly 
and in that way get it back into a condition of health and soundness. 
In the judgment of the examining physician, the desire of applicant 
Mitchell to magnify his disability and to obscure the real extent of it 
was manifest and unmistakable. 

In view of the results of this examination, any further disability 
indemnity by reason of the accident of December 13, 1913, is denied. 

In many injuries of this character, if a cure is to be effected, the 
physician having the case in charge must have, on behalf of the injured 
employee, the most thorough and hearty cooperation to effect a cure, 
and when nature has done all that she can do to repair the injury, 
there often still remains .something for the injured person to do to get 
the maimed member back in use. This sometimes necessitates enduring 
of some pain and inconvenience, but beyond a short time allowance to 
this end, the consequence of delay in effecting a permanent functioning 
of the injured member is chargeable to the injured employee himself 
and neither to the industry, insurance carrier, nor the employer. 

A. J. Pn.LBBURY, 

Will J. French, 
Commissioners. 



(No. 105— May 8. 1914.) 

(Chapter 399, I^wa ISll.) 

RDWAItn P. KENXEEIY. AppU<-a„t. vs. ADOI.FH PETRY and SOUTII- 

WKSTEKN sritKTY [NSIU.ANCK COMPANY. Of/ftrfanfs. 

The facts are stated in the opinion. The application was denied on 
the ground that the applicant had failed to prove that his disability was 
proximately caused by aeeident. 

Hoy E. Bigham, attorney, for Defendants. 

Edward P. Kennedy is by occupation a carpenter. On the 28th of 
November, 1913, while at work, lie was. about the noon hour, taken 
suddenly and very seriously ill. Me was taken to his home, and on 
the afternoon or evening of the same day was taken to a hospital and 
operated on for a perforation of the duodenum by reason of an ulcer. 
At the time he complained of having suffered no injury by accident. 

" Goo'^fc 



228 EMPLOTEna' liability act decisions. 

although afterward he remembered that, in passing the plank up to 
him to go up on brackets, to serve as a staging, the end of the plank 
pushed him in the side, or, as he afterward thought, the injiirj- might 
have been occasioned by raising this heavy plank over his head to push 
it over, as it was passed to him, on to the bracket to be used as a 
staging. He said nothing at the time of any hurt, and the man who 
was working with him knew nothing of the happening of any accident 
or the sustaining of any injury on the part of Kennedy. 

In order to entitle an applicant to compensation it must be affirm- 
iitively established either that there was an accident or that tlie injury 
complained of could not have been suffered without an accident, in 
which event, under certain circumstances, it may be justifiable to infer 
the happening of the accident. The applicant has failed to establish 
either of these contentions, and therefore compensation must be denied 
in this case. 

A. J. PnjISBURT, 

Will J. French. 
Comm isxio nr.rs. 



(No. 10ft— May 21, 1914.) 
(Chapter 399. Laws 1911.) 



Duration ov Disabilitt — AMPUTATioff — Recovebino Stbenoth in Injured Hem- 

DER. — No compensation will be awarded for disability where sueh disability is 
caused by pain and inconvenience in gettJUK an injured member beck into use 
nfter the iujiiry baa been liealed. A common difEcult; encountered in sucb cases 
is that, even when nature has done alt that it can do to effect a cure, somethini; 
remains for the injured person to do and endure to get bach the strength of Ihe 
afflicted member, and this he is sometimes disinclined to do because it burls, but 
it be does not stand the hurt be will never get tbe injured member into com- 

The applicant in this case was injured while working in defendant's 
mine, by a rock falling from a car, crushing and cutting off the ends 
of two fingois. The remainder of the facts are stated in the opinion. 
The only question presented was as to the duration of the disability. 
No award was made, as the applicant was found to have been already 
compensated by tbe defendant for the full period of the disability. 
P. J. Ihos, attorney, for Applicant. 
H. Mallocli, president, for Defendant. 

Applicant. Sebastian Antone, was injured on the 5th day of December, 
191H. was furnished medical treatment at Sutter Creek and afterward 
by a practicing physician in San Francisco. This physician certified 
to the defendant corporation and to this Commission that Antone was 



employers' liability act decisions. 229 

well and able to return to work on the 28th day of February, 1914. 
Antone contended that, aa his fingers were still tender and bandaged, 
he was not able to return to work until about the 17th of March. The 
issue presented to this Commission is as to when the disability termi- 
nated. In siicli cases this Commission has little choice except to abide 
by the decision of the physician in charge of the ease. A common 
difficulty encountered in such eases is that, even when nature has done 
all that it can do to effect a cure, something remains for the injured 
person to do and endure to get back the strength of the afflicted member. 
This he is sometimes di.sinclined to do because it hurts, but if he 
does not stand the hurt he will never get the injured member into com- 
mission. Therefore, this Commission must, in such eases, insist that 
compensation cease when a cure has been effected and there remains 
for the injured person to endure only the inconvenience or pain of 
getting the injured member back into normal strength and toughness. 
This seems to be a ca.se in point and, for that reason, further compen- 
sation is denied the applicant. 

A. J. Pn,LSBURY, 

WiiJ, J. Fkench, 
Commissioners. 



(No. 109— June 1. 1914.) 

(Chapter 396. Laws 1911.) 

FHANK B. SMITH, Applimnt. vs. SIERRA AND SAN FItANCISCO TOWBU 

COMPANY. Defendant. 

The applicant in this case, Frank B. Smith, was injured on October 6, 
1913, by the falling of an engine he was helping to unload from a 
wagon. The accident resulted in several bruises and a fracture of the 
left leg. Compensation was paid by the defendant employer up to 
April 1, 1914. and was stopped on that date for the reason, as claimed 
by the defendant, that Smith was then able to return to work. The 
injured employee was examined on April 29, 1914, by a physician 
appointed by the medical referee of the Commission, who reported that 
the fracture was then healed, but that applicant was still suffering 
from loss of function of the leg due to protracted disuse only, and that 
the applicant could, with some pain and discomfort, resume his work. 
An award was therefore made in favor of the applicant for a temporary 
total disability up to April 29, 1914, a period of twenty-eight and 
two sevenths weeks. The sum of the weekl.v payments for this period 
amounted to four hundred ten dollars and seventy cents ($410.70). 
which amount the defendant was ordered to pay to the applicant, less 



D.gitizecbyG00glc 



230 employers' liability act nucisiovs. 

the sum of three hundred twenty-eight dollars and fifty-four cents 
($328.54), previously paid by defendant on this apcount, leaving a 
difference still due the applicant of eighty-two dollars and sixteen cents 
($82.16). 

H. L. White, 
ISecrctarij. 



(No. 110— June 18, 1914.) 

(Chapter 399, Laws 1911.) 
SOFfS IIANSRX, ApplUtint. vs. PIXAL IKJME OIL COMPANY. Drfcndaat. 

Pabtial Disahilitt— AMPrTATiON Nkuboma— Fismso of Fact.— Medical evi- 
doDco held to i^ow tl;Ht after tbe healiag of an amiiutatioD of a finger of the 
applicant, there existed on ttie Ktuini) of mich tinker an amiiutntioD neuroma, the 
effect of which whr to make the band painful if aned in tahor reqiiirinf! Rtreuclli 
and expoxiire to rout;h uxaae. That such neuroma conKtiluted a iiartial dis- 
Rhility hut waa removabte by oiieration. 

Award— DisAiiir.iTY IIemovable hy Operation — .\warii to TKRMl^ATE os Okkkb 
OF Opebation. — Wliere the evidence hIiowk that tiie injiirnl emiilojee Lbr bub- 
tained the loss of a finftcr. that such loss would not diminish his earuinit iiower 
ex(«pt for the existence of uu ainiiiitntion neuroma, and that the latter TOUld lie 
rcmovnl by o|>erali»n without risk, the Conimittsion, allhonjih it haH no tiower lu 
require tbp employer to furniiib the cost of an ojieration or to eomiiel the 
employee to submit to it, will make a jMrtial diBHbility award to terminate upon 
tbe offer of an operation and its refusal by the em|)loyee or its acrei)tance hy 
the latter and the successful removal of tlie neuroma, with lotnl disahjliiy 
indemnities while ttie ajiplieant is inca|>acitate<l as a result of llie operation. 

The facts and nature and amount of tlie award are stated in the 

opinion. 

Sofus Hansen, in propria persona, for Applicant. 
Geo. P. Merrift, secretary, for Defendant. 
On the 2!)th day of July, 1912, one Sofus Hansen, by accident 
suffered the amputation of the ring finger of the right hand and the 
ankylosis of the first two joints of the little finger. After five weeks 
he was able to return to work, but was not able to do the work of a 
tool dresser that he had been doing theretofore and for which he had 
been receiving three dollars ($3.00) per day and his Imard. but was 
able to do only the work of a pumper, for which he received one dollar 
and seventy-five cents ($1.75) per day and his Iward. The employer 
made corapeusation payments in accordance with these facts up to the 
12th of April, li)13. when such payments were discontinued on the 
ground that the disability to do Die work of a tool dres.ser had ceased. 
The applicant contended that the disability still existed and to determine 
the issue, by agreement of the parties, it was arranged that each of 
the parties should select a ph.vsician and that the Industrial Accident 
Commission should select a physician and that, in the presence of the 



emi'loybrk' liabji.ity act decisioms. 231 

physicians so selected, the medical referee seleetCvl by the Industrial 
Accident Commission should determine whether or not the fact of 
disability still existed. This (-unsiiltation was had and. as a reRiilt, it 
was found that on the end of the stnmp t>f the dismemlwred finger there 
existed an amputation neuroma, the effect of which was to make tlie 
hand painful if u.ted in labor requiring strength and exposure to rough 
usage and con.stit[ited a partial disability, but that said disability wa.s 
remediable by an operation. 

Acting upon the findings of the referee, this Commission has pro- 
ceeded to calculate correctly the amount of compensation payable to 
the applicant from the eighth day after his injury (August 6, 1912) 
lip to the date of this award, Insing the 18th day of June, 1914. We 
find as a result of these calculations the follawing facts : 

1. That the wages of applicant at the time of the accident were three 
dollars {$8.00} per day and his hoard, and it is reasonable to assume 
that the board was worth seventy-five cents {^t)J5} per day, making the 
wage three dollars and seventy-five cents (!)!3.75) ; throe hundred 
(300) times that wage ecjuals one thoasand one hundred twenty-five 
dollars ($1, 125. 00), being the average annual earnings. The average 
weekly earnings arc twenty-one dollars and sixty-three cents (^21.63), 
and that sixty-five per cent (6i)'/i ) thereof (Hpials fourteen dollars and 
six cents ($14.06). 

2. After the termination of four weeks of permanent disability, for 
which there was payable to him the sum of fifty-six dollars and twenty- 
four cents ($50.24). applicant returned to work for the same company 
at one dollar and seventy-five cents {:(!l.7ri) per day and board, Ix-ing 
equivalent to two dollars and fifty cents ($2.r»0) per day. Under this 
schedule his average weekly wage would be fourteen dollars and forty- 
two cents ($14.42), and the difference between sueh average weekly 
wage and the weekly wage received iK'fore the injury is seven dollars 
and twenty-one cents ($7.21). and sixty-five per cent (();■)'/;) thereof 
equals four dollars and sixty-nine cents ($4,(5!)). 

From the l-td day of Se]»tciiibcr, i;!12. when the period of total disa- 
bility ceased, to the ISth day of June, 1914, the date of this award, is 
ninety-three and two sevenths (9:t;) weeks. A|>plicant is. therefore, 
entitled to receive fnim the defendant oil company as a tein|)orary 
partial disability indemnity on account of his injury ninety-three and 
two sevenths (93J) times four dollars and sixty-nine cents {$4.t>9), 
which e(iuals four hundred thirty-seven dollars and fifty-one cents 
($437.51). Adding to this the total temporary disability indemnity 
above specified, makt's a total compensation payment due and payable 
to applicant up to the 18th day of June, 1914, of four hundred ninety- 
three dollars and seventy-five cents ($493.75), against which there i.s a 
credit of payments made up to the 12th day of April, 1914, amounting 



232 employers' liability act decisions. 

to four hundred one dollars and twenty cents ($401.20), leaving a bal- 
ance due and payable to applicant amounting to ninety-two dollars and 
fifty-five cents ($92.55). 

Applicant's disability is not necessarily permanent. That is, he has 
permanently lost a portion of the ring finger of his right hand and 
has suffered the ankylosis of the first and second joints of the little 
finger, but if it were not for the neuroma upon the end of the ampu- 
tated finger applicant would he nhle to do the work of a tool dresser 
and as such earn as much as he was earning at the time of the accident 
and therefore would not he entitled to another further disability 
indemnity payment. 

This injury coming as it does under chapter 399 of the Laws of 1911. 
commonly known as the Roseberry Act, this Commission has no direct 
power to require the employer to furnish the medical, surgical and 
hospital attendance neeessiiry for the removal of the neuroma, but it 
has the power to permit the partial disability payments to continue 
until a cure of the disability is effected by operation. Likewise, this 
Commission has no direct power to compel the applicant to undergo the 
operation and have tlie disability removed, but it would be manifestly 
unfair to the employer to allow an injured employee to capitalize his 
injurj- and make it a considerable source of income for many years 
rather than submit to an operation, the dangers of which are extremely 
slight, where the probabilities of the operation being successful are very 
great. We think, in such eases, we can be warranted in authorizing the 
discontinuance of the partial disability payments on the ground that 
the disability is remediable. 

Accordingly, we have, in the accompanying findings of fact and 
award, given the employing oil company opportunity to tender the cost 
of an operation for the removal of the neuroma, with the requirement 
that a temporary total disability indemnity be paid while the injured 
employee is laid up and unable to work on account of the operation, 
all further disability payments to cease when the injured employee 
Nhall have recovered from the operation ; but if the applicant refuses 
to submit himself to such operation under these terms, then no further 
disability indemnity payments are to be made to him during the con- 
tinuHuee of such refusal. 

We know of no better way of handling such a controversy than this 
and beg to call the attention of the parties to this proceeding and the 
fact that this office i>ornted out to the parties this method of settlement 
of their eontnn-ersy as long ajro as October, 1913, and we still think it 
the most feasible, iill facts considered. 

A. J. PiLLSBURY, 

Will J. French, 
Commisaioners. 



:GoO<^\q 



EMPLOYERS LIABILITY ACT DECISIONS. 233 

(No. Ill— JuDe 19, 1914.) 
(Chapter 399, Laws 1911.) 

*T10N) AppliBunt. 

C. S. Goodrich, attorney, for Applicant. 

C. D, Cooper, in propria persona, for Defendant. 
This is an applk'ation by the employer, the Natomaa Consolidated of 
California, to have determined the degree of partial permanent dis- 
ability of the defendant, its injured employee, and the amount of com- 
pensation due therefor. The defendant, C. D- Cooper, was injured 
on July 27, 1913, by having his right arm eanght in the cogs of some 
machinery on a dredger of the applicant, resulting in dislocation of 
the shoulder, crushing o£ the boue.s, and the tearing away of several 
important muscle*. An award was made in favor of the defendant in 
the sum of four hundred thirty-three dollars and sixty cents ($433.60) 
for total temporarj- disability up to March 16, 1914, less the sum of 
four hundred five dollars and twenty cents ($405.20), previously paid 
to defendant on this account. The applicant was further awarded as 
a partial permanent disability award the sum of $7.96 per week begin- 
ning with March 16, 1914, until there shall have been paid to defendant 
on account of his injury the sum of three thousand two hundred fifty- 
three dollars and ninety-two cents ($3,25U.92), this amount represent- 
ing three times his average annual earnings. 

H. L. White, 
Secretary. 

(\o. 113— July 3, 1914.) 

(Cliapler 399, Laws 1911.) 

SHIILTZ A. WEST. Appliraat. (-s. PACIFIC WAKRKIEU) CO.. asu tlMTEI) 

STATES KIDEI.ITV AND OrAUANTY COMPANY, Itifindantt. 

tichuUz A. West, in propria pi'rsona. for Applicant. 

1', T. Bell, attorney, for Defendants. 
The applicant claimed to have been injured on June 10. 1913, while 
carrying a piece of timber, by the timber falling, causing a severe strain 
of his left side. Upon diagnosis, his condition was found to be due 
to kidney trouble, and an operation was performed for the removal 
of one kidney. This operation shoived that the trouble was tubercular, 
which tubercular condition had originatwl bcfure the alleged accident. 
Compensation was accordingly denied iip(m tlie ground that the evi- 
dence was insufficient to establish that an accident was the caiiae of 
the disability. 

II. L. White, 

D.gitizecbyG00g[c 



2dl EMI'LOYEItS LIABILITY ACT DECISIONS. 

(Na 114— September 18, 1914.) 

(Chapter 399, Lawa 1911.) " 

JAMES FORESr.AN. A)iplicii«t. ™. HUNTKR U'MBKR COMPANY anp 

SOUTH WESTKHN SUIIKTY CXJMPANY, DeleadanU. 

James Foreman, in propria pernona, for Applicant. 
W'm. V. Lloyd, (ieneral Agent of Southwestern Surety Company, 
for Defendants. 
The applicant, James Foreman, was injured Oin Mareh 18, 1&13, at 
Alameda. California, when lumber fell upon him and eaused a eoni- 
poiind fraeturtf of the left leg between the knee and ankle. Medical 
and surgical services were furnished by the defendants and compensa- 
tion paid to April 14. 1914, when the disability benefit was discontinued 
on the ground that the applicant had recovered. The only issue pre- 
sented by this application was the nature and duration of the disability. 
It being sub>equently determined that the applicant was still unable 
to resume work, an award was entered by the consent of berth parties 
at the rate of twelve dollars and nineteen cents ($12.19) per week until 
the termination of the disability or further (irder of the Commission 
and payment of compensation was acirordiugly resumed. 

n. L. White, 
Secretary. 



(No. 1 Hi— September 28, 1914.) 

(Chiiiiter SW9. Liiws 1911.) 



Johti J. Wliiip, In propria persona, for Applicant, 

Sterling II. Coeti. attorney, for Defendants. 
Applicant was injured on September fi, 1913, while in the employ- 
ment of defendant Matson Navigation Com|>any at Point Orient, Cali- 
fornia, as a stevedore. The accident was eau'-ed by a tier of asphaltum 
barrels, which had been loaded in the hold of defendant's ship, over- 
turning upon the applicant, crushing him iiijainst the side of the 
vessel and badly injurintr his back. Compensation was paid by the 
defendants, upon a basis of a temporary tital disability, in the sum 
of four hundred ninety-four dollars (!|i494.00). The applicant, claim- 
ing that he was still totally disabled fnim earning his living, filed this 
appliiation with the Commission on July 6, 1914. Testimony was 
taken and the applicant wjls examined by a medical referee appointed 
by the Commission. The referee reported that the applicant had sus- 
tained a right sacroiliac luxation of a mild t.v]ie and that disability 
was nearly complete, (Compensation was therefore awardetl for a tem- 



EMPLOYEBS' LIABILITY ACT DECISIONS. 235 

porary total disability lasting until June 26, 1914, a period of forty 
and five sevenths weeks and ainountint; to five hundred twenty-nine 
dollars and twenty-nine cents ()|i529,ii9). From this amount the 
defendants were allowed to deduct the compensation previously paid. 
The applicant was further awarded a temporary partial disability 
indemnity eommeneinK on June 26. 1914, and payable until the tertm- 
nation of the disability or the further order of the Commission, in 
the amount of six dollars and fifty cents ($6.50) per week, which sum 
was one half of the temporary total disability benefits. The applicant 
was in ad<lition given the reasonable value of medical and surgical 
treatment rendered to him. not to exceed one hundred dollars ($100.00). 

II. L. White, 
Secretary. 



(No. 112— October 9, 1914.) 

■ (Clmplcr 399, tjivra 1911.) 

FU.iNK K. SMITH. Apiiliraiil. vs. MAMMOTH <^Ori'KIt MI.ViNCl COMI'ANY 

(a cobpohation), Itrfeiidaut. 

The applicant, Frank R. ISmitli. was injured by accident on Novem- 
ber 13. 1913, while W()rkin{;r fiir the Mammoth Copper IMining Com- 
pan.v at ^lammoth, California, as a carpenter. The accident was 
caused by the applicant coming in contact with elet^tric wires while 
working near them, causing him to sustain a severe electric shock, and 
to be thrown from the platform where he was at work. The injuries 
consisted in a fracture of the left collar bone, with severe burns on the 
head, right arm and right leg. The only is.sucs pnsented by this 
application were the duration and extent of the disability, and the 
average wages. 

Compensation was paid by the defentlants for twelve weelis after 
the accident, for a total disability. The Commission found, after hav- 
ing the applicant examined by a medical referee appointed by it, 
that further disability had been sustained. It appeared that the appli- 
cant had been paid full compensation on account of his injury to and 
including February 13. 1914, that thereafter he had worked for his 
regular wages from February ]4th to April 1st, but had been under a 
temporary partial disability lasting from April 1. 1914, to September 29, 
1914. by reason of being unable to do full work. (Compensation was 
awarded for the la.st named period at the rate of five dollars and 
nineteen cents ($5.19) per week, amounting to a total payment of one 
hundred thirly-fmir dollars and ninety-four cents ($134.94). 

H. L. White, 
Secretary. 



Digiti 



;<)6yG00g[e 



236 1!U1'L0YERS' LIABILITY ACT DECISIONS. 

(No. 119— October 9, 1914.) 

(Chapter J99. I^wb 1911.) 

THOMAS WESTOBY. Applicant, ts. BOARD OF EDUCATION OF THE CITY 

OF OAKLAND. STATE OF CALIFORNIA, Dclendaut. 

Electkin bt Empi«ykb — Scnooi. Distbict — Liability Without Election. — 
Where a workman ie injured whilp in the emploympnt of a school district, and 
such district had not at the time of such accident elected to come under the pro- 
visions of the Employers' Liability Act, chapter 3fi9, Laws of 1911, such scliool 
district ta not liable to pay compcnsatLon under said act for the injuries received 
by its employee. The contention that a school district or other municipal or 
public corporalioD is bound by the said act without RlinK n written acceptanee 
of its provisions has been declared unsound by Ihe Supreme Court of the Stale 
of California in the case of J/if.'cr vs. I'illtburv ct of., 104 Cal. 100. which con- 
trols this proceeding. 

The facts are stated in tlie opiiiitJii. The application was dismissed 
for want of jurisdiction. 

Lewis i& Hoycf, attorneys, lor Applicant. 

T. P. Wittscheii, deputy district attorney of. Alameda County, 
for Defendant. 
The rtH-ord in this ease shows tliat the applicant, Thomas Westoby, 
was injured on the 20th of August, 1913, while working as a carpenter 
for the Board of Education of tiie City of Oakland. The rights of the 
parties are governed by chapter ;J99 of the Laws of 1911, known as the 
Roseberry Act. This act requires that the employer, prior to any 
accident for which compensation is sought, shall have filed with this 
Commission his written election to be governed by the terms of the 
said act. The Board of Edncation of the City of Oakland, the defend- 
ant in this case, never filed such writteu election, and is therefore not 
subject to the provisions of the compensation law as it stood at the time 
of the accident in question. 

It is claimed on the part of the applicant, however, that the defend- 
ant, being a school district, was hmind by the Roseberry law without 
filing its written election. This claim is based upon the construction 
of section 4 of said act, which reads as follows : 

"Section 4. The following shall constitute employers subject 
to the provisions of this act within the meaning of the preceding 
section : 

(1) The state, and each county, city and county, city, town, 
village and school district and all public corporations, every per- 
son, firm, and private corporation (including any public service 
corporation) who has any person in service under any contract 
of Itire, express or implied, oral or writti'U. and who, at or prior 
to the time of the accident to the employee for which compensation 
under this act may he elHiiiicd, shall, in the manner provided in 
the next section, have elected to become subject to the provisions 
of this act, • • •" 



D.gitizecbyG00glc 



EMPI-OTEKS' LIABILITY ACT DECISIONS. 237 

The intent of this swtioii, it is urged, is to draw a distinction between 
the state, eaeh t-oimty, city and county, city, town, village and school 
district, on the one hand, and private employers on the other hand, 
the latter only being required to elect to came under the act and the 
former being bound without election. The Supreme Court of this 
state has, however, held to the i;ontrary in the case of Miller vs. Pills- 
bury ct al., reported in 164 Cal. 199. In the opinion in this ease the 
court says in part: 

"Petitioner insists that it was the intention of the legislature 
by thi.s section not only to divide employers into two classes, but 
to commit the state to an election of 'compensation' as the method 
of satisfying claims for injuries to its employees. He believes that 
the section should be read as if a semicolon were placed after the 
■ words 'all public corporations,' and that, so punctuated, the sec- 
tion would designate two classes of employers, (1) The state and 
the specified public corporations, and (2) Persons, firmg and 
corporations having people in their service, and further that all 
employers in the firsit group would come under the compensation 
provisions, while those in the second class would come within the 
terms of the act only by election • • •. 

"Again, it is noticeable that no machinery is supplied by the 
act whereby the service of the Industrial Ac<;ident Board may be 
invoked by the state. Xo officer is named as the proper func- 
tionary to receive service of the notice mentioned in the act. None 
is authorized to represent the state in requesting examinations of 
employees or the hearing of any controversies. These omissions 
are significant. They indicate that the legislature did not regard 
the state as being bound by the act in its present form and there- 
fore omitted to provide for those contingencies which would arise, 
if at some time in the future, the state should elect to place itself 
within the terms of the act. and which could then be made by 
appropriate legislation. We are convinced that the legislature did 
not intend the reading of section 4 which petitioner would have 
us give to it." 

While the direct effect of this decision is to hold that the state is not 
bound hy the Roscberry law unless it so elects, the reasoning, it will 
be noted, applies equally to the subdivisions of the state mentioned in 
said hcction 4, including school districts. The decision, therefore, is 
conclusive of the pre.-ent case. 

The Board of Education of the City of Oakland not having elected 
to come under the provisions of the Roseberrj- Act, this application 
must be dismissed for want of jurisdiction. 

A, J. PlLLSBURY, 

Will J. Frencb, 
IIarri:^ Weinhtoce, 
Oommissiotiers. 



D.gitizecbyG00glc 



238 EMPLOTEBS' LIABILITY ACT DECISIONS. 

(No. 83— November 7, 1914.) 

(Chapter 39», Laws 1911.) 
EDWARn AIITIII'U DKLII 



MtDICAL AND SUBGICAL SEBVICBS— LIABILITY Of EUPI.OTEB — VOI.I'NTABT FURNiait- 

INO Of Tbeatmbnt in Ex'ciiBS OF Liability.— Wliere nn employer has fumlKhed 
mpdkal bdcI siirjik'Hl treotmenC to its iajured einjiloyct in pxr?'^ of the one 
hundred dollnr (SIOO.OO) limit filed by the Roseberry Aet, nnd thereafter Ihe 
pmplo.ver. thiukiiiK thnt an operation will reduce the period ot disability 
matprialiy, tenders Riicli oiH-raClon at its own expense nnd such operation \s 
nceepled by the employee and provea unBucceiBful. then the employer Is liable 
for the full extent of thi> diHahility suffered by the employee liy reason of his 
aceideol withont rieht of deduction ot the extra expenae for medical trearment, 

Tlie facts are stated in the opinion. The Commission found that the 
applimiit had sastaiiied a temporary tatal disability lasting intennit- 
tently from the 6th day of Xovember. 1911. until the 14th day of 
Octohw, lfll4, and that fompensation had been fully paid for this 
period. It also found that tlie applicant had simtained a partial dis- 
ability extending fn)m the 14th day of October, 1914, and awarded 
payments in the sum of five dollars and sixty-two cents ($5.62) per 
week until the maximum prescrihed by law shall have been paid. Per- 
mission w!us ftiven to the defendant ti) commute this payment to a lump 
sum of one thouNand two hundred seventy dollars and twenty-four 
cents (!fl,27().24), which amount was paid to the applicant on Novem- 
ber 28, 1914. 

Edward Arthur Dclirjlit, in jtropria persona, for Applicant. 

Richard Dillon and E. B. Dai-is, attorneys, for Defendant. 
On the 6tli day of November, 1911, while in the employment of the 
Standard Oil Company at El Sefnindo, California, Edward Arthur 
Delifrht received a serious injury to the rijtht knee by beinfj; struck by a 
limber used for hoi«tin<r pipe into a car. The injured workman was 
laid up in the h(ispital for some wci'ks, but returned to work on the 7th 
of May, 1912. He worked only n short time when he was again sent 
to the hospital, returning to work on May 16th. He worked then, aot- 
witlwtanding his injuries, until the 14th day of November, 1913, when 
he was di.seharged. He demanded further compensation on the ground 
that he was not able to resume his work, which demand being refused, 
on the 29th of December, 1913, he filed an application for the adjust- 
ment of the controversy. A hearing was held at the offices of the Com- 
niissioji at Los Angeles before A. J. Pillsbury, member of said Com- 
mission, on the 15th day of January. 1914. at 10 o'clock. At this hear- 
ing it developed that applicant's knee was in a very serious condition, 
and the Con nni'si oner advised the defendant that it might be more 
profitable for said defendant to furnish an operation to cure and relieve 
the applicant, notwithstanding the fact that the limit of one hundred 

Goo^^lc 



employers' liability act decisions, 239 

dollars provided by the Rciselierry law had long since been expended, 
than to pay the full disability indemnity provided by law if applicant 
were left in his, at that time, present condition in which event defendant 
would likely have to pay the full indemnity of three times applicant's 
averaffe annual earnings. 

Out of considerations as much, and probably more humanitarian 
than financial, the defendant Standard Oil Company undertook 
to have the applicant cured of his then existing condition, and to this 
pnrpase defendant expended in exce-s of twelve hundred dollars in 
attempting to effect a cure. Unfortunately this attempt was not com- 
pletely successful and at the time of holding the second hearing in this 
case, October 13, 1914, the applicant was still suffering a permanent 
partial disability entitling him to receive the full dl-sability indemnity 
of three time-s the average annual earnings of said injured employee. 
Cunseqnently. an award is made in this case rectuiring the defendant 
to pay to applicant a partial disability indemnity of five dollars and 
>;ixty-two tents ($5.62) per week for as many weeks as the disability 
continues, not to exceed two hundred sixty and one half (260J) weeks 
by which time there will have been paid to applicant, together with 
the temporary total disability indemnities paid prior to October 14. 
1914, the full three times his average annual earnings, ectualing the 
sum of two thousand twenty-five ditllars ($2,025.00). 

Applicant has oxpres.sed a desire to have this award commuted to a 
lump sum allowing a diseouut of six per cent, and, obedient to his 
request, the defendant is given the option of paying the present worth 
of said total indemnity, the same being the sum of one thousand two 
hundred seventy dollars and twenty-four cents ($1,270.24) in full dis- 
charge of all further claim on the part of applicant on account of the 
disability suffered by reason of the accident of November 6, 1911. 

This case has been delayed in reaching a conclusion for the reason 
that the determination of applicant's disability has been piwtponed 
awaiting the result of the surgical treatment provided by defendant, 
which treatment lasted for a number of months, and the full r&sult of 
such treatment not being made evident until the 30th of October, 1914. 

It frcfiuently happens that by expending a sum in excess of the 
requirements under either the Roseberry or the Workmen's Com- 
pen.sation, Insurance and Safety Act, in attempting to cure and relieve 
an injured workman, the employer finds it a protitable expenditure 
inasmuch as an injury that otherwist' might have had a fatal termina- 
tion or resulted in a serious permanent disability is fully cured or else 
the degree of di-ahility is so reduced as to save in disability indemnity 
payments several times over the full cost of the medical and surgical 
treatment, ('nfortunately for all concerned, it did not transpire in 
this case and the defendant, through no fault of its own, but conse- 



240 EtfPLOTEHS' LIABILITY ACT DECISIONS, 

queDt upon the seriousness of the injury, has already paid in medical 
and surgical and hospital treatment a sum e<|uuling about three times 
the average annual earnings of the injured employee. Notwithstanding 
this, the injured employee is rntitJed to receive and will receive the full 
disability indemnity of three times his average annual earnings. 

This is perhap.s the only ease the Industrial Accident Commission has 
had in which such a result has been experienced and we are of the 
opinion that this exception to the general rule, that it is more profitable 
to furui.-h the necessary treatment to cure and relieve than to cut it 
off and pay the indemnities otherwise couaequent, does not vitiate the 
rule. 

A. J. PjLI^BUKT, 

Wiix J. French, 
Harris Weinstock, 

Commissioners. 



(No. 125— November 23. 1914.) 
(Chapter 399. Lawo 1911.) 
FRANK CAVANAUGir, Applicant, vs. A. W. COOK. Drfenaant. 
Frank Cavanaugk, in propria persona, for Applicant. 
Eoy E. Bigham, attorney, for Defendant. 
The applicant, Frank Cavanaiigh, wa.s injured on May 9, 1913, while 
working as a painter in the employment of defendant A. W. Cook at 
Alameda, California. The applicant was painting a hou.se and, while 
changing falls upon a roof, was thrown to the ground by the tearing 
away of the gutter, sustaining a fracture of both feet. Compensation 
was paid by the defendants in full up to and including July 24. 1914, 
The only issue involved in this proceeding was the nature and extent of 
the disability after this date, the employer claiming that applicant was 
only partially disabled after that date and offering to pay compensation 
based upon a partial di.sability equaling one half of total disability. 
The Commission found, after taking testimony and receiving the report 
of the medical referee appointed by it to examine Mr. Cavanaugh that 
the contentions of the employer were correct. An award was made in 
the sum of eight dollars and forty-four cents ($S.44) per week com- 
mencing with the 25th day of July, 1914, and lasting until the termi- 
nation of the disability or further order of the Commission, this amount 
being one half of the payment which would be due applicant for a 
ttmporary total disability. 

II. L. White, 
Secretary. 



Digiti 



;ot.yGoO(^IC 



KMPI.OYKRS LUBIUry AIT DECISKWS. 241 

(Xo. 132— November 23. 1914.) 

(Chapter 399, Laws 1911.) 

ALFRED RIEDEI., Applicant, vs. LLEWEI-LYX IRON WORKS. D<f>-ud>'"t. 

JfKDICAL ANU SCBRICAL SeBVICEK — TENDKE OV OPEBATION DT EMrr^VEB — KXPIBA- 

TiON OF Ninety Days from Date of Accibest. — Where a serious iojury has 
been sustained as a rcault of an iodustrifll accident. Hud after tlie expiration of 
aiuet; days from the date of said accident it appears tliat disabilitj atill con- 
tinues, but that such disability can be cured by an operation, an atvord will be 
made of a temporary dlsabllily indemnity, whicli indemnily, however, can be 
terminated upon the offer of an operation at tlie expense of the employer, and 
its rejection by the employee, or its acceptance and satisfactory outcome. 
Temporaby Pabtial DiSABii-iTY— Return to Wobk at Pci.l WAnKS— Slfiseqce-nt 
Reduction of Wages, — Where an employee is injured by accident and ufter 
recovering in part tberefrom returns to work at tbe same wages that he received 
before the accident, and some months tlicreafter his wages are reduced, and it 
appears that after the date of snid reduction the employee is still siiIferiDE 
from his injuries and is unable to obtain employment at the same wages as he 
earned before the accident, on account of his incapacity, a temporary partial 
disability inderonit}' will be awarded at the rate of sixty-live per cent of his 
weeiily loss of wages, until his full earnini ciipncity is restored. 

The facts are stated iu the opinion. 
John Ilahn, for Applicant. 

Si. li. I{ilchie, superintendent, ami Joint T. Jones, attorney, for 
Defendant. 

The applicant in this i-ase was a niolder employed in the Llewellyn 
Iron Works in Los Angeles, and on the 12th of August. 1913, siifftTcd 
an injury by having molten metal poured over his right foot. The 
injury to the top of the foot was very serious and resulted in the loss 
of some phalanges from the smaller foes and iu twisting other toes out 
of position, but especially left iu place of skin on the upper part of the 
foot scar tissue easily abraded and made sore by what would otherwise 
be trivial injuries. The evidence shows that by reason of this condition 
applicant was not able to earn as much as he was earning af the time 
of his injury, and. therefore, has suffered a permanent partial disability. 

But tKis accident happened under the operation and protection of 
chapter 399 of the Laws of 1911, approved April 8, 1911, and commonly 
know-n as the Roseborry law, so that the issue between employer and 
imployee can not he determined as it would be under the AVorkmen '» 
Compensation, Insurance and Safety Act, 

There were nine and one half weeks of total disability following the 
injury, and inasmuch as there was no reduction in wages froui the 
expiration of the period of total disability until the first of Janiiiiry, 
no allowance in the award is made during that period. Frtmi and 
after the first of January, the earning power of applicant was some- 



D.gitizecbyG00glc 



■i4- KMn.OYKns i.imri.iTY a(t inxisioxi*. 

whiit i-fdiK-cd and a finding is made that the loss of earning; capacity 
liv reason of the injury e(nmls three dollars and seventy-five eenta 
i^-i.~o) per week, and that sixty -five per cent thereof is equal to two 
<iollHrs anti forty-four cents (*2,4-l:}. Consecjuently. award is made 
of two dollars and forty-four c-euts (^2.44) per week from and after 
tile fli-st of .January until seven hundred and eighty (7(*0) weeks from 
llie date of the injury, or until the total compensation paid shall equal 
Ihiee times the average annual earning of said injured employee. 

This award is made, however, with the proviso that if the defendant 
shall furnish an operation such as sutigested by the medical referee 
appointed hy this CommisHion, Dr. Charles W, Decker, of Ijos Angeles, 
viz: the amputation of the thii-d and fourth small toes on said toot and 
Hie use of all good tissue below to replace sear tissue; the dissection of 
sear tissue from the dorsal surface of the foot and the grafting of skin 
"vcr the denuded area to replace the scar tis.sue, and such operation 
shall lie succiwsful and relieve the applicant from disability on account 
of his injury, then and in that event all further payment of disability 
indemnity awarded shall cca.se and determine. 

If, however, the applicant shall refuse to underijo such operation, 
then tile payment of any further disability indemnity under this award 
shall cease duHnjr the continuance of such refu.sal to submit to such 
operation. 

The Conimisniou is of the opinion that the employers will find it 
1-rofitable to themselves to have the operation performed under favorable 
conditions rather than pay the continuous disability indemnity awarded, 
ami that apjilieant will find it to his advantage to accept the operation 
)'nd l)e restort^d to health. This award is made pursuant to the belief 
of this Commission that the best compensation that an injured man can 
leceive is the best that medical and siiniii'al science can do to put him 
lack as soon as possible into the position that he was in before he was 
injured. It will not be possible to restore to him the toes amputated, 
but their Ions will not cause a disability to earn as much as he was 
earning at the time of the injury. If the vnlnerahle scar tissue can 
be replaced with good tissue so that wounds will not result from trivial 
causes, he will have Ix'en reiftored as far as pitsiible to the condition 
he wa-t in iH'fore he was injure<l. 

A. J. I'll.l--^B1KV, 

Wii.i. J. French, 
H.\HRi.« Weinstock. 

fommissioHcrs. 



D.giti?ecbyG00glc 



employbus ijabii-ity .\i-i- dkcisioks. "24:1 

(\o. 126— NovemlHT 25. 1314.) 

(Chnptpr 399, Laws 1911.) 
N. V. SIXCLAIR. .[pplhaiil. vs. GREAT WBSTKIIN IHIWKK roMI'AN^. 

Di-feiiilaiti, 

.V. V. Shiclair, in propria pi'rsona, for Applicant. 
W, H. Spauhlitit/. attorney, for Defend ants. 

Applicant N. V. Sinclair claimed to have been injured on iSepleni- 
her 28, 1913, white working at Keddie, PliimaH Connt.v, California, in 
Ihe emplo.vment of the defendant Creat Western Power Company. The 
Hccident oecnrred while the applicant was unloading heavy saw horties 
from an aiito trnek, a saw horse beinsr dropptnl by a fellow cmpiinee 
upon the applicant's right foot. The applicant claimed thtit the arch 
it the ripht foot had been broken, snd that he had suHtained a iwrnia- 
nent partial disability. The defendant denied that the applieant was 
snflFering from any disability and in addition asserted that the claim 
was barred by the statute of limitations, and was also l>arred by the 
action of the applicant in in.stitutiug a proceeding in the Superior 
Court for damages for the .same accident. 

It appearing from the evidence protlnced tiiat iu)tiee of said accident 
was not given by the applieant within one year, and that no payment 
(Ui account thereof had been made by defendant, and that therefore the 
right of the applicant to compen.sation wa-s wholly barred by the limita- 
tions provided in section 10 of chai>ter 309 of the l^aws of 1911. i-oni- 
pensation was denied. 

n. L. WiMTK. 



(\o. 120— Decembei- 12. 1914.) 

(ChnptiT 11*9, I..11WS 1911.) 

a X. IXMAX. .Iri-liraiil. vs. STASnAlin cm, rOMI'AXY (A ciiKr.iUATli)\i. 

DfU:«l«..l. 

(1. D. Ilan'ii. attorney, for Applieant. 

0. C. OTuniiiU. attorney, for Defendant. 
The applicant was injured at K! Segundo, California, on November 21. 
1SH3, while working in the employment of the Standard Oil Company, 
by a sheet of steel falling upon bis left foot. Medical and surgical 
treatment was furnished at the expense of Ihe defendant and full com- 
pensation paid up to April 15. 1914, for a temporary total disability. 
The issues preseufed by this application were the nature and the 
duration of the further disability, if any. and the average wages of the 
applicant. The Connnission founil that the applieant was still suffering 

Goo^^lc 



244 employers' mabii.ity act 

I'l-oin a partial disability and a\varded an indemnity at the rate of 
t-ne dollar and eighty-eight centN (ifcl.^ti) per week, commencing with 
April ir>; 1914, and lasting until the termiiiiition of the disability or 
the further order of the Commission. 

H. L. White, 
Secretary. 



(No. 123— December 12, 1914,) 

(Chap'^r 399. Tiaws 1911.) 



C'ftn's Raunsbeck, in propria persona, for Applicant. 

Roy E. Bifflidm, attorney, for Defendants. 
The applicant, employed as a bricklayer, was injured at Fresno, Cali- 
fornia, on August 31, 1913, by a fall from a scaffold on the second story 
of a building under construction, to the alley below, receiving a com- 
poiuid fracture of the right thigh. Compensation was paid by the 
defendants for forty-nine necks upon the basis of a temporarj' total 
disability, and thereafter for nine weeks for a temporary partial disa- 
bility of :'W per cent. At the end of this period the payments were 
discontinued on the ground that the disability of the applicant had 
terminated. The applicant, claiming to be still disabled, filed this appli- 
cation with the Commission. It was determined, after the taking of 
testimony and the receipt of repoi-ts of various physicians, including 
ji medical referee appointed bj' the Commission, that the applicant was 
still under a partial disability. An award was thereupon made in the 
(=nm of ten dollars and forty-two cents ($10.42) per week, commencing 
with July 1«. 1914, and lasting until the termination of the disability 
or further order of the Commission, on which the defendants were given 
credit for payments made by them up to and im-ludinff the 7th day 
(.f O.-tober. 1914. 

H. L. White, 
Secretary. 



(No. 130— December 12, 1914.) 

(Chapter 399. Laws 191!.) 
I.\\tl:r. <;.\R[>INTERO. Applicant. TB, MAMMOTH COPPER MINING COM- 
PANY. Defendant. 

Julinii If. liiddle, attorney, for Applicant. 
It. S. I'lrich, attorney, for Defendant. 
'llii' applieant was injured on May 28, 1913, while working in the 
in]i!.i\ iiicnt of the JIammoth Copper Mining Company at Kennett, 



EMPLOTBRS' LIABILITY ACT DECISIONS. 2-l:'» 

California, as a miiier, hy a rock fallinp; upon him, earning a doubli" 
fracture of tlie right leg. tJonipeusaticn Has paid by the defendant up 
to and including the 11th day of October, 1914, at which time payments 
were discontinued on, the ground that the applicant was able to resume 
work. The applicant claimed that he was still totally disabled and 
filed this application. The Comnii- sion found, after taking testimony 
and referring the applicant to an expert physician appointed by it, that 
there was still considerable deformity occasioned by the union of the 
fpagments of the broken bones in nial-pcsition. A temporary partial dis- 
ability payment was awarded of three dollars and eighty cents ($3.80) 
per week. This payment was directed to be made for thirty weeks from 
October 8, 1914, at the end of which period the earning power of the 
applicant will probably be completely restored. 

H. L. White, 
Secretary. 



(Xo. 129— Dccniber 28, 1914.) 

(Chapter 399. Laws 1911.) 
FRANK C. HUNT. AppUcaitt. vs. MOtTNT WHITNEY I'OWElt AN]> EI,i:<- 
TRIC COMPANY, and SOUTHWESTERN SURETY INSURANCE COM- 
PANY. Df^cnrfmtt*. 

pERMA\E\r UisAmuxr— Foj-icv ok J.mustri.m. Acohient CoMMis»io>,— It i* the 
|)olicy of tlie law to stiuiiilHtc self liclp by redudng the cumiiciisatiuii lu.vnlilf 
whfn it may properly be reduced, rather thnu to encournite inefficienry by pny- 
inent of disability imlemnities beyond the requirement of the injured persons. 

Id. — FiNDiNO OP Fact, — Evidence held to show that the applicant was laboring, at 
the date of the hearing of his case, under a temporary partial disability and that 
his toi^ of wages wna approximately half of the wages which he wbs rocelvinc 
at the time of his itijury. 

The accident occurred at the steam plant of the Mt. Whitney Power 
and Electric Company at Visalia. California. The remainder of the 
material facts are in the opinion. Compensation was awarded upon the 
basis of a 5U per cent liwss of earning power, the amount of the weekly 
temporary partial disability indeniiiity being eight dollars and forty- 
four cents ($8.44) per week. The amount was made payable until the 
termination of the disability or further order of the Commission. 
Karl A. Batjhy, attorney, for Applicant. 
//. /(. JlcChirc, attorney, for Defendant Mt. Whitney Power and 

Electric Company. 
}{'nj E. Biyham, attorney, for Defendant, Southwestern Surety 
Insurance Company. 
Ou the 9th of August, 1913, a cable operating an elevator broke, 
precipitating the applicant a distance of 44 feet and injuring him 



246 Kiii^i-uviais' ijahii.itv .\rr decisions. 

si'vcrt'lv. l)f feral jints' pitiil him full i-iniii>en,--atkin from tht; <Mglitli 
day after the injury until the ftth of Septeniher. 1914. when they 
reiluecd the puymeiilu by apjiroxiniateiy one half ou the ground that 
the <lisHbility whs no longer total and thwt, by the exereise of reason- 
able dilifretiee in seenrinfl employment, applicant should he able to 
earn half wajtev. as. indeed, he had done for a small portion of the time 
sinee beinfr injun-d. Applieant denied his ability to do this and filed 
with tlii.s Commission his applieation for adjiiitment of the eoiitroversy. 
A henrini; was held at Vlsalia o'l the !ttU day of Xovenibe'r and the 
eause was duly .submitttul for decision. 

It is luolmble that applieant is periiianeotly injured in that the 
arche.s of his feet were broken diiwu by the fall and that hLs ankles are 
so stiffened that he will no lonsrer be able to follow his oecupatiou ai 
carpenter. However, he still has his hands and his mental faeulties 
tinimpaired and is able to get about, although with difficulty. We think 
that the contentioin of defendants, that applieant 's disability is partial 
and no ionjrer total, is entirely reasonable and that, with reasonable 
dilijrenie. he >hould have Uvn able, by the oth of September 1914, to 
develop an earninfi capacity etjual to half his wajfe value prior to the 
accident and injury. It is the policy of the law to stimulate such self 
help by reducinir the compensation payable, when it may properly be 
reduced, rather than to encourage ineffieieney by payment of disability 
indemnities beynnd ihc reipiirement.s of the injured person. 

Furthi rniore, if. as the medical referee in this ca.se Is inclined to 
believe, the injuries of applicant are permanent in clianicter. hi.s dis- 
abilit,v indenuiity under the Roseberry law. even at half rate, will last 
him slightly h-ss than seven years from the date of the first payment of 
the disability indcmnit.v herein awarded, and it will be better for him 
to receive half indemnity for .seven years than fidl indemnity for three 
years and a half. 

We are of the opinion that the defendant employer and its insur- 
ance carrier have acted with entire fairniss io the premises and there- 
fore confirm their action with reference to the payment of disability 
indemnity in this ease. 

A. -1. l'ii,T,sBrRV. 
Wn.i, ■!. French. - 
H.\RKis Weinstock, 



Co 



immixsioiicrt 



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EMPLOYERS LIABir.ITY ACT DEnSIONS. 247 

The following cases were dismiaxed at the request of the applicant 
prior to hearing or decision, upon payment in full of compensation 
claimed or otherwise. 

No. 8— Septcnilier 18. 1912. 
C. i:. IIKE, Api>IUn«t, VB. GREAT WESTKKX PUWEU COMI'.\NY, Difrudnnl. 

No, 5— October 7. 1912. 
FltAXK U BLACKBIKX, as aomixistratob of the >:htate of Jaues Husskij.. 

l>V*.-V.\nKIt. OK KEIIAl.I' OF JOSEVUINF. RfHSEl.l.. .lOHK Rl'SHBLL ASH IXll'IS SJ. 

OF ttAiii Jaues RissEJi., DEOEASEo, .1 j,j,fiVoHf. VS. LACKMAN & JACOBI (a 

N),7)c/fHrfon/. 

No. 14— .January i;i. 1913. 



Xo. 16— .Jainiar.v 14. 191:i. 
«". It. MAXWEtJ.,. .\ppUc«nt. va. STAM»AI{I) OIL CO.MPANY. nefr„da,il 

No. 35— .\l«.v rt. 1913. 



No. 49— July 30. 1913. 



No. 31— Au<;u.st 8, 1913. 
II. I.EAVKNWORTII. .lppli,a„t. vs. IIANSOME C().\CIll'7rK COMrANV, 



No. 45— September 19. 1913. 
ItOY SWAIN. .l;j;>/;iaH(, vs. FRESNO FUME ANI> LIMIiKa fOMI'AXY. 



No. r>fi— Octi.ixT It). 1913. 



No. 6t)— Ilei-ciiiber 5. 1913. 
.]. VIN«'E\T. A,<ptir„„l. vs. NATUMAS CONSOl.in.VTEl) OF CAI.IFORM. 



Na 71— K.-iemlier Ifi. 1913. 

JOHN COI.EHO.N. \i,,,li,-,i«l. vs. (■(►.VTRA COSTA CnNSTItll-noN CnM- 

I'ANY (A ciiiroKATiiiM. n.-lr,„l.„,l. 



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KMl'LOYERS J.IABll.liY .\(T UKCI^IO 

No. 92— February 2S. 1914. 



No. 115— June 4. V.IM. 
FRANK R. SERl'A, Aiiflii'ii'it. vs. T. W. COIIDKI!, Ihf-ndaitl. 

No. 85~Jiine 9, 1914. 
lAJflS BKNDKR. Applii-ant. vs. SIEKRA AND RAN FRAXI'IS(X» l'<.)\VKR 



No. 1IJ7 — June 9. 1914. 

M. r. CIM.MINGS. Applka«l. vs. RICHARIIS NETS'IAHT CONKTRIITION 

COMPANY, D-lr,.Ja„l. 

Ni). 121— Oi'tober !). 1914. 
KI>NA MAY STKOWGKK, widow of ERWIN L. STROWUKR. deciusei>. 
.ippliranl. vs. HOWARD L. GLASS ami THOMAS PERLE GLASS, a 

.■OPAKTNEBSiril', DOINR Bl SINKSS CNilKR TIIK rillM NAMK ASIJ STYLE OF GLASS 

KBOTUKRS. AT COBONA. CALUfiiiNiA, A.\J> -TITNA LIFE INSURASCE 
COJEPANY (A ^.■ORPOBATlo^), DthudanU. 



No. 12-i— OclobtT 26. 1914. 



No. l;f]— l).H-eiiibtr 9, 1914. 



No. 124— Dewmber 29. 1914. 



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PART II. 
REPORT OF DECISIONS. 

WORKMEN'S COMPENSATION, INSURANCE 
AND SAFETY ACT. 

(Chapter 176, Laws 1913) 
Jamiar>- 1, 1914, to December 31, 1914. 



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INDUSTRIAL ACCIDENT COMMISSION 
DECISIONS. 



{No. 3— February 24, 1914.) 

(Chapter 176. Lawa 1913.) 

CLARENCE P. WINN, Applicant, vs. JAMES SMALL AND BENJAMIN DDO- 

CHETZ, Defendanti. 
Burden of Pboof— In ability to Babs— Liability to Find Wobk to Do. — 
The burden of proof ia upon an applicant to establish the fact of disability, 
and he must show that his laabiiity to earn as much as he was eamine al tlie 
lime of the injury is the result o( the injury and not because work is scarce 
and bard to find. Compensation is payahlc for inability (o do worlt, not for 
inability to find work to do. Evidence held insutGcient to ahow compensable 
disability. 

Application for compensation on account of a shoulder strain. Thn 
tacts are stated in the opinion. Compeiisation was denied. 
Clarence P. Winrt, in propria persona, for Applicant. 
James Small and Benjamin Drocheiz, in propria persona, for 
Defendants. 

The applicant in this case suffered a straining of the left shoulder 
through accident on the 8th of January, 1!)14, while engaged in paint- 
ing a house. He was employed by James Small, a contracting painter, 
uninsured and without property and unable to pay compensation if 
awarded. Defendant Drochetz, owner of the house being painted, was 
made a party to the proceeding as principal. The job was completed 
on the day of the accident. 

The burden of proof is upon the applicant affirmatively to establish 
the fact of disability and to show that his inability to earn as much as 
he was earning at the time of the injury was the result of his injury 
and not because work was scarce and hard to find. We think the evi- 
dence introduced on "his behalf insufficient to meet this requirement. 
Applicant lived in the same house with his employer for two weeks after 
the injury without ever mentioning to him the fact of injury, at the 
conclusion of which time he packed his effects and moved away, carry- 
ing in one hand a grip and in the other a suit case. lie is a capable 
man, his right arm was uninjured, and within two weeks after the 
accident, notwithstanding the lameness in his shoulder, he should have 



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6 INDUSTRIAI, ACCIDENT COMMISSION DECISIONS. 

been able, by the exercise of reasonable diligertce, to earn as mufh as 
he was earning at the time of the accident. Compensation is payable 
for inability to do work, not for inability to find work to do, 

A. J. PiLLSBURY, 

Will J, French, 

H. We IN STOCK, 

Commissioners, 

NoT£- — Application for reUearlnff herein wii« fliprf l»v iht^ annlirnnt on Mnr*»h s 
IIIH. The applipiLtlon was Kranled. nnd furl 
1914. An order was entered April 3. 1911, alfl 



. {No. 1— February 26, 1914.) 

(Chapter 176. Laws 1913,) 

IIKNRY F. KOrn:. TRUSTEE FOB ITARRY A. BODE, a minor. Appliiaat. vs. 
SIIREVE & COMPANY (a corporation) and .Kl-NA LIFK IXSURAXCE 
COMPANY (A CORPORATION), Ili'lirndanU. 

mployee makioic an effort to escape from a danger 
ngaiDst which danger be had been warned, is acting 

iloymcnl. and is entitlfd to com pen sat ion for acctdenlal 

while so escaping. 

NDUsTRiAL Orbit. — It ia a well seltiod principle that 
an emploj've in not, like a part of the machine he operateN. fixed to precisely the 
mechanical movprnents he must perform in order to discharge hia industrial 
function. He may do all the tbines that a human bi'ing may reasonably do 
while in the performance of his duty without such acts tntlng him outside of 
the course of his employment. 

Application for compensation for loss of middle and ring fingers. 
The injured employee was a minor, and hia father was appointed 
trustee to represent him herein. The fwcts are stated in the opinion. 
The applicant was awarded the sum of $li60.00 in weekly iustallmentB 
of $9.00. 

Hevry F. Bode, trustee, for Applicant, 

E. atockwell, attorney, for Defendants. 
Harry A. Bode, a minor, the injured employee in this ease was, on 
the 6th day of January, 1914, while in the employ of Shreve & Com- 
pany, caught in the gearings of a rolling machine and injured to the 
extent of the loss of the middle and ring fingers of his left hand, 
Medical and surgical services were promptly and adequately furnished, 
but further compensation was denied by the defendant JFAna Life 
Insurance Company on the grounds that 

1. The ai^cident did not arise while the injured employee was acting 
in the course of his employment, and 

2. That the accident was due to the wilful misfonduct of such injured 
employee. 



INDUSTRIAL ACCIDENT COMHISSIOK DECISIONS. 7 

It was the duty of the injured employee to recGive bars of silver 
as they passed through the rolls of a powerful machine driven by a 
15 horsepower motor, and to place them on a table at the side of the 
machine so that the machine operator could pass them through the rolls 
again and again \intil they had reached the required thinness. 

When a thick bar is inserted the strain upon the machine is occa- 
sionally so great as to tear from its base the iron table upon which the 
rolled bars are delivered, and thus cause it to fall out upon the tioor. 
Kor this reason young Bode had been warned that when he heard a 
cracking sound, or had other reason for fearing the tearing loose of 
the table, he must get out of the way, inasmuch as, if the table were 
torn loose, it would fall upon his feet and crush them. 

It is perfectly clear from the evidence, and from an inspection of 
the machine, that, upon the occasion of the accident in question there 
was warrant for the lad's fearing that the table was about to fall out 
upon his feet and that, panic stricken, he bolted. 

Three or four feet from where Bode stood at his work an iron pipe 
conduit, conveying high tension wires, passes under the machine and 
on top of the pavement. In getting out of harm's way, as he supposed, 
Bode's foot caught against this conduit and tripped him. As he 
attempted to catch himself, his left hand fell into an unprotected 
gearing, the like of which probably can not be found in any shop where 
care has been taken to make employments and places of employment 
safe. Had not the bars of silver, on entering the rolls, so strained the 
rolling machine as to cause the fuse to blow out and the 15 horsepower 
motor to stop, the lad's arm, up to the shoulder, would inevitably 
have been reduced to a pulp — possibly his whole body might have been 
crushed. His escape from death was well nigh miraculous. 

With reference to the defense that the accident did not occur while 
the injured employee was acting in the course of his employment, the 
defendant offered the testimony of the master mechanic to the effect 
that, a quarter of an hour before the aeeident had happened, he had 
caught young Bode in the act of flicking spittle from the frame of the 
machine, only a few inches from the gearings, and had warned him to 
keep away from them. From this incident the master mechanic, 
ignoring the stopping of the machine and the blowing out of the fuse, 
erroneously concluded that the accident had happened as the conse- 
quence of the lad's refusal to heed the warning given him. 

The head foreman of the press and rolling department testified that, 
at the time of the injury, he took charge of the boy to afford him first 
aid, and at that time the boy told him that he was stooping over to 
spit and did not look where he was placing his hand and thus got 
caught in the gearings. Ignoring the extraordinary coincidence that, 
at that particular instant, the fuse blew out and the motor stopped, 



8 INDUSTHr.VL ACCIDENT COMMISSION DECISIONS. 

would this fact, if true, place the aCTident outside the course of employ- 
ment? We think not. The gearings were less than six feet from 
where the injured empjovee stood at his work and were a part of the 
machine upon whiih he worked. He was dearly within his industrial 
orbit where he had a right to be. Had he gone to another part of the 
shop, and, while loitering around, had had his hand caught in the gear- 
ings of some other mai'hine, the conclusion might be different. 

Moreover, it is a well-settled priniiple that an employee is not, like a 
part of tht' machine he operates, fi.xed to precisely the mechanical move- 
ments he must perform in order to discharge his industrial function. 
He i-i a sentient being, and may do all the thinfffl that a human being 
may reasonably do while in the performance of his duty, without sueh 
aels taking him tiutslde of the course of his employment. To step to 
one side to spit, is undoubtedly such an ai^t. Even though the lad had 
not looked where ho put his hand, it could be considered only as an act 
of nogligcni-e, not one of miscondui-l. f-ompeiisation is payable with- 
out regard to negligence. 

So far a-i the claim of wilful mi.sconduct is concerned, no evidence 
was introduced that even remotely tended to support such a defense. 
That fact brings us to a point we desire to emphasize in this instance, 
viz; that appli<-alions for adjustment of controversies should not be 
made to this Commission and claims for compensation should not be 
resisted by employers or insurance carriers, unless there is at least 
some prima facie evidence available to justify the same; otherwise, this 
Commission might be overburdened with the adjustment of contro- 
versies of a trivial character. 

A. J. PiLLSBDRY, 

Will J. French, 

Gomtnissiofiers. 

(No. 2— February 26, 1914.) 

(Chapter ITS, Ijiwb 1913.) 

Mils. FRANK I.UTZ, Applicant, vs. GI,ADDING. McBtlAN & COMPANY (a 

cokpobation), nrfendanl. 
Wu.Ffi, Miso<wiiiicT — Violation of Rules — DisonKiMKKcK — Wabmkg.^.^ defiri- 
licin of "n-ilfiil misooniltici" niiplioablp to all enws ciin imt bt; formulated. It 
may bo atatc-d m a Rcnpral wny thnt the wilful violation of a rule or order made 
lor the ptniiloyw's onu !.a£ety, or the siufi'ty of olliers. ntid made by a power 
liaviii;; authority lo mako sin;h ruli- on ordor, and enforced with diligcnee, will 
conBiitute wilful miscondiK't. There must lie a rule or order as distinguished 
from Q wnrnins. It must be dilifieutly enforced. It must appear that the 
eiu|iloyce is refrni'tory or iiili-uliimally and prpniedi tat wily disohcdient in order 
10 coustiliit'- wilfiilii.ss. KvidiJiiT in (his ruse liHil insiiffieioiit to show wilful 
misconduct. 

This was an applii-jition fiu- death bcncfil.s by a widow. Liability was 
denied bccau.'ie of allejrcd wilful misconduct on the part of the deceased 

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INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 9 

employee. The facts are stated in the opinion. Award was made in 
the sum of $2,025.00. being three times the average annual earnings 
of the deceased, payable in weekly installments of $8.45. 
Mrs. Frank TaiIz, in propria persona, for Applicant. 
AthoU McBean, secretary of defendant corporation, for Defendant. 

Prank Lutz was a common laborer in the employ of Gladding, 
McBean & Company, a corporation, at its elay products factory at 
Lincoln, Plarer County, California. On the 2d day of January, 1914, 
his clothing caught on the toggle of a friction clutch on a rapidly 
revolving shaft and he was whirled to his death. 

The place of employment at the time of the accident was a narrow 
trench or cellar underneath the floor of the factory, where was located 
a long shaft with pulleys and belts used for driving clay-mixing 
machines situated on the floor above. For the better working of the 
materials it became necessary to shift one of these mixing machines and 
the conveyor, and, to this end, the foreman instructed a carpenter, Mr. 
GuUiford, what chanfres to make and also told Frank Lutz to help with 
the task. 

One of the tasks was to strip a concrete wall of the wooden forms 
that had been used in its construction six months before, the form being 
of 1 X 12 l)oards nailed to 3 x 3 scantlings. Foreman Peraberton gave 
the instructions 1o carpenter GuUiford to strip the wall up to the end 
of the shaft, but not to go beyond such shaft, as the form could be 
stripped away from there some time when the machinery was not run- 
ning. He told Lutz nothing about this, but did show him the machin- 
ery in motion, and warned him to take no chances. 

When the stripping had reached the shafting Lutz asked GuUiford 
if the rest of the form was not to be removed. He was told that at that 
time it was not, that it could be done some time when the machinery 
was not in operation, because the task would then be less dangerous. 
Lutz replied that there was no danger aud that he was going to proceed 
with the stripping. GuUiford again cautioned him against doing so, 
told him that he had no onlers to remove the forms back of the revolv- 
ing shaft, declared that he would not risk his own life in there for a 
minute, to all of which Lutz smilingly replied, "Oh, I'll not get hurt, 
Prank," and continued with the task. 

The work went on in that manner from 11 o'clock in the morning 
until noon, when an hour's lay-oif was taken for lunch. During the 
lunch h( ur GuUiford made no report to the foreman in relation to Lutz' 
disobedience, if such it can be called. During the lunch hour, he also, 
as he stated on the witness stand, (ulriscd rather than ordered Lutz not 
to work behind Ihe shaft. The work was n'sumed after lunch and con- 
tinued until the wall bad been cnfircl.v slrippcd, and all except a few 

Goo^^lc 



10 INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 

short boards had bwii thrown over the shaft and carried out. In seek- 
ing to reach these, a.^ finlliford pushed them back toward him, one of the 
toggles on the frietioD dutch eaught Lutz hy his overalls at the sidtt 
and whirled him about the shaft until his clothing was torn from his 
body and his body wa-s dashed upon the ground with little life left in it. 

The sole issue in this case is, was Lutz guilty of "wilful misconduct" 
within the meaning of the act? 

It is perhaps impossible so to define "wilful misconduct" as to make 
such definition applicable to all eases, but it may be stated in a general 
way to consist in the "wilful violation of a rule or order made for the 
employee's own safety, or the safety of others, such rule being pre- 
scribed by a power having authority to make such rules, and enforced 
with diligence." 

In this ease there was no such rule or order. The carpenter in 
charge strongly advii-:ed his helper against taking the ri.sk of working 
behind tHe revolving shaft, but he took no steps to discipline or enforce 
any order or command and, as stated above, although Lutz continued 
working in that dangerous place for three hours Oulliford failed to 
report that fact to the foreman. The only pretense of a rule or order 
regarding safety was "to be careful and take no chances," but even a 
definite rule would be held to be no rule where so inadequately enforced 
as was this admonition to be cautious, which doe* not rise to the dignity 
of being a rule or order or command. It was GuUiford's duty, when 
Lutz failed to come out from behind the shaft in obedience to his request 
and power of persuasion, to drop his tools and report the situation to 
the foreman, whereupon it would have become the foreman's duty to 
command obedience or lay off or discharge the workman then and there. 
Had such a policy been pursued a valuable life would have been saved. 

That Lutz was obstinate in a good-humored way is evident enough 
from the testimony given at the hearing, but in his enthusiasm to get 
the work done he misjudged the danger he was in. We feel assured 
that he had no thought of being refractorj' or intentionally or preraedi- 
tatedly disobedient to any rightful authority over him. It is such 
elements that constitute "wilful mi';conduct" within the meaning of 
the Workmen's Compensation, Insurance and Safety Act. 

A. J. PiLLSBUKY, 

Will J, French, 
Harris Weinstock, 

Commissioners. 



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INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 11 

(No. 5— March 9, 1914.) 

(Chapter 176. Laws 1913.) 

ICKNKST S. KEltCUIERSON ani> CL.VRA FKRGUERSON. Apiilicanlt. vs. 
ROYAL INDEMNITY COMPANY (a cokporation), and SOUTHERN 
CALIFORNIA GAS COMPANY (a oorpobation ) . DefendanU. 

L'ouKSG OF Employuext — Sebvice Growinq Out of and Incidental to Emplot- 
M EST— Continuous Employment.— Where it wna the duty of an employee of 
a KQB compnny to read meters, abut off tb« gas nben patrons of tbe company 
moved, collect accounts nod deliver orders, and his employmeat did not end 
at any particular hour or place, his emploj'meat was coutinuous, and be was at 
all times, except when at home, under tbe protection of the comiwrntation pro- 
visions of tbo law, and is entitled to compensation for disability for accidental 
injury by collision of his motorcycle with an automobile, in a public street, 
while on his way home, although not actually engaged id the performance of a 
service of bis employment at the specific time and place of the accident 
(Harris Weinstock. Commisaioner. dissentpd on the ground that tbe employee 
was not. at tbe time of the accident, performing service growing out of and 
incidental to hia employment, and was not acting within the course of hia 
employment as »ucb employee, as provided in section 12 (a), (2) of the Work- 
men's Compensation, Insurance and Safety Act.) 

Wilful Mihco.miuct — Vioi.ation or Obdinanck. — Evidence held to show that 
applicant whk not riding his motorcycle at the rate of thirty milett pt-r hour, 
or at any rate in excess of the speed limit of tifli^'n railpH per hour. But if sucb 
violation of llie speed jirdinance were proved. It would not by itself constitute 
wilful misconduct. 

Application for compensation for injuries received in a collision 
between applicant's motorcycle and ap automobile. The facts are 
stated in the opinion. Award was made in the sum of $58.50, accrued 
compensation, and the additional sum of $9.75 a week during the 
continuance of temporary total disability, ami until the further order 
of the Commission. 

Ernent 8. Ferguerson and Clara Feryarrson, in person, for 

Applicants. 
B. G. 'Wills, agent for Royal Indemnity Company, for Defendants. 

Ernest S. Ferguerson was, on the 20th of January, 1914, the date of 
the injury complained of, in the employ of the Southern California Gas 
Company at Los Angeles as messenger and it was his duty to read 
meters, shut off gas when patrons moved, collect accounts, and deliver 
orders from the office of said company at Eighth and Broadway to the 
gas plant of said company at or near Tenth and Santa Pe streets in 
said city. In performing this service it was necessary for him to ride 
a motorcy<'le which he, himself, furnished and for the up-keep of which 
the defendant gas company allowed him ten dollar.s per month, his own 
wages being sixty-five dollars per calendar month. On the 20th of 
January, a few moments after 5 o'clock p. m. while proceeding south- 
ward along Los Angeles street, on the west side of the street, applicant 
Ferguerson ran into and collided with an automobile driven by Mr. 



12 INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 

J. D. Horton that was just turning westward out of Los Angeles street 
into Fourteenth street, with the result that the knee of applicant was 
very seriously injured, the full extent of which injuries could not, at 
the time of the hearing, be determined inasmuch as applicant was still 
confined to his bed in the hospital. 

Defendant Royal Indemnity Company resisted the payment of com- 
pensation in this ease substantially on the following grounds: 

1. That the injury did not arise out of and was not within the course 
of the employment, and, therefore, dees not eome within the purview 
of the compensation provisions of the Workmen's Compensation, Insur- 
ance and Safety Act. 

2. That the applicant was not, at the time of the injury, performing 
Kcrvice gn)wing out of and incidental to his employment, in that he had 
finished his day's work and was on his way home. 

3. That applicant was guilty of wilful misconduct within the mean- 
ing of the aet in that, at the time of the injury, he was riding at a 
greater rate of speed than allowed by an ordinance of the city of Los 
Angeles regulating the speed of such vehicles upon the public streets. 

Issues one and two are practically one issue and will be considered 
together. 

It is a well settled rule of compensation law that, in cases where 
employees are working with regular hours of duty, whether paid by the 
day or the week or by calendar month, they are uuder the protection of 
the compensation act from the moment the\' enter the premises of the 
employer at the beginning of their work-day until they leave such 
employment at the close of such day, but not at other times or places 
unless specially commissioued to perform particular services at other 
times and places; but there are classes of employees whose days of labor 
do not end until their work is finished, however early or late they may 
be required to work. This would be especially true with traveling men, 
who may be said to be under the protection of the act from the time 
they leave home for a trip until they return, unless out for joy rides 
or something else not connected with their employment. 

In the ease under consideration applicant's employment did not end 
at any particular hour or place. It is true that, on this particular 
occasion, he had delivered his last message and was on his way home, 
but if, while on his way, be liad found a van backed up in front of the 
house of any customer of his company with evident intent to move 
away, it would have been his duty to stop, read the meter, ascertain 
the place of removal, and collect the gas bill to date, and this would 
have been his duty at all times wilhcut re^-ard to hours. In short, his 
employment was continuou.s. and be was at all times, except when at 
home, under the protection of the compensation provisions of the act. 

]( follows likewise thai if, at the time of his injury, he was perform- 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 13 

ing service growing out of and incidental to his employment, the injury 
must, in this instance, have arisen out of and in the course of his 
employmeDt, and we so hold. 

With reference to the defense of wilful misconduct, in that applicant 
rode his motorcycle at a greater speed than allowed by the city of Los 
Angeles, to wit, 15 miles per hour, wc arc o£ the opinion that the evi- 
dence of his going at the rate of 30 miles per hour, or at any speed 
greater than 10 or 12 miles per hour, is insufficient to establish the 
fact, and even if it were, there was no evidence to show that such last 
riding was wilful misconduct within the meaning of the act. The evi- 
dence showed that applicant was a careful and prudent rider, and never 
at any time had been complained of or arcestcd or called to account for 
fast riding upon the streets of Los Angeles. 

A. J. PiLLSBURT, 

Will J. French, 

Commissioners. 

I dissent. I am wholly unable to concur, either in the reasoning of 
the majority or in the result to which such reasoning leads. We must 
be guided by the law. Section 12 («) (2) reads: 

" (tt) Liability for the compensation provided by this act, in lieu 
of any other liability whiitsoever. shall, without regard to negli- 
gence, exist against an employer for any personal injury sustained 
by his employees by accident arising out of and in the course of the 
employment and for the death of any such employee if the injury 
shall proximately cause death, in those cases where the following 
conditions of compensation concur : 

"(2) Where, at the time of the accident, the employee is per- 
forming service growing out of and incidental to his employmeat 
and is acting within the course of his employment as such." 

It is clear, to my mind, that the injury suffered by the applicant did 
not arise out of and in the courst^ of his employment. Further, I am 
free from any doubt with respect to whether or not the applicant was 
at the time of the injury performing scrvire growing out of and inci- 
dental to his employment. His own tcstimonj' ronvinccs me, beyond 
the peradventurc of a doubt, that he was not. He had left the oflBce 
of his employer. He had no orders to cxeculc. He had no message to 
deliver. He had encountered no situation calling for the exercise of 
any of the duties of his employment. At the specific time of his injury 
he was a free agent. lie w;i,s on his way home. In order to fix liability 
in this case, as of the time of the injury, it is necessary to reach out 
and assemble at the si-ciic of the accident a number of a^tsumptions and 
possibilities of what the injured man might have been called upon to 
do as a part of his contract of employment. The testimony itself does 
not show the presence of any of these circumstances at the time and the 



14 INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 

scene of the accident. I fail to perceive how the injured employee ean 
be held to have been performing service growing out of and incidental 
to his employment at that time and place. Section 12 (a) (2) of the 
Workmen's Compensation, Insurance and Safety Act, as quoted above, 
expressly requires these conditions to concur in order to fix liability. 
IIakris Weinstock, 
Commissioner. 

(No. 18— March 11, 1914.) 

(Chapter ITS, I^wa 1913.) 
UHARI^ES HOLDEN, Applicant, vs. MARYLAND CASUALTV COMPANT (a 

coKPOBATio^ ) . AND PIONEJ^It TETICK COMPANY {a corporation), /)c- 

fendanlt. 
Accident — Bubden of Fbooit — Vabicocele. — Aa appticant for compensation must 

eBtablish to n moral certftinty tb« fact of accideat and that tbe ipjury com- 

plained of was proiimately caused tliereby. Varicocele is rarely caused by 

injury but is a gradual development. 

Applicant claimed that he suffered a strain while lifting, and that 
varicocele resulting, an operation was necessary. Compensation was 
denied for the reason that the proof did not show accidental injury. 
Charles Holdcn, in propria persona, for Applicant. 
V. J. North, agent of Maryland Casualty Company, for Defendants. 

The statute requires that the applicant establish to a moral certainty 
the fact of accident and that the injury was proximately caused by such 
accident. The applicant was unable to do this. Medical and surgical 
opinion is that varicocele is almost never the result of an injury, but is 
a gradual development as in the case of varicose veins in general. 
Therefore, this application for compensation must be denied. 

A. J. PlLLSBURV, 

Wnx J. French, 
Harris Weinstock, 
Commissioners. 



(No. 9— March 20, 1914.) 

(Chapter 176, Lawa 191S.) 

(•irAItLES DKNKEK, Applieant, vs. PACIFIC STEVEDOniNG AND BAL- 
LASTING COMPANY (a cobpoeation), and NEW ENGLAND CASUALTY 

COMPANY Ca cowobailos), Defendants. 
BtTKnEN OF Pbodf. — The burden of proof is upon an applicant to establish his claim 
by a preponderance oE credible testimony. This burden of proof may be dia- 
charged by the testimony of the applicant alone, but such testimony must be of 
Bueh quality as to convince the mind that the applicant has mode bia claim for 
compensation in good faith, and is entitled thereto. 

This was an application for compensation on account of an injury to 
a leg. The facts are stated in the opinion. Compensation was denied 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 15 

for the reason that the claim was not proven to the satisfaction of the 
Commission. 

Charles Denkcr, xn propria persona, for Applicant. 
Barry J. Colding, attorney, for Defendants. 

The applicant in the above entitled ease was employed as a hatch 
tender in the unloading of a ship at the Howard Blinkers in Oakland 
Creek. On January 2, 1914, at or about the close of his day's work, 
he claims to have tripped and fallen over a truck, or some other object 
on the deck of the ship, causing the injury complained of. The testi- 
mony of the applicant is the only testimony given in support of his 
claim. This testimony fends to show that the applicant was the only 
person present on the deck of the ship when he claims to have been 
injured; that it was dark and raining; that he considered the injury 
more or less trivial ; that he reported the injury almost immediately 
to the foreman in charge of the work either on the deck of the ship, or 
on the dock to which she was moored; that he did not mention the 
injurj- to any other person although he met others who were employed 
on the same work with him while going to hi.s train and crossing the 
bay to Sau Francisco; that he visited two saloons and took two drinks, 
one with the foreman, before going home ; that he did not make further 
mention of his injury to the foreman, and that he went directly home 
after leaving the foreman. 

The testimony of the applicant is materially discreditetl by that of 
the foreman, who positively states that the applicant made no mention 
whatever of having suffered injury at any time during the evening of 
January 2, 1914, and that he knew nothing whatever of any claim on 
the part of the applicant that he had suffered the accidental injury 
claimed until some days afterward, although he was told by the appli- 
cant's wife on the morning of January 3d that the applicant was 
unable to report for work by reason of sickness. 

The burden of proof is upon the applicant to establish his claim by 
a preponderance of credible testimony. The testimony of the applicant 
is discredited by the other testimony in the case, to such an extent as 
to persuade the Commission that the applicant has not established his 
claim by the preponderance of credible testimony. 

It is not intended to decide here that a claim for compensation may 
not be established by the testimony of the applicant alone, but that the 
preponderance of the te.-.timony produced to establish a claim for com- 
pensation must consist of tfstimony of such quality as to convince the 
Commission that the applicant has made his claim for compensation 
in good faith. A. J. Piu.sbury, 

Will J. French, 
Habrls Weinstock, 

Cftm.Ttiifunnnnrit^ I,-, 



16 INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 

(No. 10— March 20, 1914.) 
(Chanter ITS, Laws 1913.) 

ritAXK W. GORIXIN. AppHvant. vs. A. EBV and W. T. MUSSELMAN, 

DefendanU. 

CouBSB OF Employment— Service Incidental to Emplotment— Wobkinq Houbs. 
— Wliere tbe quUtiog time varied to aome exionc as the requirements of the 
work oecessitated, aod the employee was injured a few minutes after the regular 
lioup for quilling work, while on the premisea of the emplojer, performing 
servicea of the character he was employed to perform, and believing in good 
f aith that auch services were required of bim, be is entitled to couipensatioD 
f^Tdiaabiiity as Ihe result of the injury suffered by him. 

This was an application for compensation on account of a hand bein^ 
severely burned. The facts are stated in the opinion. Award for tem- 
porary total disability in the sum of $33.76, 

Frank W. Gordon, in person, for Applicant. 

A. Eby and IV, T. Miissclman, in person, for Defendants. 

On the 29th of January, 1914, applicant Frank W. Gordon was in the 
employ of A. Eby and W. T. Miis-selman, partners in the construction of 
fl nickelodeon, the usual hours of labor being from 8 a. m. to 12 o'clock 
m., and from 1 o'clock to 5 p. m., but upon occasion they worked a little 
earlier and later. It was a few minutes after 5 p. m. when Gordon, in 
carrying a bucket of hot tar, struck his foot against a rod causing the 
tar to slop over on his hand, burning it quite severely. Payment of 
compensation was resisted on the ground that the accident was not sus- 
tained while the injured person was performing a service growing out 
of and incidental to his employment and in the course of such employ- 
ment for the reason that it was after 5 o'clock p. ra. when the accident 
happened, and the day 's work was done. 

"We do not think that this defense was sustained by the evidence. 
The quitting time varied as the requirements of the work necessitated. 
No instruetion-s had been given applicant as to the time for starting 
or leaving work, and, whether rightfully or wrongfully, Gordon filled 
an empty bucket wlicn it was lowered from the roof because he thought 
his employer wanted it filled and not for his own purposes. The gen- 
eral rule ill construing compensation laws is that the responsibility of 
the employer begins when his employee enters his premises to perform 
the services rwiiiired of him and terminates when the employee leaves 
such premises, provided that he does not loiter needlessly or arrive at 
an unreasonable hour in advance of the Iwginning of his duties. Gor- 
don's injury was sustained while he was still on the premises of his 
employer and performing a .service which he believed to he required of 



D.gitizecbyG00glc 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 17 

him by his employer and this, we think, distinctly brings him witbin the 
protection of the Worltmen's Compensation, Insurance and Safety Act, 
although he may have remained overtime a few moments in order to 
perform such service. 

A. J. PlLLSBURY, 
Will J. French, 
Harris Weinstock, 
Commissioners. 



{No. 4— March 27, 1914.) 

(Chapter 17G. Laws 1913.) 

A. V. EMMBRT, dppiicaiil, vs. TRUSTEES OF THE PRESTON SCHOOL OF 

INDUSTRY, J. MARCHANT, Secbetart, Defendanlt. 

Accident— Assault — Peace Offices. — While a premeditated simple assault does 
Dot fall within either the commoal? accepted or tbe legal deBnition of accident, 
it is the clear intent of the low that all public peace officore, as public employees, 
are entitled to the beoefitB of the Workmen's CompeosatioD, Insurance and 
Safety Act. where injury or death is suffered incidental to the employment of 
such ofGcer, in the course of his employment, and arising out of his employment, 
and iojury by assault under such circumstances is held to he accidental. 

This is an application for compensation on account of injuries to the 
head and face. The facts are stated in tlie opinion. Award was made 
in the sum of $26.57, together with the expense of medical and surgical 
treatment. 

A. V. Emmert, in propria persona, for Applicant. 

Calvin Derrick, superintendent of Preston School, for Defendants. 

The applicant in this case was a watchman, employed by the Preston 
School of Industry at Waterman, California. It was a part of hi^ 
duties to enforce the rules of the school, including the prevention of the 
escape of inmates. On the night of January 21, 1914, at about 10.30 
o'clock p.m., he was set upon and cruellj' beaten about the face and 
head by three of the inmates of the institution in an effort by them to 
carry out a preconcerted plan to disable the applicant and effect their 
escape. The applicant was seriously but not permanently, disabled 
from earning. 

An important question to be determined in this case is whether or not 
a premeditated assault falls within either the commonly accepted defi- 
nition or the legal definition of accident, as there can be no recovery of 
compensation unless the injury is caused by accident. 

The courts in English speaking jurisdictions, which have had oeca.sion 
to pass npon the same question, are not unanimous. The best con- 
sidered case that has come to our attention is that of Murray vs. Den- 
holm it Co., 5 B. W. C. C. 49fi. decided in the Court of Session of 

-"--"•■'»■• Google 



18 INDUSTRIAL ACCIDENT COMMIt^SION DEasioNS. 

Scotland, July 1, 1911. It was a case of assault by strikers upon work- 
men who had taken their places, in other words, a case of simple assault. 
The court held that the injured workman was not entitled to compensa- 
tion. On the other hand, the courts of (5rcat Britain and Ireland, 
which have been followed by the colonial courts, have extended the 
definition of the word accident to cover assault cases when it is plain 
that the injury is incidental to the employment, is suffered in the course 
of the employment, and arises out of the employment. While, in gen- 
eral, it seems to the Commission that a strict definition of the word 
accident would not admit an assault to be an accident according to the 
common understanding of the word, it is plain that the legislature 
intended that all public peace officers, as public employees, should be 
entitled to the benefits of the compensation law where injury or death 
is suffered incidental to the employment o£ such officer, in the course of 
his employment, and arising out of his employment, and the Com- 
mission holds in deciding this case that such injury or death by assault 
is accidental. A. J, Pilisbuby, 

Wn-L J. French, 
H. Weinstock, 
1 Commissioners. 



(No. n— March 30, 1914.) 

(Chapter 178, LawB 1913.) 
1I.\TTIK It. MARTIN, Appliravl. ys. RI'SSIAN BIVRR FRUIT AND I.,AND 

COMPANY (a corporation), Defendant. 
Farm Labor — Removing Stumps to Ciia\oe Vss. of Land. — Where a tract of land 
wiia preseDtly being operatt^l as a dairy farm, and it was necessary to remove 
old stumps covering a considerable area of the farm in order to change the 
c^liarncter of (he u^c of the land from grazing to fruit raising, the laborers 
employed for such purpose, under such circu ma ta net's, are farm laborers and 
are engaged in farm labor, bo as to be exi^luded from the compenaation provi- 
sions (secliona 12 to 3f>. inclusive) of the Workmen's Compensation. Insurance 
nnd ijafety Act. under the defiuition of "employee" contained in section 14 thereof. 
Fabk Labor — I'sb op Explomiveb — Blastino Stumps. — In determining the elassi- 
ficatJon of employees, as defined in section 14 of the Workmen's Compensation, 
Insurance and Safety Act. it is proper to take into consideration modern progress 
and contemporary methods in industrial pursuits. The use of high explosives 
and power agencies has become, in a large measure, incident to agricultural 
industry. Iltid that the use of blasting powder, under the facta here, waa an 
agricultural use, and the laborers employed in the use thereof were engaged in 
farm labor. 
This was an application by a widow for death benefits. The facts 
are stated in the opinion. The application was dismis-scd for want of 
jurisdiction for the reason that the dccesLswl employee was engaged in 
farm labor at the time of his death. 

T. J. Butts, attfirntiy, for Applicant. 

E. M. Norton and Fred W. McConncU, attorneys, for Defendant. 
The defendant corporation lately pun-hascd an old dairy rancb in 



INDlrSTRIAL ACCIDENT COMMISSION DECISIONS. 19 

Alexander Valley on the RussiaD River in Sonoma County and entered 
upon its transformation into a fruit farm. The entire tract embraces 
about 800 acres, of which between 500 and 600 acres are available for 
cultivation. Years ago the timber had been cut off, mainly for the 
purpose of charcoal burning, but the stumps, hundreds of them, were 
left in the ground. Before the land could be plowed and planted to 
advantage, these stumjis had to be removed. Meantime, the cut-over 
areas had been nsed for grazing purposes. 

On the 7th of January, 19U, one E. E. Martin, a sort of jack-of-all- 
trades or general handy man, undertook, at a wage of $3.00 per day, 
to blow out the stumps with dynamite. It was work that he had been 
doing off and on for years, until finally he had cca-sed to \k afraid of 
dynamite or dynamite caps, and, then'fore, was especially liable to 
injury in such" employment. 

On the 8th of January his helper had prepared a hole under a stump 
and the dynamite had been placed in the hole with fuse attached and 
had been tamped. Martin knelt by the side of the stump to light the 
fuse, a box containing several pounds of dynamite and a number of 
caps being by his side not more than a foot or two from him. He 
lighted a match on the seat of his trousers and an explosion followed 
which blew him to fragments and severely injured his helper. 

Martin's widow, Mrs. Hattie B. Martin, filed her application for the 
death benefits provided under the Workmen's Compensation, Insurance 
and Safety Act. The defendant corporation resisted the claim on the 
grounds that deceased was, at the time of the accident, engaged in 
farm labor and, therefore, was not within the provisions of said act. 
and that, if his work is held not to be farm labor, then Martin was a 
casual laborer and likewise not within the provisions of the act. 

The issue is not ea-;y of determination. No border-line or twilight- 
zone issues are easy of determination, yet they must somehow be deter- 
mined, and, often, somewhat arbitrarily. Counsel on both sides have 
brought forward arguments of great force. It is not often that the 
services of attorneys are necessary to the just determination of issues 
in compensation cases, but in such cases as this, their services in aid 
of the Commission in reaching a eonelusion were of great value and 
heartily appreciated. 

After full discussion and n'flcction the Commission reaches the con- 
clusion that, in this particular instance, the deceased workman was 
performing farm labor, and, therefore, was not within the protection of 
the Workmen's Compensation, Insurance and Safety Act. The ranch 
upon which he was working was not a wilderness, but already a farm, 



D.gitizecbyG00glc 



20 INDUSTRIAL ACCIDENT COU^(I^^SION DECISIONS. 

and it is a matter of common knowledge that dynamite, in common with 
electrical energy, steam power and power generated by the explosive 
force of gasoline and distillate and other oils, has become an incident or 
implement of agricultural industry. 

This Commission is not disposed to interpret the exemption clause in 
the at-t narrowly or grudgingly. We think that the farmers of Cali- 
fornia, as well as their farm laborers, will find themselves better off 
under the protection of the Workmen's Compensation, Insurance and 
Safety Act than under the law of liability in damages based upon negli- 
gence, but that is a matter for them to determine for themselves. Our 
province is to construe the at't in accordance with the purposes which 
the legislature had in view in enacting it, and we think that the legisla- 
ture intended that work of the kind that Martin was doing was to be 
excluded from the compensation provisions of such act. 

Doubtless somewhere between the labor of felling a forest for lumber 
or the chopping off of the timber of a wooded area for sale as cord 
wood, and the planting of such area to grain or orchard, there must be 
a point where labor which, up to that point, could not be classed as 
farm labor, becomes farm labor, and we are inclined to fix that point 
at where the soil itself is being cleared of impediments to agriculture. 

A. J. PiL&BUBY, 

Will J. French, 

Commissioners . 



{No. 35— March 30, 1914.) 

(Chapter 17S, Laws 191S.) 

.M.VNUKI, liARRETTO, ApaJiceut. vs. RUSSIAN lUVER FRHIT AND LAND 

•■ COMPANY, Defendant. 

The applicant in- this oase was injured by an explosion of blasting 
pqjvder, while employed as a helper to E. E. Martin, who lost his life 
while engaged in blasting out stumps on a farm owned by the defend- 
ant. The facts in this 'case relative to the employment are the same as 
in the case of Martin vs. Uiiitxiiin River Fruit ami Land Company 
{supra), which was dismissed for want of jurisdiction for the reason 
that the deceased employee in that ease was engaged in farm labor at 
the time of his accidental death. The decision in that case rules this 
ease. Order of dismissal for want of jurisdiction was accordingly 
entered herein on March 30, 1914. 

" Ira B. Cross, 

Secretary. 



D.gitizecbyG00glc 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 21 

(No. 22— April 1, 1914.) 

(Chapter ITB. Lbwb 1913.) 

ANNIE ELIZABETH GARDINEIt, AppUcont. vs. STATE OF CALIFORNIA 

PRINTING OFFICE, Defcadanl. 

CouiutB OP Emplovuent — GoiN<i AND CouiNQ — LOITERING. — While, as a s^nenil 
rule, compensation will not Ik awarded to an employee accidentally injured when 
on the way to and from tbe place of employment, one entering or leaving aach 
place by the usual route and means provided by the employer for tboae purpoeee 
ia entitled to compensation for accidental injury, except when the employee has 
loitered on the premises, or has not promptly left the premiaes by the usual 
means and route. 

Medical and Subqical Attention — Oppobtunity to Employeb to Fbovide — 
Knowledce of Injury — Request Unnecebsabt. — The law fixes the ohligatiou 
upon the employer to provide npceasary medical and surgical attendance, and 
knowledge of the accidental injury of an employee, and the reasonable oppor- 
tunity given to provide the requisite treatment are sufficient to charge the 
employer ncelecting to provide it with the reasonable expense incurred by ^e 
employee in that behalf. A request by tbe employee for such treatment ia ntft 
required. 

Application for compeDsation on account of a sprained ankle. The 
facts are stated in the opinion. Award was made in the sum of $28.09, 
together with the necessary expense incurred hy the applicant for 
medical and surgical treatment, 

Annie Elizabeih Gardiner, in propria persona, for Applicant. 
Friend IV'm. Richardson, superintendent State Printing Office, for 
Defendant. 

The applicant was in the employ of the State of California in the 
State Printing Office. At the time of her accidental injury, shortly 
after 5 o'clock in the afternoon of January 16, 1914, she had finished 
her day's work and was leaving the premises to go home. While doing 
80, she slipped on the steps leading from the building and suffered a 
sprained ankle. 

"While, as a general rule, compensation will not be award ed t o 
employees accidentally injured while going from work and returni^iw 
work, it is a well established rule that employees entering or leaving 
the premises of employers by the usual route and means furnished for 
that purpose are entitled to compensation for accidental injury. An 
exception to this rule is made in cases where the employee has loitered 
on the premises or has not promptly left the premises by the us^al 
means and route provided. It seems to the Commission that this case 
falls squarely within the established rule, and compensation has there- 
fore been awarded. 

It appears from the testimony that the employer knew almost imme- 
diately of the injury to the applicant, and that the employer had the 
opportunity of providing necessary medical and surgical treatment, but . 



D.gitizecbyG00gL^ 



22 INDtJ^TRIAL ACCIDENT COMMISSION DECISIONS. 

neglected to do so. The obligation to furnish this treatment is fixed by 
section 15(a) of the Workmen's Compensation, Insurance and Safety 
Act. It is not necessary in all cases that the injured employee should 
request the service required. The reasonable opportunity to furnish 
the service upon notice or knowledge of the injury is all that is required, 
and neglect to provide the service gives the injured employee the right 
to engage the service at the expense of the employer in a. reasonable 
amount. The Commission has, therefore, also made an award against 
the employer for the necessary reasonable expense of the medical and 
surgical treatment in this case. 

A. J. PlLLSBURY, 

Will J. French, 
Commissioners. 



(No. 49— April 2, 1914.) 
(Chapter IT6, Laws 1913.) 
JF:SSICA DENNET, .4ppJicofi 

J. A. Hcinebcrg, for Applicant. 
E. L. Stockuu'U, attorney, for Defendant, 
The applicant is the widow of Ivan D. Denney, who was accidentally 
killed on February 23, 1914, while in the employ of the J. G. Williams 
Construction Company at the Panama-Pacific International Exposition 
grounds. The defendant was the in-inirance carrier of the employer, 
and was substitnted as defendant herein, upon its own application. 
The death benefit was $5,000.00, which the applicant asked to have 
commuted to a lump sum payment. 

It appeared to be for the beat interest of the applicant to commute 
the (Icfith benefit payable to her in a lump sum. Pursuant to the pro- 
visions of section 33 of chapter 176 of the Laws of 1913, the Industrial 
Accident Commission ordered the defendant to pay to the applicant the 
present value of said dcatii benefit, to wit: the sum of $4,385.57. 

H. L. White, 
Secretdvii. 

(No. 16— Aprils, 1914.) 

{Chapter 1T«. Laws 1913.) 
.K).SKriI HK-MMKR. Applitaat. \H. ODVAiS CAFI':. and FM)BLITY AND 

DKPOSIT COMPANY OF MARYLAND. t>clnidan<K. 

FlNDiNO OP Fact, — KviilvDce held to sbou- thai Bpiitiroiit's dixaliility was caused by 

utvident as alleged and was not due to a diseasod condition imti.'dating tlie 

ncrcident. 

The facts are .stated in the opinion. An award was made in favor of 

the applicant in the sum of sixty-three dollars ($63.00), this being the 



INDUSTRIAL ACCIDENT COMMI^JRION DECISIONS. 23 

amoimt of six weekly disability paymcDts at the rate of ten dollars and 
fifty cents ($10.50) per week. The defendants were ordered to deduet 
from the award the sum of six dollars and thirty cents ($6.30) and pay 
this Slim to applicant's attorney as a reasonable attorney fee. The 
applicant was aha awarded his reasonable medical and surgical expenses. 
Von Shrader & Cadwalader, attorneys, for Applicant. . 
W. W. Derr, for Defendants. 

Applicant Joseph Bemmer was a bartender in the employ of the 
Odeon Cafe in San FrancJsi^o. He claims that on the night of the 13th 
or 14th of January, 1914, in going through an alleyway, upon one side 
of which were ranged slop and ash barrels and boxes, he stumbled over 
a box and fell, striking his right elbow on the edge of a slop barrel, and 
that, in consequence, he suffered a disability. 

Defendant insurance company resists the payment of a disability 
indemnity on the ground that the injury complained of was not the 
result of an accident, but was the result of a diseased condition of the 
arm antedating the time of the alleged accident, and that said condition 
was aggravated by wrestling, and, consequently, the injury did not in 
any way grow out of the employment. 

The evidence is, as in most cases, somewhat conflicting as to the 
incident, but the medical testimony of itself is determinative of the 
issue. Applicant suffered from a bursa upon the point of the right 
elbow. There was no infection. The bursa could come only by injury 
and, inasmuch as applicant had been in the employ of the defendant 
Odeon Cafe for several months, it is reasonable to presume that the 
atiident happened during the employment. The evidence presented 
did not bear out the charge of injury through wrestling. The account 
of the injury given by applicant was, within itself, reasonable, and was 
generally corroborated by the testimony of otliers to whom he had 
related the eircumstanees, and was consistent with tlie medical testimony 
adduced and information obtained by the Commissioners. Compensa- 
tion is accordingly awarded. 

A. J. Puj-sbury, 
Wn.r, J. French, 
Commissioners. 

(No. 28— April 4, 1914.) 

(Chapter 176, Laws 191 S.) 
TIH(.MAS L. IIRKTI'. Applir, 

Thomas L. Biitl, in propria pirsona, for Applicant. 
('. 0. Collrdl, for Defendant. 
The applicant sufifered a severe injury to his right arm on January .19, 



ary.iy, 



24 INDL'STHIAL ACCIDKNT COUUISSIUN DECISIONK. 

1914, while working on the State Highway in Sonoma County. The 
injury was followed by infection, which existed on March 13, 1914, and 
at the time of the award on April 4, 1914. He was awiirded $80.31, 
compensation for temporary total disability, accrued from February 3, 
1914, to and including April 3, 1914, and the sum of $4.02 a week as 
compensation for temporary partial disability during the continuance 
of such partial disability. He was also awarded the reasonable expenses 
of medical, Hurgical and hospital treatment, the claims therefor 
I>eing subject to approval by the medical director of the Industrial 
Accident Commission. 

H. L. White, 
Secretary. 

(No. 13— April 11, 1914.) 
(Chapter 176, Laws 1913.) 



Edward J. Nolan, attorney, for Applicant, 
J. B. Potfcr, attorney, for Defendant. 
The applicant is the mother of Victor Slaughter, who lost his life in 
u snow slide on January 25, 1914, while emploj'ed by the defendant as 
a caretaker at its Reservoir No. 1, at Sabrina Lake, in the Sierra Nevada 
Mountains in Inyo County. The only question to be determined was 
the extent of the dependency of the applicant upon her deceased son for 
snpport. The evidence showed that he had contributed the sum of 
$10.00 H month to the applicant covering a period of one year prior to 
his death. This amounted to 12^ per cent of his average annual earn- 
ings of $960.00. An award was aiiordingly made and entered in favor 
of the applicant in the total sum of $360.00. payable at the rate of 
$10.00 a month. 

On April 2T^, 1914, the award was commuted to a lump sum payment 
upon the joint application of the parties, the present value of the award 
being $329.4^. 

H. L. White, 
Secretary. 

(No. 96— April 21. 1914.) 

(Chapter 176, Laws 1313.) 
A pplicA 



The applicant is the widow of Silas R. Dumont. who was accidentally 
killed on February 23. 1914, while in the employ of the defendant, 
by being crushed under poles which rolled upon him from a flat car, 

CnOO^^Ic 



INDUSTRIAL ACCIDENT COMMISSION IIKCISIONS, 25 

The claim of the applicHiit for dt-alh tH'iiffits was not resisted. Neither 
did defendant resist her application to have the amount payable to her 
commuted to a lump sum, for which sufficit'iit showing was made. The 
average annual earnings of the deceased employee were fixed at $750.00. 
The applicant was wholly dependent upon her dt«eased husband for 
support. The aggregate amount payable to her as death denefit is fixed 
by law at three times such average annual earnings, or $2,250.00, the 
present value of which was computed at $1,972,77, and an award was 
made for that sum. 

H. L. "White, 
Secretary. 



(No. 6— April 22, 1914.) 
(Chapter 176, Laws 1913.) 
JOHANNA HANSEN, Applicant, vs. J. P. HOLLAND, Defendant. 
&'. T. HngcvoU and Albrtrt Michchon, attorneys, for Applicant. 
L. A. Redman, attorney, for Defendant. 
The applicant is the widow of Albert A. Hansen, who died on Jan- 
uary 17, 1914. The immediate cause of death was pneumonia. Appli- 
cant's decedent had been seriously injured by accident on January 13, 
1914, while in the employ of the defendant. The average annual earn- 
ings of the deeeasetl were $963.00 and the death benefits payable, if 
applicant, &% wholly dependent upon him for support, were entitled 
thereto, would amount to $2,889.00. 

The parties were in doubt as to whether the death of the employee was 
proximately caused by accident or was eansed by the disease, and 
entered into a .settlement agreement providing for the payment by the 
defendant to the applicant of the sum of $1,000.00 in full di.scharge of 
all liability. This agreement was suhniitted to the Industrial Accident 
Commission for approval. 

After full consideration of all the testimony taken, and the reports of 
medical referees, the agreed settlement was approved as a fair and 
rea.sonable compromise for the reason that it was impossible to deter- 
mine whether or not the injury and death arase out of the employment 
and whether death was proximately caused by accident. An award 
of the amount agreed upon ($1.000.(H)) was ordered paid fo the appli- 
cant at the rate of $12.00 a week until paid in full. 

II. L. White, 
Secret aril. 



D.gitizecbyG00glc 



26 INOrSTBIAL ACCIDENT COMMISHION DECISIONS. 

(No. 12— April 22, 1914.) 

(Chapter 1T6, Laws 1913.) 
CATIIKRINE O. RUTH. Applicant, vs. SOnTHERN PACIFIC COMPANY 
(A coBPORATios), Drfcndant. 
"JumsDiCTios ^Railroads — Istbrstate Commibce. — The federal Employers' lia- 
bility Act. apDroved April 22. 11108, as ampinlod April r,. lyiO, dops not ™ver the 
entire field of liability of common cnrriera by railroad for pprsonal injury or 
death by accident, bo as to wholly ptrludc the operation of the state Workmeo'e 
Compensation. Insurance and Safely Act. but la expressly limited in ita scope 
to rases ot injiiriea and death while siirh ironimon carriers arc engaRing in inter- 
Hiale commerce and while the employee is employed in such commerce. The 
Industrial Accident Commission has jurisdiction over cases where the common 
carrier is not engaKing in interstate commerce at the time and place of the acci- 
dent, and the accident does not occur while the employee ia employed in such 



iNTKaSTATK CdMMERCE — INTRAKT.\TK CoMUEBCE — RKFAIBI.NO SWITCH ENOINI 

Where an employiic of a railroad engnged in interstate nnd ii 
Is killed while cngngetl in repairing a switch eneine. the said switch engine 
Wing operated solely within the Stale bnt being used in shifting both inler- 
Klate and intrastate cars, but where at the time of the accident the said engine 
liiiK been withdniwu temporarily from service and the repairs are being made in 
a ronndbouse used exclusively for housing liicomotivea ojierated entirely within 
the stale, such employee at the lime of the accident is not employed in inter- 
stale commerce and the Industrial Ai'cident Commission lias jurisdiction of the 
application of the widow for death benefits. 

This was &n applieation by a widow for death benefits. The facta are 
stated in the opinion. An award was made in the sum of $3,162.36, 
payable in weekly installments of $13.18. 

McruHth rfr LaixUs, attorneys, for Applicant. 

Iloilry C. Booth, attorney, for Defendant. 
The applicant- herein is the widow of Oharle-s B. Ruth, who was aeei- 
deutally killed on January 17, 1914. while employed by the defendant 
as a truck builder and repairer of tnieks for locomotives in its round- 
house No. 1 at Roseville. California. At the time of the accident which 
caused his death, the employee was engaged in repairing a switch engine, 
\o. 1173, in roundhouse \o. 1. which roundhou.se was used by the 
defendant for housing locomotive switch engines operated entirely 
within the State of California, and used by it in its capacity as a com- 
mon carrier in handling both interstate and intrastate eommeree. The 
engine upon which Rnth was working had been withdrawn temporarily 
from service in the operating department of the company on January 
13, 1914. The accident occurred in the motive department over three 
days later. The engine was not n'turned to the operating department 
unfit the morning of January Iflth. two days after the accident. The 
InduHtrial Accident Commission has made the following finding of fact: 
"6. That at the time of the accident the defendant Southern 

Pacific Company was not using said switch engine. No. 1173, in 

interstate commerce, nor whs Ibc deceased employee, at that time, 

employed in such c 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 27 

It was agreed between the parties that the only question to be decided 
in this ease is a question of law, t. e.. whether or not the Industrial Acci- 
dent Commission of the State of California has jurisdiction. The appli- 
cant asserts the jurisdiction and the defendant denies the jurisdiction. 
The defendant takes its position, relyins; upon the federal Employers' 
Liability Act, approved April 22, 1908, as amended April 5, 1910, as 
having fixed the rights of the parties and as excluding the operation of 
the state law under the well established and universally accepted rule 
that the State is excluded from IcKislntinn in the field of interstate oora- 
meree where the subject has been covered by an act of congress passed 
in the exercise of the power reserved to the Federal Government to regu- 
late interstate commerce The act of congress is entitled, "An act relat- 
ing to the liability of common carriers by railroad to their employees in 
certain cases." The pertinent provisions of that law, in the case before 
the Commission, are contained in section 1, as follows; 

"Be it rnaclcd by the sfnaie and house of rfprrsentatives of 
the United States of America in congress assembled, That every 
common carrier by railroad while engaging in commerce between 
any of the several states and territories, • • • shall be liable 
in damages to any person suffering injury u'Jiile he is employed by 
such carrier in snch commerce, or, in ease of the death of such 
employee, to his or her personal representative, for the benefit of 
the surviving widow or husband and children of such employee; 
and, if none, then of such employee's parents; and, if none, then to 
the next of kin dependent upon such employee, for such injury or 
death resulting in whole or in part from the negligence of any of 
the officers, agents, or employees of such carrier, or b.v reason of 
any defect or insufficiency, due to its negligence, in its ears, engines, 
appliances, machinery, track, roadbed, works, boats, wharfs or other 
equipment." 

Section 86 (c) of chapter 176 of the Laws of 1913 of the State of 
California, said statute being the Workmen's Compensation. Insurance 
and Safety Act, under the compen.sation provisions of which claim in 
this case is made, is as follows : 

" (c) This act shall not be construed to apply to employers or 
employments which, according to law, are so engaged in interstate 
commerce as not to be subject to the legislative power of the state 
or to employees injured while they are so engaged, except inasmuch 
as this act may be permitted to apply under the provisions of the 
constitution of the United States or the acts of congress." 

The subsection of Ihe state law here fpioted is the expression of an 
established rule of law. It appears to he entirely consistent with the 
act of congress above quoted; in fact, it appears to have been enacted 
so as to diselaim any jurisdiction over the class of personal injurv ea.'^e.s 
covered by the act of congress and to have been enacted with the con- 
gressional legislation in view. The exclusion sfated in the state law is 

L;oogic 



28 INDrSTRlAI- ACCIDENT COMMISSION DECrSIONS. 

expressed in language very similar to that used in the act of congress 
defining the jurisdiction asserted by it. The State excludes itself under 
two heads. They are: (1) in eases where the employers and the 
employments are so engaged, in interstate commerce as not to be subject 
to the legislative power of the State; and (2) to employees injured 
while the)/ are so engaged. Congress asserts jurisdiction over common 
carriers by railroad nndcr two heads. They are: (1) while engaging 
in commerce between any of the several states, etc. • • " i. e., inter- 
state eommeree; and (2) to any person suffering injury while he is 
employed by such carrier in such commerce. There is a reason in law 
for these expressed limitations. 

The Supreme Court of the United States, construing the first act of 
congr&ss of 1906, covering employers' liability, held said act uncon- 
fititutional, for the reason that it was not limited to employees when 
engaged in interstate eommeree. The court held, however, that it was 
entirely competent for <'ongress to legislate concerning the mutual rights 
and liabilities of master and servant when both are actually engaged in 
interstate commerce: Employers' Liability Cases, 207 U. S. 492; Mon- 
dou vs. Xeu- York, Neiv Haven and Ilartford Railroad Company, 223 
U. S. 1. 

What constitutes interstate commei-ce and what is a regulation of it 
are practical questions to be decided in view of the facts in each case: 
Dozicr vs. Alabama, 218 U. S. 124. 

In the case of the Miclii</an Central Railroad vs. Vrelland, 227 U. S. 
59, the court held that "by this act of congress (April 22, 1908, as 
amended April 5, 1910) congress has undertalten to cover the subject of 
the liability of railroad companies to their employees while engaged in 
interstate commerce." This aasertion of a power which is grante<l in 
exprcs.sed terms miLst supersede all legislation over the same subject by 
the states. It therefore follows that so far as state legislation pre- 
scril)eH the liability of common carriers tur injury to their employees 
while engaged in interstate commerce, the act of congress is paramount 
and exclusive, for the rciison that congress has covered tiie field of lia- 
bility for injuries by railroads engaged in interstate commerce to 
employees while employed by such railroads in such commerce. But 
the field covered by the act of congress is expressly limited to eases of 
injuries by railroads engaged in interstate commerce to employees while 
employed in such eonnncrce. The limitation espresscd followed the 
rule laid down by the Supn-mc Court of Ihe I'nited States in holding 
the first Employers' Liabilify Act {190G) unconstitutional. It seems 
to the Commission that there still remains a broad field to be covered 
by state legislation, and in this field there are a large class of employees 



D.gitizecbyG00glc 



mDUSTKI,\l, ACCIDENT COMMISSION DECISIONS. 29 

and a great many accidental rc-sulting io injury where the liability of 
the employer would be fixed under the state law, that is, where the 
railroad is not engaged in interstate eonimerce at the time and place 
of the injury, and the injury does not owur while the employee is 
employed in such commerce. It has appeared to us that the case under 
consideration is one in which it ia clear that the injury did not occur 
within the terms of section 1 of the act of congress above quoted but 
did occur outside the field covered by that act and in a field where the 
state law ia operative and where this Commission has jurisdiction, 

A, J. PuA,sBURy, 









Will J. French, 








H. Weinstock, 








Commissioners, 


NffTE.— An 

or California 
Atctdent Con 

!i;;:,d^^"'d?^ 


HPpUpatlon for re 
■"for''a%rlc''of rev 

tn time. See InJe 


lieorinB wiia Hied by lie 
■lew. Betdng up wanT. 


fenilnnt in this case on April 29. 
t applied to the Supreme Court 
of JurlHdIcllon In the Industrial 
IS tile state Supreme Court lias 



(No. 42— April 22, 1914.) 
(Chapter 176, Laws 1913.) 

inN CALIFOHNl 

N), Applicant. V 
Defendantt. 

Defendants are the aged parents of Percy PI. "Williama, who was 
accidentally killed on January 19, 1914. while in the employ of the 
applicant corporation, which filed its application for approval of pay- 
ment of death benefits in full, equally to the defendants, as wholly 
dependent upon their deceased son for support. 

The average annual earnings of Percy H. Williams amounted to 
$1,440.00, and the total death benefits payable amounted to $4,320.00, 
which was ordered divided equally between the defendants, to be paid 
to them at the rate of $;i9.00 a month each, less the sum of $187.25, 
which the applicant had advanced for funeral expenses. 

H. L. White, 
Secretary, 



Digitizer byGoOgIc 



30 INDUSTRIAL, ACCIDENT COMMISSION DECISIONS. 

(No. 95— April 22, 1914.) 

(Chapter 178, law* 1913,) 

JOE FISCO, Applicant, va. THE HAZEL GOLD MINING COMPANY (a cobpo- 

BATiOs), Defendant. 

Wii.KirL MiscoNDiJCT— DlsoHEUiENCi: OF ORDERS AKD RULES.— Convincing proof of 

the deliberate, intenHonal violation ot a rule, formulated, bronght to the atten- 

tiou of IbiHu: wlioiii it in di'sirnied to govern, hhiI dilijrenlly enfortod, will establish 

wiifiil miscondnct. An infraction of rules and orders issued and promulgated 

nitli iws form and enforced willi little or no diligence, ivill not pslabiish wilful 

miHconduct as a defense. Evidence considered and held not to show wilful miB- 

conduet. 

This was an application for f-ompciisntion on account of a broken leg. 

The fjii'ts are slatt'd in the opinion. An aivaril was made in the sum 

of $1+5.30, together with the upcftssary and reasonable expense of 

nirdit-al and surgical treatment. 

Joe Fisco, in propria persotta, for Applit-ant. 
Braynanl li- Kimball, attorneys, for Defendant. 
Joe Fisco was employed by the defendant company as a tiraberman 
in its mine at French Gulch, California, on the 8th day of March. 1914. 
On that date he suffered an accidental injury which resulted in the 
frac-ture of the fibula of his left leg. He claimed compensation for the 
temporary total disability caused by the injury. The defendant denied 
liability for compensation, claiming that the injury was proximately 
caused by the wilful misconduct of the applicant in riding on a truck 
loaded with timbers, contrary to rules and orders. 

In the operation of this mine the defendant used a train of cars and 
Inieks, which was moved into the mine by an electric motor. It was 
the practice to place the cars behind the motor and the trucks in front 
of the motor. The trucks were loaded with timbers and other supplies 
used in working the mine. They were usually heavily loaded. On 
account of the condition of the track, the curves in the track and the 
heavy loads carried on the trucks, it sometimes happened that these 
trucks would cram or buckle and one or more of them would leave the 
track. It was not safe to ride on the trucks. The safer place to ride 
into the mine, and that most commonly used by the employees of the 
mine who did ride into it, was on the cars behind the motor. However, 
it appears by the testimony that timbermen employed in the mine did 
occasionally ride in on the trucks, particularly when the trucks were 
loaded with timbers to be used by the timbcnujin riding thereon. There 
was no printed or publishctl rule of the company to forbid this. At 
most there was merely an oral instruction given by the superintendent 
to the motonnan, in charge of the motor, not to permit riding on the 
trucks. This instruction had not been brought generally to the atten- 
tion of the employees of the mine; it liad not been diligently enforced 



IMdustbial accident commission decisions. 31 

and it does not appear that any I'luployee had been reprimanded or 
discharged for an infraction of the rule, if it may be so called. 

The applicant is positive that he never heard of the rule. His testi- 
mony in that respect is cdrroborated by that of other men who had been 
employed at the mine. 

There is a direct conflict in the testimony with reference to what 
happened npon the occasion of this injury. The motornian states posi- 
tively that he ordered the applicant off the truck before the train 
started, calling attention to a rule of the company against riding on the 
trucks. Ilis statement is corroborated by the testimony of the brake- 
man to substantially the same effect. On the other hand, the applicant 
testifies that he did not get on the truck until after the train started, 
and that nothing whatever was said to him by the motorman or any one 
else about riding on the truck. 

Wilful misconduct is a question of fact. It is a matter of affirmative 
defense, and it must be proved by the defendant setting it up by a con- 
vincing preponderance of the testimony. Convincing proof of the 
deliberate, intentional violation of a rule, formulated, brought to the 
attention of those whom it is designed to govern, and diligently enforced, 
will establish wilful misconduct. An infraction of rules and orders 
issued and promulgated with less form and enforced with little or no 
diligence, will not establish the defense. The testimony in this case 
fails far short oE showing that the defendant had even approached this 
standard. The instruction, if any, from the superintendent to the 
motorman was informal and vague, and was given so little currency 
among the employees of the mine that not one witness examined had 
ever heard of it, with the possible exception of the motorman and brake- 
man on the motor. So far from being diligently enforced, the testimony 
shows that any such instruction was repeatedly violated without repri- 
mand or penalty. In this situation it is our opinion that the defense 
was not established, and the award must be entered in favor of the 
applicant. 

A. J. PlLLSBURY, 
"Will J. French, 
Commission e rs. 
filed by IhF licfrniinn) in Huh case on 



{Xo. 15— April 23, 1914.) 
(Chapter 176, Laws 1913.) 
W. A. COI.BMAN. Applicant, vs. GIIILFOT CORNICE WORKS. Defendant. 
Uktiical ani> SrwiicAi: ATTKvnASCE— Notice to Kmpix>yf.r.— .\d employer liavini 
Bcliiai knowlMiiP of llip injury of liifi cintiloypfl in boiinii to furnish iiiiopSHar; 
incdicnl anil Kiiruii-iil hiiciiiIiibc'p. nn<l upon his npgErct or refusal lu do xn, i: 
linblc for tiio rfinBooaldu chaR,'™ ini'nrrod by tLe injured employoe. 



32 INDL'STRI.VL ACCIDENT COMMISSION DECISIONS. 

AVERAtlK A\M!AI. EaRNINOB — KlIPIXlYMBNT FOB I,K8S TUAN FUM, YEAB. — Where 

it uppenrs tlial etn|)loyi>iw of a («rtniu dnHs dn not, ns a nile. put io full time 
tliruiiKhoul tile yenr, and llint it w poHNilile to arrive at an ni.'ciirate %ure 
reiiTCBPntini; nionlhly earnings based uiinn actual earainR)! over a portion of 
(lie year, nveracp aunnal earninsH may be taken aa twelve times such monthly 
carnioBs inslrad of Ibrec hundred times tlie daily wagea. 

This was an appli<'ation for compensation on account of an injury to 
the heel. The facts are stated ib the opinion. An award was made in 
the sum of $49.29 for three and two sevenths weeks disability, together 
with the reasonable expense of necessary medical and surgical attend- 

W. A. Coleman, in propria persona, for Applicant. 

Hugh K. MvKi vUt, attorney, for Defendant. 
"W. A. Coleman, the applicant in this case, in returning from a job 
to the office of his employer, was injured in the heel while going down 
A steep bank. lie did not immediately tell his employer as he regarded 
the injury as slight. He, however, spoke of it to a number of people 
within the next few days, although he was not incapacitated for work 
at that time. Later on, the difficulty became worse and he notified his 
employer of the fact. The employer, however, failed to furnish him 
with medical attendance or to pay him compensation. We think, from 
"the facts, that the applicant suffered an injury in the course of his 
employment, and that the employer had due notice of such injury, and 
should have furnished the necessary surgical attendance and com- 
pensation. 

The applicant in this case was a sheet metal worker who was paid and 
received wages at the rate of five dollars and fifty cents ($5.50) per day. 
The evidence tends to show that sheet metal workers, as a class, do not 
put in full time throughout the year, but, owing to a scarcity of work, 
are usually idle some portion of the year. It was shown that the appli- 
cant in this case, working for his employer for ten months, would earn 
one thousand dollars ($1.000) . at the nitc of one hundred tlollars ($100) 
per month. He had been working for other employers prior to the time 
he entered the employ of the defendant in this ca-se, and we think that 
he can properly be regarded as earning the same amount that he earned 
hy working for the defendant. His anminl average earnings, therefore, 
should be taken as twelve times the one hundred dollars or twelve 
hundred dollars ($1200). We have, therefore, granted the applicant 
fompensation on the bjLsi.s of an average yearly wage of twelve hundred 
dollars ($1200). 

A. J. PiLLSBUKY, 

Wii,i, J. French, 
Commissioners. 



D.gitizecbyG00glc 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 

(No. 17— April 23, 19U.) 

(Chapter 116, Laws 1913.) 

O. II. BIXKLEY AND ANNIE E. BINKLEY, AppUcanit, 
AND STEEL COMPANY (a cobpobation ) . and t 
CLAItANTV CO-MI-ANY, l><-jr«d„iiU. 

Dependency — Extent — Otheb Incoue. — Id fixing the extent o( dependency in cases 
where no particular sum Is regularly paid over by a son who lived with his 
aged parents and was their principal support, and the parents did not look to 
any one else for support, it is proper to lake into consideration all the circnm- 
stances in the conduct of the household, and to have regard to any other source 
of income of the family. 

Average Daily Wages. — Where an employee received $2.50 a day and his board, 
and was engaged ill outside work requiring bis absence from home, it is proper 
to lix his daily wages with reference to the wages received by others in the same 
o<^upation with reference to work at the place of employment and with reference 
to allowances for board while away from the place of employment. 

This was an application for death benefits- by the parents of a 
deceased employee. The issues are stated in the opinion. An award 
of death benefits was made in the sum of $1,980.00, payable in install- 
ments of $11.25 a week. 

Oro. W. <'ai-<!i, attorney, for Applicants. 

W. F. Howard, Frank J. Solt, and T. C. Weigel, for Defendants. 

One Oswald H. Binkley was killed while employed by the Western 
Pipe and Steel Company at Needles, California. The only questions 
involved in this case were the amonnt of the dependency of 0. II. Bink- 
ley and Annie E. Binkley, his parents, upon the deceased, and the 
question of the average weekly earnings upon which to base the pay- 
ment of compensation. 

The facts as shown at the bearing were that the deceased lived with 
his father and mother, wiio were old and unable to work, and that, 
while they took care of the house, their son paid all the expenses of the 
establishment. The father had a small pension which somewhat aflfects 
the dependency of the parents. The son was the bread winner of the 
family and apparently expected to, and did, support his father and 
mother, and did not expect them to look to any one else for their sup- 
port, fnder such a state of facts, we believe that the parents of the 
deceased were nearly, but not quite, wholly dependent upon him for 
support, and have fixed the percentage of his earnings which was 
devoted by deceased to the support of his parents at 73J per cent. 

At the time of the death of the deceased employee, he was receiving 
two dollars and fifty cents f$2.50) per day and his board. lie was 
engaged, however, in outside work that compelled him to be away from 
ha home. The evidence in the ease shows that the men working at the 
o<-eupation of the deceased employee arc paid, while in the city, two 



:i— n^n.i! 



D.gitizecbyG00glc 



31 INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 

dollars and fifty cents ($2,50) to three dollars and twenty-five cents • 
($3.25) per day, and that, when they are compelled to go outside and 
forced to be away from home, they are given a further allowance for 
board. We have therefore fixed the average daily wage of the deceased 
at three dollars ($3) and the average annual earnings at nine hundred 
dollars ($900). 

A. J. PiLLSBURY, 

Will J. French, 
Commissiojiers. 



(No. 20— April 23, 1914.) 
(Chapter 1T6, Laws 1913.) 
G. HA'ITAGIJA. Applicant, vs. A. BUTORI & COMPANY (a 
Defendant. 

0. Battaglia, in propria persona, for Applicant. 
Martin Stevens, attorney, for Defendant. 
This was a claim for compensation on account of a fractured elbow, 
suffered by the applicant by falling from a bicycle January 6, 1914, 
while in the employ of the defendant and while performing services 
incidental to his employment. The resulting temporary total disability 
continued during a period of four and three sevenths weeks, the appli- 
cant returning to work on February 7, 1914. The compensation payable 
was at the rate of $9.00 a week and for a period of two and three 
sevenths weeks, or the sum of $21.86. An award was made for this 
amount, together with the necessary expense of medical and surgical 
treatment in the sum of $31.35. 

H, L, WnrrE, 
Secrelar]/. 

(No. 24— April 24, 1914.) 

(Chapter 1T6. Laws 191S.> 

WILLIAM SUGAR, AppUcajit, vs. ATLAS TAXICAB COMPANY. Defendant. 

Wilful MiacoNimcT — Disobedience of iNSTBUcnoNa to Furtheb Emplotbe's 
INTEBEST. — Where it appears that tbe disobedience of an oral inHtnictioD vaa 
not actuated by wilful desire to dlsobej an order, but by a wish to further the 
emplo}'(!r'B intpreEts, th? misconduct, if any, ia not wilful, so as to defeat a etaim 
for corDpouaation for the disability resulting from the accideatal injury auffeied 
by the employee. 

This was a claim for compensation on account of a broken wrist 
Buffered by tbe applicant while cranking an automobile. An award 
was made in the sum of $49.00. 

William Sugar, in propria persona, for Applicant. 
('has. n. McConanghy, attorney, for Defendant. 
AVilliam Sugar was employed by the Atlas Taxicab Company as a 
washer of automobiles, working lai^ely at night when no one else was 



INDUSTRIAL ACCIDENT COMHIRSION DECISIONS. 35 

present at the garage. The drivers of automobiles were supposed to put 
fars on the washing rack and take them oflf when they (tlie drivers) 
were in the garage. The applicant in this case claimed that he had not 
been instructed never to crank a car, and the defendant claims that he 
had ordered the applicant never to crank a car. On the morning of the 
accident, the applicant desired to change the cars on the washing rack, 
and, there being no chauffeur present at the time, he proceeded to crank 
the car and was injured. Even admitting that instructions were given 
bim not to crank a car, a matter for serious doubt, still we do not think 
that his action in this respect amounteil to such wilful misconduct as 
to bar him from receiving compezisation. He attempted to crank the 
car, it appears, not from a wilful desire to disobey an order, but from a 
wish to further his employer's interests by washing a certain ear in 
order to have it ready in time to go out. Such misconduct, if any, can 
not be construed as "wilful," within the meaning of the act. We 
tliink, therefore, that the applicant is entitled to compensation. 

A. J, PiLLSBURY, 

Will J. French, 
Commissioners.^ 



(No. 64^April 24, 1914.) 

(Chapter 176, hawa 191J.) 

JKSSTK M. RBYNOI.DS, ApiiUoant. vs. A. I. SMITH, and NEW KN(! [..-VNn 
CASUALTY COMPANY (a cobpobation ) , Dcfendantt. 

Gratuities as EAsniNos Upob Which to Base Computation of Ccmpen.sation — 

CoKTBACT OF HiBE. — GraluilieB received by employees incident to the services 

p«rfanned by Ibera are not to be treated as earDiDfcs upon wbich to base a com- 

piiration of compcBBation, unless the contract of hire is made between the 

pmploj'pr and employee wilh reference to sucb gratuities as tbe nbole, or a part, 

of the rcmuDeration to the employee for the performance of tbe services wfaich he 

is engaged to perform. 

This was an application by a widow for death benefits. The facts are 

stated in the opinion. An award was made in the sum of $3,555.72, 

payable at the rate of $65.00 a month. 

Jessie M. Reynolds, in propria persona, for Applicant. 
..4. J. Smith, in propria persona, for Defendant. 
Chester P. Reynolds, the deceased husband of the applicant, was acci- 
dentally killed on Pebrnary 9. 1914, while in the employ of the defend- 
ant, A. I. Smith, as stage hand in the Garrick Theater in the city of 
Stockton. California, 

The defendant. New England Casualty Company, was the insurance 
carrier of the employer. 



D.gitizecbyG00glc 



36 INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 

Claim for the death benefits was made by the applieant as the widow 
of the deceased employee. The claim was not resisted by the defendaDta 
to the extent that it was based upon his reffular salary of twenty-five 
dollars ($25) a week, but the claim for additional death benefits, based 
upon the earnings of said deceased employee, by way of gratuities in the 
form of tips contributed to bira by theatrical performers, was resisted. 

The testimony showed that the deceased employee did receive 
gratnities from performers at the theater in varying amounts; that no 
nccoimt was kept of these amounts, bnt that they would run from two 
dollars and fifty cents ($2.50) to ten dollars ($10) a week; that the 
deceased employee and the applicant used the gratuities in part pay- 
ment of their living expenses, but did not depend upon them as a reg- 
ular source of income; and that the employer did not know, as a matter 
of fact, that the deceased employee received any gratuities. It did not 
appear that the gratuities were taken into consideration by the parties 
when the contract of hire was made. 

The amount of compensation is based upon "earnings." It has been 
held in a number of well considered eases that gratuities are to be 
treated as earnings, and are to be taken into account in computing com- 
pensation payable for disability or death. However, it can not be 
denied that there is room for fraudulent claims, based upon earnings in 
the form of tips or gratuities, and, after full consideration, it has seemed 
best to place a limitation upon claims in this form. Accordingly, it is 
held in this ease that no allowance of death benefits based upon 
gratuities as earnings can be made, for the reason that the contract of 
hire between the deceased employee and his employer did not contem- 
plate gratuities or tips as a part of the earnings of the deceased 
employee. Such gratuities should not be treated as earnings upon 
which to base a computation of compensation unless the contract of hire 
is made between the employer and employee with reference to gratuities 
as the whole, or a part, of the remuneration earned by the employee in 
the performance of the services which he is engaged to perform. 

A. J, PlIJ^BURY, 

Wnj. J. French, 
Commissioners. 



D.gitizecbyG00glc 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 

(No. 45— April 25, 1914.) 

(Chapter ITfl, Lawi WIS.) 



Accidental Injubv — Hebnia — Compensation Limited.— Unless sd employer has 
knowledge of the eiistence of a hernia prior to the happening of ac accident, 
disability awards for hernia, elaioied to result from accident, will be made only 
when the traumatic origin of the hernia is clearly established, and any award 
will be limited to cover tbe cost of operation to cure the hernia and for the dis- 
ability consequent upon such operation, except for such disability as may have 
existed prior lo tbe offer on the part o( the employer or insurance carrier to 
provide for such operation. 

This was a claim for eompensatioD on account of a hernia. The facte 
are stated in the opinion. Compensation was denied for want of proof 
of accidental injury. 

T. C. Vella, for Applicant. 

('. W. Fellowx, manager of the State Compensation Insurance 
Fund, for Defendant. 

One Vincent Mifsud, on his own behalf, testified that on the 21st of 
January, 1914, while washing dishes in the employ of the Palace 
Hotel Company, he slipped and strained himself and suflfered an 
inguinal hernia. He swore positively that he had not suffered from 
hernia before that time, whereas his physician, who subsequently 
operated on him for hernia, te.stified that he had examined Mifsud four 
or five months before the operfition, and before the alleged accident 
complained of, and found that he was then suffering from hernia and 
at that time advised an operation. 

This incident shows why it is necessary for this Commission to view 
every case of hernia, alleged to be the result of accident, with suspicion. 
Indeed, were it not for the fact that the applicant in this ease is unable 
to understand or to spealt the English languaRC, and had to give his 
testimony through an interpreter, we should be strongly tempte<l to 
institute criminal proceedings against him for perjury in swearing that 
he had never had hernia. 

It will l>e rarely, if at all, that an award for disability indemnity will 
be made by this Commi.ssion for injury to a hernia of long standing, 
unless the employer had knowledge of the existence of such hernia prior 
to the happening of the accident. DiaabiHty awards for hernia, result- 
ing from accident, will be made only when the traumatic nature of the 
hernia is clearly established. In such cases the award will he made to 
cover the cost of operation to cure the hernia, and for the disability 
consequent upon such operation, but for no other di.sability except such 
as may have existed prior to tlie offer, on the part of the employer or 
insurance carrier, to provide for such operation. 



::GoO'^lc 



38 INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 

A strict adhprpnt-R to this policy is reqiiisitf, DOt atone to guard 
employers and (heir insurance camera against fraudulent claims, but 
for the protection of honest workmen who do, in fact, suffer a hernia aa 
the result of an industrial accident. 

A. J. PiLLSBUBY, 

WiM, J. French, 
Commissioners. 



(No. 46— April 25, 1914.) 

(Chapter 176, Caws 1313,) 

FRED UEY, Apiilicaiit. vs. PACIFIC COAST CASUALTY COMPANY, anu 

CHAS. C. MOORE & CO., Defendanti. 

I'EBHANENT DlSABILITT DEVF:LOI>lNa AFTtR DECISION BT THE COMMISSION I'bO- 

CEOL'RE oy IwnrsTBiAL Accident Oom mission.— Where aa injured employee 
has been award<>d a temporary total disability indemnity on ai^ount of injnriex 
sustained by him through accident, and after the decision of his case by the 
Commisaion it appears that the injnrics sustained b; him are peruinaent in 
nature and not temiiorary, Ihc findinss and award will be amended after pro|>er 
notice to all parties and opportunity to be beard, to change the liability of tlie 
defendant from that based on temporary disability lo the proper rompenaation 
for the permanent disability shown to e^tiat. The defeDdaut is entitled to have 
•credited to his ait-ount on the ijermanent diaability, all payments he may have 
made upon the basis of the temporary total or partial diaability. 

Fred Hey, in propria persona, for Applicant. 
Dr. C. T. Cutting, medical director of the Pacific Coast Casualty 
Company, for Defendant. 
Applicant was injured on January 1, 1914, in Reclamation District 
lOS, Yolo County, while moving a cable on a sled, his left wrist being 
dislocated and broken. He claimed a temporary total disability, also a 
permanent partial disability. He had recovered sufficiently to be able 
to do some work with his right hand, and the only <|uestioE was as to the 
percentage of partial disability. He was allowed compensation for 
eight weeks' total disability based on average weekly earnings of $21.63, 
amounting to $112.48; also $19.67 for three and one seventh weeks' 
temporary partial disability (his earning power being estimated at 
$12 per week, and his loss of earning power at $9.63 per week) ; 
and also $6.2(5 per week for temporary partial disability during the con- 
tinuance of such partial disability or until the further order of the 
Commission. 

H. L. White, 
Secretary. 

Note. — It sulnaNiuently developlnx that the applirnnt lind sustiilnwl n permanent 
.ii.,.hii>iv, notire was given on SeptembPr 2S, 1B14, that unlvsa causi' be ahown lo the 
y, the flndiiin and award would be amended to make the defendant Unble for 

■■, partial disability, Inati-ad ot for the tempornry dlHublllly prevlou-'- 

irder tu this effect was tlkil by tbe Commission on Oetuber 6. 1914, 



the permanent partial disability. Inatnid ot for the tempor.iry dlHiblllly previously 
dochlnl. An order tu this effect was tlkil by the Commission on Oetuber 6. 1914, — 
renson beini shown to tlw contrary. The applkant wan. by this onler. awarded 



,.„ _ cekly itimihlllty j! 

B dc<tucteil Trom the permanent dlsabilll 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 

(No. 14— April 27, 1914.) 

(Chnpler ITS, Laws 1911.) 



Contract of Rmploymbnt, — The applicant had on aeveral occasioDs been employed 
by the hour by the Federal Tmosfpr Co. On the day of Ihe accident he was 
asked by the driver of one of its anto trucks to go wilh him and BEsist him. ITie 
latter telephoned to the office of the company for permiBsioo to employ the 
applicant, and the applicant atandini; behind him during the convemattoD. uoder- 
Btood that such employment was authorised by the person in charge at the office, 
and accordingly went with auch chauffeur and was injured. Held that such 
employment was at least implied if not expressed in direct terms to the applicant. 

This is an application for compensation for an injury caused by being 
struck under the eye by the crank of an auto truck. The facta appear 
in the opinion. Applicant was allowed $37.38 for 4? weeks' tempo- 
rary total disability ; also the reasonable value of medical and surgieai 
services, not to exceed the sum of $40.00. 

John Gallagher, in propria persona, for Applicant. 
MyiHck (fr Decring, attorneys, for Defendant. 

The applicant, John Gallagher, fre{iuent!y applied at the garage 
of the defendant, Federal Transfer Company, of Ran Francisco, for 
employment as a lumper and had on several occasions been given employ- 
ment at the rate of twenty-five cents ($,25) per hour. On the morning 
of the 8th of January he applied as usual, and one Harrison, chauffeur 
in charge of an auto truck, re(|uested his services to go with him to load 
and unload a load of cement inasmuch as Harrison was ill and unable 
to do the work. At the rei|ueat of Gallagher, Harrison applied to the 
down-town office of the company for permission to employ Gallagher, 
and Gallagher, standing immediately behind him while the conversation 
over the telephone was being conducted, understood and had a right to 
believe that his employment was authorized by the person in charge at 
the down-town office, and accordingly went with Harrison. During the 
trip the automobile stopped, and at Harrison 's re<)ueat Gallagher under- 
took to crank it. The crank flew up and struck him under the eye 
causing a slight wound which afterwards, becoming infected, resulted 
in a very serious abscess and disability continuing for several weeks. 
There was a conflict of testimony as to whether or not Gallagher was 
actually employed by the Federal Transfer Company, but, in view of 
all the circumstances, this Commission is of the opinion that Gallagher 
had a right to assume and believe that be was in the employ of the 
Federal Transfer Company, and that such employment was at least 
implied if not expressed in direct terms to Gallagher himself. We are, 
therefore, of the opinion that the compensation asked for should be paid. 

A. J. PiLLSBUKY, 

Will J. French, 
Commissioner si C 



40 INDUSTRIAL ACCIDENT COMMIt'SlON DECISIONS. 

(No. 8— April 28, 1914.) 

(Chapter 176, Lnwe I»13.) 
ROBERT C. BROWN, Applicant, vb. BOCA MILLS COMPANY. Defendant. 
Mack cC' Green, attorneys, for Applicant. 
B. J. Colditiff, attorney, for Defendant. 
This is an application for compensation for an izgiiry to applicant 
caused liy falling, while acting as a waiter on January 28, IIIH, at 
Boca, California, and dislocating and fracturing his thumb. The 
defendant furnished medical attendance to the applicant, but it denied 
liability for compensation on account of his intoxication and wilful 
■ misconduct. The Commission found that the injury was caused by the 
applicant's intoxication, and denied him compensation, 

H. Xj. White, 
Secretary. 

(No. 44— April 28, 1914.) 
(Chnpter ITS, Laws 131S.) 
JOHN SVENDSEN, AppUiaat, vh. DOLLAR STKAMSIIII' LINE, Defendant. 
F. R. Wall, attorney, for Applicant. 
Irving H. Frank, atlorney, for Defendant. 
The applicant claimed to have been injured by having a sack of grain 
fall upon him while loading freight on board the steamer Stanley Dollar 
at Portland, Oregon, on February 4, 1914. Held that the evidence was 
insufficient to show that an accident had happened to applicant; that it 
tended to show that the disability complained of was the result of disease 
and was not proximately caused by acciilent. 

H. li. White, 
Sccrclary. 



(No. 72— April 28, 1914.) 

(Ch.ir>l*r 176, Ijiwa 1913.) 
b. <■. VAN VOKCK, ApiiUraiit. vj*. ItlCIIAItllSO.V ItAKINC COMI'ANY. and 
EMPLOYERS' LIABILITY ASSURANCE CORPORATION, Limited, De- 

F. C. Van Vone, in propria persona, for Applicant. 

//. C. Huutitigion, attorney, for Uefenilanls. 
This is an applicati(m for eoinpensiition for an injury to applicant's 
foot caused by Ix^ing kicked by a horse in Los Angeles, California, on 
February 16, 1914, Applicant worked for two weeks thereafter and 



D.gitizecbyG00glc 



INDUHTRIAI. ACCIDENT COMMISSION DECISIONS, 41 

was then forced to cease on account of the injury. He was offered 
another positioii but was unable to accept it because of his injury. 

The Commission awarded applicant compensation for two weeks 
temporary disability amounting to $23.70, but denied that he was 
entitled to payment for medical and surgical services, other than those 
furnished by the defendants, inasmuch as the latter were not requested 
or afforded opportunity to furnish them. 

H. L. White, 
Secretary. 

(No. 84— April 28, 1914.) 

{ClulpWr 176. Lbiwb 1913.) 

E. V. LOUGH, Applicant, vs. STANDARD OIL COMPANY. Defendant. 

Di8ABir,iTT^WnAT Constiti;te8^Waitino I'ebiod. — Comiiensntion is allowed only 
for disBbility, ami H miist be sucb as preveotB the injured person fro[D workioK. 
Discharge for lack of work does not constitute disability. DiKaMlitr must con- 
tinue for more Ihau fourteen days to entitle apylicaDt lo compensation. 

This is an application for compensation on account of ribs broken 
while running a plow. The facts are stated in the opinion. Compensa- 
tion was denied. 

E. V. Lough, in propria persona, for Applicant. 
K. J. Dillon, attorney, for Defendant. 

On or about the second day of January, 1914, E. V. Lough, the 
applicant herein, was in the employ of the Standard Oil Company, at 
the Murphy Lease, near La Habra, California, and was injured while 
holding a heavy plow working in heavy ground, and hauled by six 
mules. The handle of the plow struck the applicant in the chest and 
fractured two or three ribs in the upper part of the chest. A¥ith a 
larger degree of fortitude than of discretion, the applicant continued 
to work without intermission until the 17th day of January, when, at 
the su^estion of one of his superiors, he was taken to Doctor Davis, 
at Brea, for treatment. He returned to work on the 28th of January, 
and continued to work until the first day of March, when, with others, 
he was discharged, on account of the work, upon which he was engaged, 
having been completed. It is apparent, from the evidence, that during 
the whole of this time, from January 2d, the date of the injury, until 
March 1st, the date of his discharge, the applicant was in poor condition 
to perform the work that he was performing, but he nevertheless per- 
formed it to the satisfaction of his employers, and witiiout making 
complaint to his superiors of his inability to work. On the second day 
of March he called upon Doctor T. G. Devitt, of Los Angeles, who 



D.gitizecbyG00glc 



42 INDUSTBIAIi ACCIDENT COMMISSION DECTSIONS. 

found symptoms of traumatic pneumonia, but, according to Doctor 
Devitt's testimony, his symptoms had passed away within two weeks 
from the time of examination. On the 24th day of March, applicant 
was examined by Doctor H. A, Johnston, of Anaheim, California, who 
found that the fractured ribs had entirely healed, that the alignment 
was practically perfect, and that there were no symptoms at that time 
of traumatic or other pneumonia. All the objective symptoms were 
normal. The applicant remained under Doctor Johnston's observation 
from the 24th day of March to the 29th, when he was discharged as fit 
for duty. 

Applicant freely admits that no claim for compensation would have 
been made if the defendant corporation had kept him in its employ, but 
that at the time of his being discharged from service, he was not in such 
physical condition as would enable him to secure employment with some 
other employer, and he felt that the company owed it to him, in view of 
his circumstances, to furnish him employment that he could follow until 
he should have fully recovered his normal health. With this contention, 
this Commission entirely agrees, but unfortunately for the applicant, 
this Commission has no power to require any employer to furnish 
employment to an injured employee, who is out of health by reason of 
an injury. At no time after the accident, and before this hearing, was 
it shown that applicant suffered any disability to do the work of a 
common laborer for any period of time as long as fourteen days, the 
waiting period provided for in the Workmen's Compensation, Insurance 
and Safety Act. Compensation under this act is allowable only for 
disability, and the disability of the laborer must be such as prevents the 
injured person from laboring. We think that if at the time of the 
accident, applicant had ceased to work, and had gone to the hospital for 
treatment, the facts would have abundantly waiTanted such a proceed- 
ing on his part, but, inasmuch as he had the grit to go on, notwith- 
standing his injury, and do his work, there was no basis of claim on 
account of such injury, nor was there after the first of March, when 
he was finally discharged, for he himself says that he did not quit on 
account of the injury but on account of being discharged, and that 
he would have continued to work if work had been furnished him. 
Notwithstanding the undoubted hardship which the applicant suffered, 
we can find in the evidence no justification for awarding a disability 
indemnity in this ease. 

A. J. PlLLSBURY, 
WiLi, J. French, 
Harris Wei n stock, 

Commissioners. 



D.gitizecbyG00glc 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 

(No. 88— April 29, 1914.) 
(Chapter 1T«, Laws 19IS.) 



KxTG.NT or Disability — W&itino PeBiOD. — No compensation Is allowed where Ibe 
disability, caused by an initiry. does not last more than fourteen days, or where 
a medical examination show's that the inconvenience caused by tbe injury does nol 
prevent the applicant from following his occupation. 

This was an application for compensation for a burned hand. The 
facts arc stated in the opinion. Compensation was denied. 
Edwin. M. Stanley, attorney, for Applicant. 
B. G. Wills, attorney, for Defendants. 

On or about the second day of March, one Jim Kagaroflf was pain- 
fully, rather than severely, burned by a "flare-baek" in the gas plant 
of the Southern California Gas Company at Los Angeles. He was at 
once sent to a hospital and so well attended that he was back and at 
work in ten days from the time of his injury, but inasmuch as the aun 
irritated his tender skin he desired night work instead of day work, 
which was given him. However, after throe nights, he was discharged 
on one pretext or another by his foreman, whereupon he made com- 
plaint of ill treatment at the hands of his employer or some of his 
employer's representatives, and this proceeding was instituted. 

In the course of the investigation made by the employer, it was ascer- 
tained that Kagaroff had paid the foreman and a go-between, forty 
dollars ($40.00) for his day job and that a further demand had been 
made upon him to pay thirty dollars ($30.00) additional for his night 
job, against the payment of which he rebelled. 

To the credit of the Southern California Ga-* Company, be it said, 
that it made a thorough investigation into the facts, discharged from its 
eei-vice all who were in any way implicated in this "hold-up" proceed- 
ing, and compelled restitution of various sums obtained from employees 
in that way. They should have gone farther and prosecuted the rascals 
for extortion. 

This incident is introduced in this opinion, not so much because of 
any immediate bearing which it may have upon the issues involved, but 
as a note of warning to employers, who have in their employ persons 
unacquainted with our language, to be watchful that no such villainy 
flnds entrance into their relations to their employees. It is bound to 
make trouble if it does. 

Uufortiinalely for Kaganiff. so far as any further indemnity on 
account of the injury complained of is concerned, an impartial medical 
examination dis<'losed nothing in his condition that justifies the claim 
of disability. Whatever iiieoiiveiiience he may suffer in conse<(uence 



Google 



44 INDl'STRIAL ACCIDENT COMMIi^SIDN DECISIONS. 

of his injury is too slight to prevent his following his occupation as a 
commoD laborer. Hence our refusal to award a disability indemnity in 



this case. 



A. J. PiLLSBUBY, 

Will J, French, 

Commissioners. 



(No. 6&— May 1, 1914.) 

(Chapter ITS, Lans 191S.) 

IGNACIO LERA. Applit^nt, vs. FAIRCHlLD-GILMORE-WILTON COMPANY, 

Defendant. 

CoUBHB OK IOmployuent — INJURY BY VEUicf.Es IN CiTY STREETS. — An injury to 
a workinmi caused by bi'iug run down by a vehicle while reiiajrini; or puttint; 
down pavements is one inherent in the occupation and growing out of the 

This is an application for compensation for an injury to the foot. 
The faots are stated in the opinion. An award was made of $75.96 
for nine weeks' temporarj' total disability. Medical and surgical services 
were supplied to the applicant by the defendant. 
Ediiiii ^f. Staiilfij, attorney, for Applicant. 
BrnduPr ^Y. Lcc, attorney, for Defendant. 

Ygnacio Lera was, on the 3d of March, working in the streets of Los 
Angeles, in repairing pavement, when an auto truck came suddenly 
.upon him, and knocked him down, and ran over his feet, causing severe 
laceration and bruising of the fleshy parts, but without fracture of 
bones, or serious tearing of tendons. The only i.ssues involved in the 
controversy are as to the nature and extent of the disability, and the 
jurisdiction of this Commission, The jurisdictiimal issue relates to 
whether or not being injured by an auto truck not in the employ of the 
defendants eould be said to arise out of, and happen in the course of, 
the employment. The medical evidence offered was sufficient to make 
it extremely probable that the applicant will not have entirely recovered 
the use of his feet and ankles before the 2()th of May, 1914, but it is 
reasonable to antieijiate that he will have recovered by that time. 

AVe think that the risks of being run over by vehicles while repairing 
or pnttinsr down pavements are in cxt-ess of tbc risks which the common 
citizenship riuis in going fnmi place to place along the streets of a city, 
and that such risks may rea.sonably be regardetl iis inherent in the occu- 
pation. Injuries sustained by -such employees in such manner are 
therefore to be reirarded as growing out of an eui|>loyment, and con- 
sequently bring such injured per.sotis within the jurisdiction of the 



D.gitizecbyG00glc 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 45 

Workmen's Compensation, Insurance and Safety Act and the Industrial 
Accident Commission of the State of California. 

A. J. PiLLSBURY, 

Will J. French, 
Commissioners. 



(No. 69— May 1, 1914.) 

(Ghnptpr ITS. Lows IBIS.) 

F. J. KOLLMK, Appliraul. vm. J. n. I..\NKKIISIIIM, a\» FIDKI.ITY .^NO 

CASUALTY COMPANY OF NEW YORK, Dcfeadante. 

Mriiicai. Advice. — Certnin iasiips nrp for modienl prnclitioners lo detcrmiuc. and lli(> 
Commission must rely upon their b^st judgment and acienCiflc knowledge. 

Tbacmatic NBrnosis.— WlieTe an cmployeo repeives a blow on the bead, eausing 
no apparent aerious injur.v, but from wliicii injury results a sincere belief 
on his part that he ia incurably injured, which belief incapacitates him for 
worli, be is entitled to compensation until his mental balance is regained. 

This is an applieation for compensation for injury caused by being 
struck on the head by a falling board. The facts are stated in the 
opinion. Compensation in the sum of $195.00 was allowed for thirteen 
weeks of temporary total disability. 

Adolphe Danziger, attorney, for Applicant,. 

James B. Aruotd, attorney, for Defendants. 
On the 31st day of Januarj'. 1914. the applicant herein, F. J. Rollnik, 
an experienced painter and decorator, while in the employ of J. B. 
Lankershim, of Loa Angeles, undertook, with others, to move a high 
trestle or staginf^. when, in some manner, a 1 xl2 board 15' 6" in 
length fell from the top of the staging, one end striking the floor and 
the other end striking Rollnik on the crown of his head. A severe gashV 
was made in the scalp, and he was stunned by the force of the blow, but I' 
his skull was not fractured. There was little or no concussion of the' 
brain. Expert medical and surgical testimony, however, clearly estab- 
lishes the fact that from the result of the accident, applicant suffered 
traumatic neurosis; that is. he fancied he was perhaps incurably and 
almost hopelessly in.jured. The event preyed upon his mind and in- 
capacitated him for work. His symptoms at the time of the hearing 
were altogether subjective, and not at all objective, so far as expert 
surgeons and physicians could determine. Nevertheless, the injury 
was as real to him as though his skull had been fractured, or if he had 
suti'ered concussion of the brain, or if he had been, as he imagined, 
seriously, if not permanently, injured. He was not, as his employers 
supposed, consciously malingering or simulating, and it was necessary 
to give him a little further time in which to regain his mental balance 
and normal hopefulness of spirit. We think that he should regain such 



46 INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 

balance and be able to return to work by the 17th of May, a period of 
thirteen weeks from the date of his injury, and perhaps nothing will 
more contribute to that desirable result than to have this issue of eoni- 
pensatiou determined once and for all. We are guided in this by what 
we regard as exceptionally valuable and expert medical and surgical 
advice. 

Such issues are for medical men to determine, and upon their best 
jiiilgnient and scientific knowledire this Commiiwion must wholly n'ly, 
A. J. P1LI.SB1IKY, 
Wii^ J. French, 
CommissiiDirrs. 



(No. :I0— .May 2, Jfll4.) 

(CliaiJter 176. Laws 1913.) 

THOMAS J. SPEXCEU, Applicaut, vs. A. POWD. Defendant. 

C0LR8E OF Empix>ymknt — KviDE-NiK — ^BUBREN OF PROOF. — The biirdpn of proof is 
upon the applicant to show by a preponderance of tbe evidence that the injury 
was sustained while he wes performing aervJce ariaiog out of nnd incidental to 
hiB employment. Evidpncc held insufficient to establish this fact 

This is an application for compensation for the spraining of an ankle 
and the fracturing of two ribs. The facts are stated in the opinion. 
Compensation was denied. 

Thomas J. Spcnn-.r, in propria pir.wna, for Applicant. 
Charlca Del Hondio, attorney, for Defendant. 

The applicant in this case, Thomas J. Spencer, is, by trade, an auto- 
mobile machinist when he can get such work to do. When he can not, 
he works at such other employment as he can find. During the after- 
noon of January 22, 1914, he worked for defendant Dowd in unloading 
a car of Ford automobiles at Taft, in Kern County, California. Shortly 
after five o'clock, he wis paid two dollars ($2.00) for his work. Up to 
this point the testimony is in full agreement. From this point on the 
testimony is in substantial disagreement. Speneer declares that after 
he and Dowd had taken a glass or two of beer together, Dowd requested 
Rpencer to come to the storcn)om after supper and help set np an 
automobile. Tins Dowd positively denies. Spencer says that he was 
to call at Ed Dowd's garage and get some tools to be used at the store- 
room, and that Dowd passed by his brother's garage on the way to the 
storeroom and assisted Spencer in bringing over the tools. Dowd 
declares that nothiuo: of the kind transpired, and that all the tools 
re<iuired to be used iu setting np automobiles were already in the store- 
room and were etmstantly kept there. Dowd admits that Speneer came 
into Ihc storeroom during the evening and "monkeyed" around, doing 



Goo^^lc 



INDUSfRl.VL ACCIDENT COMMISSION DECISIONS. 47 

a little work he ivas not asked to do, but that, being under the influence 
of liquor, he did little else than to talk volubly and incessantly. 

The accident happened at the garage of Ed Dowd. The time was 
about 6.30 p. ni., when it was quite dark and the garage waa badly 
lighted. In stepping around a machine upon which Dr. G. K. Johnston 
and Ed Dowd had been working, and by the side of which Dr. Johnston 
was standing, Spencer stepped off into a pit over five feet in depth, 
resulting in the spraining of one of applicant's ankles and the frac- 
turing of two ribs, causing a temporary total disability lasting in excess 
of three weeks. 

There is no issue as to how the accident happened. The main issue 
is as to whether or not Spencer waa in the employ of A, Dowd at the 
time the accident happened. Spencer affirms that he was; Dowd affirms 
that he was not, and the evidence is diametrically opposed and, on one 
side or other, dishonest. In such cases it is diflScult for the Commission 
to determine the issue with satisfaction to itself or to the parties to the 
proceeding. 

However, the law places upon the applicant the onus of proving, by at 
least a preponderance of evidence, that the injury was sustained while 
the applicant was performing service arising out of and incidental to 
his employment. We think that Mr. Spencer has not done this, and for 
the reasons following ; 

(1) The accident happened at Ed Dowd's garage and not at defend- 
ant A. Dowd's storeroom, 

(2) If applicant was in the employ of defendant A. Dowd at that 
time it was that he might procure tools at the garage of Ed Dowd and 
take thcra over to A. Dowd's storeroom to be used that evening, but, 
according to the testimony of Dr. G, K. Johnston— the only person on the 
premises at the time except Spencer — Spencer fell into the pit while 
advancing toward Johnston and talking to him and not while getting or 
seeking to get the tools he alleges that his employer wanted him to get. 
If so, the injury did not arise out of or happen in the eonrse of the 
employment. 

(3) A. Dowd testified unequivocally that he did not ask Spencer to 
come back that evening, that he did not ask him to fetch tools from the 
garage of Ed Dowd to his own storeroom, that he himself did not help to 
fetch such toitls, and that no such tools were in fact brought. 

(4) Ed Dowd, owner of the garage, testified that Spencer said 
nothing to him about wishing to take tools from his garage to his 
brother's storeroom, that if any were taken he knew nothing of it, and 
that it was not customary so to take tools from his garage to his brother's 
storeroom , 

Against the testimony of these three witnesses, we have only the un- 
supported statement of Spencer himself, and it is manifest that, whether 



48 INDUSTRIAL ACCIDENT COMMIl^SION DECISIONS. 

rightly or wrougly, tli«? prepondcrniK^f of evidence is against the appli- 
cant, and this Coniniission has no choice except to find against him. 

If the aceident had happened at tlie storeroom, instead of at the 
garage, the employment of Spencer might, perhaps, have been legit- 
imately inferred as being implied, hut happening, as it did. at a garagt! 
belonging to another man, the pi-esumption is against and not in favor 
of such employment at that particular instant of time. 

The defense of intoxication had little or nothing to snpport it. 

A. J. PlLKSBrRY, 

AVlLL J. Fkencii, 

VommisKiottf rx. 

(X„. 38— Jlay +. li)14.) 

(Cliiipter ITS. Laws 1813.) 

IVAU ('. liJO!tKUINI>, .l,.,ifi.««(. VR. ('. i:. I,IX>Vn. ANl> STATK TOM- 

I'KNSATION l.NSl'l{AN<'K FIND. />./., i./<i»/-. 

O. W. Hoiiyc, attorney, for Applicant. 

W. L. McConiicll. assistant manager of the State Compensation 
Insurance Fund, for Defendants. 
This is an application to determine the amount of compensation due 
the applicant on account of a permanent partial disability, he being 
dissatisfied with the amonnt offered by the State Compensation Insur- 
ance Fund, the insurance carrier. Applicant is a oabinetmaker. ased 2G 
years. As a result of an industrial aceident he lost the index finger at 
the middle joint, and the middle and ring fingers at the proximal joint, 
and suffered a peniiauent stiffness of the little finger of the left hand. 
He was allowed $10.69 per week (being 6,i per cent of his average 
weekly earnings) for sixty-six weeks; also the reasonable value of the 
medical and surgical services rendered him, the bills for the same to be 
first approved by the medical director of the Industrial Accident Com- 
mission. 

H. L. White, 
Secretary. 

{No. 70— Way 4, 1914.) 

(Cliiipler 17fi, Lnws 1913.1 
MRS. 3. E, SEXTON. HENRY ALOXZO SEXTON, RALPH LAWRENCE 
SKXTON AND EUGENE MAHVIN SEXTON. Applk-anli. vs. MASSA- 
CmSKTTS HONIUNC; AND INSritANCK COMPANY, ANli TWO BOYtJ 
OIL COMPANY, Dffendaati. 

Dependents — Woman Occcptibo Illicit BEf-»TioNsnip — Iixeoitiuatb Chil- 
UREN. — A woman living wilh a man in nn illicit relationship can not be r^arded 

children of the pair. living with the father, and depondont upon him for support, 



INDUSTRIAL ACCIDENT COMMIf^SION DECISIONS. 



This is an application for death benefits liy illegitimate children and 
their mother. The accident occurred in Los Angeles, February 13, 1914, 
and death resulted February 23, 1914. The other facts are stated in 
the opinion. Au award of three years ' earnings, amounting to !|)2.250.00, 
was made, payable in the following manner : $459.98 in cash (being the 
present worth of the last fifty-nine weekly payments of $9.37 each), 
and $9.37 per week for one hundred eighty-one weeks, payable monthly 
at the option of the insurance carrier. 

Frank P. Dohcrty, attorney, for Applicants. 
H. W. Kidd, attorney, for Defendants. 

Something more than thirteen years before the beginning of this pro- 
ceeding, one Julia Elizabeth Marvin became a member of the family of 
Henry T. and Terese Sexton, his wife, in a middle western state. She 
was at that time seventeen years of age, and Sexton was fifty-two. The 
wife, Terese Sexton, was in poor health, and the two, much to the dis- 
appointment of Henry T. Sexton, now deceased, had never had any 
children. Said Henry T. Sexton and the girl, Julia Elizabeth Marvin, 
became unduly intimate, with the result that it became apparent that 
she was about to become a mother, whereupon Henry T. Sexton declared 
that he would cling to his child. He and Julia Elizabeth Marvin then 
came to California as husband and wife, and took up their residence in 
Los Angeles. He never secured a divorce from his wife Terese, because 
he had no legal right to obtain a divorce, and she never sought a divorce 
from him because she cherished enmity to the two because of their mis- 
conduct. During the twelve years or so of their residence in California 
as husband and wife, Henry T. Sexton and Julia Elizabeth Marvin had 
bom to them two other children, thus having three sons. On or about 
the 13th of February, 1914, Heni-y T. Sexton was- so seriously injured 
that on the 23d instant, after an operation, he died, without regaining 
consciousness. Hearing of bis death, Mrs. Terese Sexton came at once 
to Los Angeles, ascertained the condition of dependency of the family, 
and promptly waived any rights that she might have had as a bene- 
ficiary under the Workmen's Compensation, Insurance and Safety Act. 
In fart, she became reconciled to Julia Elizabeth Marvin, and rendered 
what service she could to enable her to obtain the death benefit provided 
by the law in such cases. 

The only issue involved in this ease is as to who the dependents are. 
In our opinion, Julia J^lizabeth Marvin can not be regarded as a depend- 
ent within' the meaning of the act, because she was not the wife of 
Henry T. Sexton, deceased, nor a member of his family, in the common 
acceptance of the term "family." However, there is no question that 



50 INDUSTBIAL ACCIDENT COMMISSION DECKIONS. 

the sons of Julia Elizabeth Marvin and Henry T. Sexton, deceased, 
namely, ITenry Alonzo Sexton, Ralph Lawrence Sexton, and Eugene 
Marvin Sexton, were wholly dependent upon said Henry T. Sexton for 
support. It is the opinion of this Commission tliat Julia Elizabeth 
Marvin, commonly known as Julia Elizabeth Sexton, being the mother 
of these children, is a proper person to be appointed trustee for handling 
the death benefit payable to such minor children, and therefore this 
award is made to said Julia Elizabeth Marvin, as such trustee. 

A. J. PlIJ^BllRY, 

Will J. French, 
Commissioners. 



(No. 73— May 4, 1914.} 

(Chapter 176. Laws 1913.) 



Frank J. Salt, claim adjuster, for Applicant. 

Adam Thompson, attorney, for Defendant, 
The defendant suffered a tight inguinal hernia, also a "T" fracture 
of the tibia, as a result of being kicked by a horse on January 10, 1914, 
while he was employed by the Club Stables of San Diego. The insur- 
ance carrier for the employer made the application in order to have 
the amount of compensation determined. At the time of the hearing 
an operation had not been performed for the hernia, and the leg was 
not yet well. The defendant was allowed compensation of $9.75 per 
week up to the time of the hearing, amounting to $112.82, and $9.75 
per week thereafter during the disability resulting from the injury to 
the leg ; also the cost of surgical and hospital treatment necessary for an 
operation to cure the hernia, together with a temporary total disability 
indemnity while disabled by reason of said operation, the applicant to 
submit to the operation within a reasonable time, 

H. L. White, 
Secretary. 

(No. 76— May 4, 1914.) 
{Chapter 176, Laws 1913.) 
W. M. SWAKT, Appliranl. vh. PANAMA C'AI,lFOUNIA KXI'OSITION COM- 
PANY. AND MAICYLAND CASUALTY COMPANY (a cokpobation ) , 
Diffiidaaln. 

FisiUNU OF Fact.— ■EvideQ<-e of mpdical witnexiwH hsid t 
uf the a|)pli<^nt was diiE to nn obscure and uuusual ct 
iiut to auy U(-<'i<lonl. 

The facts are stated in the opinion. The condition of the applicant 



INDUSTBIAI. ACCtDBNT COMMISSION DECISIONS. 51 

was diagnosed by the attending physician as Meniere's disease, which 
is not caused by accident. Compensation was denied. 
6'. H. Van Wiggle, attorney, for Applicant. 

V. G. North, manager of Soiithern California Claims Division, 
for defendant Maryland Casualty Company. 

Applicant, W. M. Swart, was at work upon the Exposition pounds 
at San Diego, on the 9th day of February, 1914, engaged in knocking 
off some sheathing with a hammer as high as he could reach. All at 
once he felt something give away in his head, and he dropped down 
on the floor off the scaffolding. The fall of only two feet did not hurt 
him, hut he felt sick at his stomach, and speedily became wet with 
sweat, and for a little while he could not stand without holding on to 
something. 

A half hour later he went down the ladder to the ground floor, 
and reported his condition to the leading man. He went to the hos- 
pital and to the hospital doctor, and was examined by a number of 
physicians and treated by some of them, up to the time of this hear- 
ing. At the time of the hearing, he professed being no better than he 
was eight weeks before; that at times he gets sick at his stomach, 
and dizzy, and stagers as if drunk, and it puzzles him to stand when 
he gets on his feet. lie had been in bed a good part of the time, and 
complained of pain ini back and the right side of his head and his ear. 
He complained of deafness in his right ear, and that the sight iu his 
right eye was affected, sometimes causing him to have double vision. 

Testimony in regard to his case, of several reputable and competent 
physicians and surgeons, was takett at the hearing, hut this evidence 
did not show that the ailments complained of were, in any proper 
sense, the result of any injury, but rather of an obscure and unusual 
disease; that a greater part of the symptoms were clearly subjective, 
and that the disease, if any, is not as serious as applicant imagines it 
to be; in short, that he is suffeiing more from neurosis than from 
anything else. 

In such matters this Commission must be guided by the best medical 
and surgical advice obtainable, and the concensus of expert opinion is 
that, whatever may be his disability, it was not the result of any acci- 
dent within the meaning of the Workmen's Compensation, Insurance 
and Safety Act. 

A. J. PlLLSBUKY, 

WiLi- J. French, 
Commissioners. 

NOTK, — A rfhpjirlnd of UiP flntlliMts and awanl In this cnap was applietl for on Miiv 
IB, 1914, on the ground that the appUcant had further evidence to produce which 
could not by ri-;isonahle dtUKcncc Imvi' l>ecn produi-.-d nt tlie fomn'r hearing. A 
velie.irlnR w™ Bninle.1. further H-stlmimy laki'n .^t Sun DIeso, and on September 28. 
TSU, the nrdiT uC the <\>mnilKsti)n was entered cunrlrnilnK the original Hndlngs and 



Coo'^lc 



industriaij accident commission decisions. 

{No.40— May5, 1914.) 
<Clu»pter ITS, Laws 1913.) 



Charles H. Grauss, in propria persona, for Applicant. 
Nat Schmulowits, attorney, for Defendants. 
This was an application for indemnity for a temporary total disability 
resulting from an indirect right inguinal hernia. An operation was 
performed. The Commission found that the hernia was proximately 
caused by an industrial accident, and allowed applicant $25.71 for 
three and three sevenths weeks of temporary total disability; also pay- 
ment for hospital ami surgical services rendered. 

H. L. WmTB, 
Secretary. 

(No. 74— May 5, 1914.} 
(Chapter ITS, Lawa 1913.) 



Frank J. Soil, claim adjiister, for Applicant. 
William Williams, in propria persona, for Defendant. 
This is an application made by the insurance carrier to have the 
amount of compensation due defendant definitely ascertained. Defend- 
ant suffered a right inguinal hernia on January 31, 1914, in San Diego, 
while assisting in moving a piano upstairs. The applicant had re- 
<|uestf(l him to submit to an operation, which he had refused. The 
Commission allowed defendant $46.85, for five weeks' temporary total 
disability up to March 22, 1914, and payment for medical services 
already rendered ; also ordered that if he should elect to submit to an 
operation prior to September 22, 1914, the applicant should be privi- 
leged to designate the surgeon to perform same and the hospital in 
which it should be performed, and should pay the rest of such surgical 
and hospital services, together with a temporary disability indemnity 
of $9.37 per week while defendant was disabled by reason of such 
operation. 

n. L. White, 
Secretary. 



D.gitizecbyG00glc 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 53 

(No.31— May5, 1914.) 

(Chapter 116. Lawa 19)3.) 
FRED P. BAEBY, Applicant, vs. ABBEY AUTO SERVICE (SMITH & PER- 
KINS, Pbopbietobb), Defendant. 

Fred P. Barry, in propria persona, for Applicant. 
W. J. Smith, for Defendant. 
This is an application for compensation for a broken wrist, caused by 
being struck while cranking an automobile, in Los Angeles, on February 
7, 1914. Applicant was allowed $42.46 for four weeks' temporary total 
disability, up to March 21, 1914, also $4.77 per week for partial disa- 
bility after that date and during the continuance thereof j also medical 
and surgical services in the amount of $80.00. 

H. L. White, 
Secretary. 

(No. 39— May 5, 1914.) 

(Chapter n«. Laws 1911.) 
AI.l.ICK I,. MORSE AND GWENDOLYNN EUNICE MORSE, Applicant), va. 
KOVAI, INDEMNITY (IIMP.ANY. AM) 1'A(^1FK' I.ICllT AND I'OWKlt 
COMPANY, Defcndantt. 

Dependbnct — Divorce — Child Awarded to Mothee. — Where there has been a 
divorce, and a minor daughter has been swarded to the mother, no order tor the 
child's support having been made b; the court, the father is not responsible for 
said support, and (here ia no presumption of Ihe dependency of said child on 
the father. 

Partial Dependency — Voluntary Contbibutions fob Soppobt of Child Afteb 
Divorce.^ Voluntary contributions to Ihe support of the employee's minor child, 
even tbough such child has been awarded to its mother by a. decree of divorce 
without provision for support by the father, fixes dependency as a matter of fact, 
and the child is entitled to an award of deftlh benefits based upon the amount of 
such contributions. 

This was an application for death benefits by the divorced widow and 
minor child of the deceased employee. The facts are stated in the 
opinion. An award was made to the minor child, as a partial de 
pendent, in the sum of $123.00. 

Allice L. Morse, in propria persona, for Applicants. 

B. a. Wills, for Royal Indemnity Company. Defendants. 

Sidney Walter Morse was a line patrolman for the Pacific Light and 
Power Company and was accidentally drowned in Peso Creek, in Kern 
County, California, on the 26th day of January, 1914. He had been 
married to Allice L. Morsti, one of the applicants herein, and to them 
had been born a child, Gwendolynn Eunice Morse, who, at the time of 
the death of hor father, was a minor. Husband and wife had separated 
and by order of the Superior Court of Kern County, made and entered 
on the 12th day of July, 1913, a final decree of divorce was granted 



54 INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 

Allice L. Morse from her husband, Sidcey Walter Morse, the cus- 
tody of the minor child, Gwendolynn Eunice, being awarded to the 
mother. Under the laws of California the parent entitled to the custody 
of a child is, unless otherwise ordered by the court, responsible for the 
support of such child. There is, therefore, no presumption of depend- 
ency in favor of Gwendolynn Eunice Morse and against the employer 
of the deceased or the insurance carrier of the employer by reason of 
her father's death. 

Nevertheless, there was evidence to show that, during the year pre- 
vious to his death, Sidney Walter Morse had contributed to the support 
of his daughter the sum of forty-one doUara ($41.00) and it is fair to. 
presume that, had he lived, he would have continued so to contribute. 
Hence the award of three times forty-one dollars ($41.00), or a total 
death benefit of one hundred twenty-three dollars ($123.00) seems to 
be warranted by the law and evidence in this case. 

A, J. PiLLSBURY, 

Will J. French, 
Commissioners. 



(No. 53— May 5, 1914.) 
(CbEpter lie. Laws 1913.) 



,RDEN OP Proof. — The burden of proof is on tlio applicnut to establisli 
the fact of his iujury and disability to tbe satisfaction of the CoDimSssion. Kul 
wbere (he injury is of such a nature that objective Bymplons are abBent. depend- 
ence must be placed on the history of tlie ca.°e given by tlie applicant, if be 
appears to be dependable. 

This is an application for nn injury to the back caused by a fall on 
January 22, 1914, at I-os Angeles. The facts are stated in the opinioo. 
An award of $48.73 was made for three and five sevenths weeks of 
temporary total disability. 

J. A. Mvrphy, iti propria pamona, for Applicant. 
Bradncr 11'. Iji'c, attorney, for Defendant. 

On the 22d day of January, J. A. Mnrphy, by occupation a carpenter, 
in the employ of the Cudahy Packing Company at Los Angeles fell 
from a seven-foot step ladder, injuring his back. The defendant 
Casualty Company of America resists payment of c-ompiinsation on the 
pround that the injuries, if any, were trivial and did not occasion dis- 
ability. At the hearin<r it was sought to be shown that, if there were 
disability, it was occasioned by hmilm^) and not by accident. 

Wc think that the testimony dors not substantiate the contention of 
the defendants. Defendants' physician did not .see applicant until two 



INDUSTBLU- ACCIDENT COMMISSION DECISIONS, 55 

weeks after the injury, by which time external marks of the injury, if 
there were any, might easily have disappeared. The record made by 
Dr. A. W. Miller at the City Receiving Hospital, to which Murphy was 
taken immediately after the accident, shows that there was ao injury, 
and the testimony of Dr. P. 0. Yost, who examined Murphy on the 2d 
day of Februarj-, makes it evident that Murphy was then suffering 
much pain upon motion and was disabled from labor. 

It is a matter of common knowledge that injuries to the back are 
often devoid of objective symptoms, and great dependence must be 
placed, if the injured person be dependable, upon the history of the 
case given by the injured person. We regard Murphy's testimony as 
entirely dependable. The evidence of his employer's representative at 
the hearing shows that he is a steady, industrious workman, who seldom 
laid off or failed in performing his duties. He possesses none of the 
characteristics of the malingerer, and his testimony is entitled to inucli 
credence. Notwithstanding the fact that lame back cases are generally 
to be viewed with suspicion, we think that the applicant has fairly 
established his claim, and we make our award accordingly. 

A. J, PlLLSBURY, 

Vfajj J. Pbencii, 
Commissioners. 



•{No. 52— May 6, 1914.) 

(Cliapler ITS. Laws 1913.) 



Marcus W. Robbins, attorney, for Applicant. 
Frank J. Salt, claim adjuster, for Defendants. 
This is an application for compensation for injuries to leg and foot 
as the result of being kicked by a mule on February 17, 1914, in San 
Diego. Award was made of $8.44 for one week's temporary total disa- 
bility; also reasonable value for medical and eut^ical services. 

H. L. White, 
Secretary. 

(No.55— May6, 1914.) 

(Cliapler 176. Laws 1S13.) 
C. B. ARMIGER. Applia 

BuBDBR OF Pboof— Neglect to Repobt Injubi.— Tbe burden o[ proof 1b on the 
applicant to show Ihat an industrial accident was the proximate cause of the 
lajuTj complained of. A failure to report an injury at the time it bappens and 
for an unreasonable lime afterward mates necessary the corroboration of th* 
testimony of tbe injured part;. 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS.- 

t parable unless the result 

This is an application for compensation for an injury to the leg and 
hip claimed to be caused by a strain while lifting. The facts are stated 
in the opinion. Compensation was denied. 
A. L. Wissberg, attorney, for Applicant. 
Frank Davis, for Defendant. 

The applicant in this case alleges that, on or about the 16th of Feb- 
ruary, 1914, while in the employ of the Townsend-Davis Baking Com- 
pany, at San Diego, California, and while attempting to place a box of 
bread (weighing, together with the Imx, perhaps as much as 110 or 115 
pounds) upon a shelf as high as he could reach, something "kinked" in 
his leg and hurt in his hip causing him to fall upon the box, and that 
the disability consequent thereon lasted until the 30th of March. 

Applicant admits that he did not report to his employer that he had 
been injured in any way, but only that his leg hurt hira and that he 
could not do the work. There was evidence to show that applicant had 
limped around for several weeks before the injury complained of and 
that he had spoken to his fellow workers of the fact that his leg hurt 
him and that he feared that an old trouble (paralysis of the lower por- 
tion of his legs) was coming back on him, but to none of them did he say 
anything about any accident having happened to him. 

It ia the most natural thing in the world for one who gets hurt, if he 
says anything alwiit any disability from any cause whatever, to tell how 
he was hurt at the time that he is hurt, and when one fails to do this at 
the time, but waits until long afterward, the presumption resting upon 
him to establish the fact of injury, rests all the harder and requires 
more than his own unsupported testimony to establish the fact of injury. 
This burden applicant has not, in this case, fully discharged. 

It is true that the testimony of Dr. G. G. Paull, an osteopathic 
physician, tends to establish as a fact that the "nacro-iliac articulatiou 
was a little twisted out of position," but the doctor testified that he 
corrected the difficulty with one treatment, and that the disability 
from that cause should not have lasted longer than one week or ten days 
at most, which would not have been sufficiently long to allow a disability 
payment under the compensation act. Therefore we conclude that the 
application of said Armiger for relief mu.st fail through want of evi- 
dence to sustain the fact of injury, or, if there was an injury, through 
want of evidence to establish sufficient disability resulting from such 
injury to entitle him to compensation. 

A. J. PiLLSBUBY, 

H. Weinstock, 
Commissioners. 
i:„i,- r.GoO^^lc 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS, 57 

(No. 87— May 6, 1914.) 

<Cli:ipler 176. Laws 1913.) 
ARCHIE BAINEY, Applirant, tb. W. McCLAlN, Defendant. 

Accident — Co^TlllBUTOBY Nkglkiente. — Contributory negligence on the pnrt of the 

injured person is not a defense to a claim for compensation for disability, as the 

result of the injurj-. 
PiiTRiciAK.— The employer may select the physician to treat the injured peiBoa and 

it is incumbent upon the latter, if he accepts the services tendered, to cooperate 

with such physician in effecting a cure. 

The facts are stated in the opiDioD. Award was made in the sum of 
$13.14 for two weeks' total disabilitj', and $1.95 per week during the 
period of temporary partial disability ; also payment for medical services 
rendered applicant. 

M. McDonald, for Applicant. 

G. W. Widcliffe, attorney, for Defendant. 

On the 13th of February, 1914, the applicant in this case was assisting 
to clear out some boxes and rubbish from the basement of the Owl Drug 
Company at Fifth and Broadway, Los Angeles. He had piled the 
rubbish on the elevator and his employer, looking down from above, 
saw that some of the pieces stuck out over the edge of the elevator plat- 
form. He called to applicant to straighten them out. The applicant 
straightened out some of them and called out that it was all right and 
started the elevator, but, as a matter of fact, a piece of 2 by 4 still stuck 
out over the edge and caught against the wall, and striking against some 
other material, pushed the applicant ofE the edge of the elevator. His 
leg was caught between the elevator and the wall and would have been 
taken off had it not been that the elevator was brought to a full stop by 
the obstruction. The payment of compensation was resisted on the 
grounds of intoxication and wilful misconduct. There was no evidence 
at all to establish the charge either of intoxication or of wilful miscon- 
duct ; a rather inexcusable carelessness in failing more carefully to see 
that nothing projected over the side of the elevator platform. By reason 
of the accident, painful injuries were inflicted, and at the time of the 
hearing, April 16, 1914, the disability had not entirely disappeared. 
Certain nerves, probably the anterior tibial, were paralyzed, causing in- 
ability properly to use the flexor muscles. We think this incapacitates 
the injured employee to do the work he was doing at the time of the 
injury, and have tixed his loss of earning power thereby at three dollars 
($3.00) per week, sixty-live per cent of which equals one dollar and 
ninety-five cents ($1.95) per week. This will be continued for a reason- 
able time, during which, by proper treatment, either by massage or an 
operation, complete recovery can be effected. It is incumbent upon the 
employer to furnish this treatment, and he is privileged to select the 

.;oogic 



58 INDUSTKIAIi ACCIDENT (X)MM!SSION DECISIONS. 

physician if he desires to do so. It is also incumbent upon the injured 
employee, if he accepts such treatment, to cooperate faithfully with the 
physician in effecting a cure. Whenever the physician treating the case 
declares the patient cured, defendant is authorized to cease making the 
payments required by this award, 

A. J, PiLLSBXJBY, 

Will J. French, 
Commissioners. 



(No. 98— May 6, 1914,) 

(Cliapler ITS, Laws 1913.) 



Uebnia. — Tbere muRt be direct and positive testimODj to establish the accidental 
character of a rupture. It is uBually the result of disease or abdominal weakuen. 
Ttie accident is usualtj the occasion ratlier than tbe cause of tiie iDjuT7. 

The facts are stated in the opinion. No compensation waa awarded. 
C. Hertert, in propria persona, for Applicant. 
Roy E. BtpAam, adjuster, for Defendants. 

The applicant in this cause allege that^ on or about the 20th day of 
January, 1914, while working as a stevedore for the E. K. Wood Lumber 
Company, and helping to carry a heavy timber, he slipped and ruptured 
himself. However, he continued to work off and on, as stevedores do, 
some of the time doing heavy work and his full share of it, up to the 
3d day of April ; in fact, until the morning of the 4th,. when he quit on 
account of the pain from his rupture. 

The facts may be exactly as he states them but, unfortunately for him, 
bis statements are entirely without corroboration. He was able to pro- 
duce no witness who remembers of his speaking of being injured at the 
time of the injury and he was not examined by any physician until the 
4th of April, and during that interval he worked for employers other 
than the E. K. Wood Lumber Company. 

In view of the fact that rni)ture is seldom in any proper sense the 
result of an accident, but usually the result of a progressive disease or 
abdominal weakness to which the accident ordinarily bears the relation 
of occasion, rather than of cause, this Commission must require very 
direct and positive testimony to establish the accidental character of 
any rupture or hernia. Not being able to furnish such testimony the 
application of Mr, Hertert for relief in the premises must be denied. 

A. J. Pu,l-r-BURT, 
H. WeIN STOCK, 

Com missioners. 



.Goo^^lc 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 59 

{No. 50— May 7, 1914.) 

(Chapter 176. Laws 1»13.) 

THK(«M)ItK Lt'CIKN anu ANNA I,IM!IBN. AppKraaU. vs. JUDSON MANU- 
FA(.vrt;RIXG COMl'ANY, and (IALIBXJRNIA CASlIAI/rY INDEMNITY 
EXCHANGE, Defendanlt. 

Accident — Buboen of Proof. — The burdt-n of proof is upoD ao applioaat for death 
benolits to establish the fact of accident and that the deatb was proximately 
caused thereby. lo this case death was caused by streptococcic pneumonia, but 
while the latter was not unl'kely the result of some injury, there was do evi- 
dence to show when the injury took place, whether in or outside of the employ- 

This is &n applicatioD for death benefits by the parents of the 
deceased. The facts are stated in the opinion. Death benefits were 
(.lenied. 

Theodore and Anna Lucien, in proprvi persoiue, for Applicants. 
Hamilton A. Bauer, attorney, for Defendants. 

Theodore Lucien, Jr., a colored lad of sixteen, was, on or about the 
21st day of February, 1914, employed In the manufacturing plant of 
the Judson Manufacturing Company at Emeryville, Alameda County, 
California. That night he came home Ihnping and complained to his 
mother that he was hurt while pushing a truck of scrap iron uphill. To 
another he said that he had slipped and strnek his leg. To another he 
said something about an injury to the calf of his leg. To another he 
said that his back hurt. To another he complained that his ankle had 
been sprained. To -another he said that he had strained his abdomen; 
and in a signed letter, written to his employer, the complaint given was 
a sprain of the leg. On the evening of the 21st he went for a short walk 
after supper, but soon returned and went to bed, and on the day fol- 
lowing he had a high fever and suffered much pain, but a physician 
was not called in until the 24th. He grew steadily wor.se nntil the 1st 
of March, when he was taken to the Merritt Hospital, where, on the 2d 
of March, he died of streptococcic pneumonia. The question for this 
Commission to decide is whether or not death was proximatel.v caused 
by accident. The determination of the issne is of much difficulty. 
However, there is no clearly defined evidence of any particular accident 
happening at any parlicular time, and me<lieal authorities consulted are 
strongly of the opinion that the streptococcic pneumonia was the result 
of an infection, and that the infection in the leg must have antedated 
the time of the alleged accident (Pcbniary 21st) by several days, inas- 
much as there was infection and fever on the night of the 21st, which 
could not have arisen out of an injury .sustained by accident on the 
21st; i. e., the disease was in actual progress on the day when it is 
alleged that an injury happened throngh accident, and, if so, the death 
could not have resulted from any such accident. The disease was not 



60 INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 

unlikely the result of some injury, but there is no evidence to shoiv 
when the injury took place, whether in the employment or outside of 
the employment, or at any time whatever, and it is possible for sueh a 
disease to develop and terminate fatally without the happening of any 
accident or injury whatever. Therefore, we are compelled to deny the 
payment of a death benefit in this ca.se. 

A. J. PiLIfiBURY, 

WiiJi J. Pbench, 
Commissioners. 



(No. 56— Jfay 7, 19U.) 



Partiai, Disability — Dismeuhermknt.— A dismomberuiont of the body, although 
sliRlit. aud although the injured ppraon Las returned to his em ploy men t at his 
former wages, creates a partial disability ; it causes an inability to compete with 
whole men in obtaining employmnnt, and. in the average man, results in a lower 
earning power. 

Memc.il Services. — The emplojer has the right to select the physician. He must 
lake the initiative and must act promptly in so doing. If he fails to do so, he 
ean nut afte^^^'anI require the Injured person to change his phyKician. 

This ia an application for compensation for loss of the forefinger of 
the left hand at the middle joint. The facts are stated in the opinion. 
The applicant was allowed compensation of $15.00 a week (being *i5 
per cent of his averape weekly earnings), for twenty-eight weeks, 
amounting to $420,00, together with the expense of medical and sur- 
gical treatment. 

Linn A. Basifftt. in propria pi-rsotia. for Applicant. 
E. L. StockirdI, attorney, for Defendant. 

Linn A. Bafisett, the ajiplicant in this ca.se, is a machine man in a 
planing mill and an experienced workman. On the 28th of January, 
1914, he sustained an injury by accident, resulting in the loss of the 
forefinger of the left hand at the middle joint. After a temporary 
total disability of nearly six weeks he returned to the same work for 
the same firm at the same wages he wa.s receiving at the time of his 
injury. Defendant ^Wna Life Insurance Company tendered weekly 
disability indemnity payments to applicant for three and four sevenths 
weeks, beginning with the fifteenth day after applicant quit work on 
account of the injury and ending when he returned to work on the 9th 
day of March, and thereupon refused further payments, on the ground 
that the disability had terminated, in consequence of M-hich action 
ppplicant instituted this proceeding. 

i:Qi,.r::::G00'^lc 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 61 

Subdivision (ft) 2 (5) of section 15 of the Workmen's Compensation, 
Insurance and Safety Act reads in part as follows: 

"If the accident causes permanent disability the percentage of 
disability to total disability shall be determined and the disability 
indemnity computed and allowed as follows: for a ten per cent 
disability, sixty-five per cent of the average weekly earnings for 
a period of forty weeks," etc. 

The Schedule for Rating Permanent Disabilities, prepared under the 
direction of the Commission, affords only prima facie evidence as to 
what -such ratings should be, and evidence may at any time be intro- 
duced or investigations made to show that other ratings than those pro- 
vided in the schedule should be made. The schedule as prepared 
embodies the best experience of the world in such matters, as well as 
the expressions of the personal views of hundreds and even thousands 
of employers and employees. Therefore, the ratings given by the rating 
schedule are not lightly or inconsiderately to be thrust a.side in favor of 
the expressions of views of a limited munber of persons. 

Defendant jEtna Life Insurance Company introduced testimony to 
show that in the ease of Bassett all disability had ceased at the end of 
live or six weeks from the date of the injury, for the reason that appli- 
cant had returned to work and wa.s no longer suffering from disability, 
and for the further reason that many mill men more seriously injured 
than he are earning regular wages right along, which testimony brings 
up for consideration what constitutes "disability" within the meaning 
of the Workmen 's Compensation. Insurance and Safety Act. 

The Standard Dictionary defines disability as "lack of ability of 
some sort," "impotence." "a state of being disabled." a "crippled con- 
dition," "rendered incapable of proper or effective action," etc. 

"Disability," as used in adjusting issues arising under the Work- 
men's Compensation, Insurance and Safety Act, is not always confined 
to inability to earn. Whoever suffers a di-smemberment of the body 
has suffered a permanent "disability" within 'the meaning of the act, 
although the act itself recognizes the probability that the disabled 
person will, after the lapse of a reasonable time, proportionate to the 
percentage which his disability bears to total disability, rehabilitate 
his earning capacity. That is, while permanently "disabled," he is not 
expected to be permanently incapacitated from earning, and the number 
of weeks' componsafion allotted to eai-h percentage of disability is 
expected to measure with substantial acenrney the time required fully 
to rehabilitate the earning power of the average man, not the excep- 
tionally capable man, in any particular employment. 

However, in the rating schedule above referred to. something is 
allowed for inability to compete with whole men in obtaining employ- 
ment, and this inability will continue through life. Something also is 



62 INDUSTRIAL ACCIDENT COMMISSION DEaSIONS. 

allowed for the disablement itself, for whoever has lost an eye, a hand, 
a finger, or even a phalance, has suffered a permanent loss. If he is a 
superior and resourceful person he will rise superior to that loss. If 
he is not, he will sink to a lower level of earning and living. The evi- 
dence adduced by defendant -Etna Life Insurance Company may be 
true as to exceptional men in particular employments, but it is not true 
as to the subnormal man, and not mufh more nearly true as to the 
average man, and it is to meet the needs of the averasre man that our 
rating tables were made. 

Therefore we are of opinion that the rating given by the rating table, 
which takes into consideration the age, the occupation and the nature 
of the physical injury or disfigurement of the injured worker, and 
represents an infinitely broader view of the case than represented by 
the testimony offered by the defendant insurance carrier, should prevail 
in this case, and we so find. Applicant is entitled to receive sixty-five 
per cent of his wages for twenty-eight weeks as compensation for the 
loss of the forefinger of the left hand at the middle joint. 

Furthermore, he is entitled to receive the reasonable value of the 
medical and surgical services rendered to cure and relieve him from 
the efl^ects of his injury, not to exceed twenty-seven dollars and fifty 
eents ($27.50). The law gives the employer the right to select the 
surgeon and the treatment, but he must not sleep on that right. When 
an employer knows that an employee is injured, it is his dutj' to take _ 
the initiative in the matter of supplying treatment. lie can not wait 
four or five days and then insist upon his right to change surgeons, and 
he need not wait for the injured person to apply to him before he acts. 
First aid must be furnished by the physician who can first be reached, 
but directly thereafter definite, permanent arrangements for treat- 
ment must be made either hy employer or employee. If the employer 
does not act the employee may do so. and may hold the employer or his 
insurance carrier responsible for the rcasotiable expenses of the treat- 
ment to be allowed by this Commission. In this case the employer did 
not act with promptness, and the employee selected his own surgeon 
and very properly refused to change surgeons and treatment four or 
five days after the injury. 

A. J. Pn,LSBtjRy, 
■\Vu,i, .1. French. 
Commissioners. 



D.gitizecbyG00glc 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 

(No. 86— May 7, 1914.) 

(Cluipler 176. Ijiwh 191S.) 



DisABiLiTT — '?iIb)ical EVIDENCE. — In certain cases reliance mast be placed upon 
the evidence of physicians as to the existence of disability. Where the opinion 
of physicians is that the disability is not sufficient to prevent the injured em- 
ployee from resuming his employment, the Commission will be guided by it. 

Independent Contbactob — -Euployeb of Owner. — -Where tbe one who hires the 
injured person is not an independent contractor, but is merely employed by the 
owner to superintend the work, the liability to pay compensation doea not rest 
on him but on the owner alone. 

This is SD application for twelve weeks' compensation at $22.00 per 
week, and medical expenses, for an injury to the wrist, caused by its 
being cut by a chisel, the accident occurring on January 26, 1914, in 
San Diego. The other facts are stated in the opinion. Compensation 
for two weeks at $15.00 per week (the same being 65 per cent of his 
average weekly earnings) and the reasonable cost of medical treatment 
were allowed, 

0. A. Batcheldcr, in propria persona, for Applicant. 
Rogers & Davis, attorneys, for Defendants. 

On the 15th day of November, 1913, Mary E. Powers entered into a 
written contract with Charles \V. Kreis, whereby he was to enter her 
employ as superintendent of construction of a five-room cottage and a 
frame store building to be erected in Ttfission Hills, San Diego, on a lot 
owned by said Mary E. Powers. For this service said Charles W. Kreis 
was to receive five per cent of the total cost of the building, Mary E, 
Powers to pay all bills for material and labor certified to her by Kreis 
a^ superintendent. Thereafter, in the course of the performance of his 
contract, said Charles W. Kreis employed C. A. Batchelder as a car- 
penter to work upon said properties, and on the 26th day of January, 
while so employed, applicant Batchelder cut the wrist of his left hand 
with a chisel. The wound was an incised puncture involving some 
smaller blood vessels, but the chisel did not touch the bone and no 
tendons were cut. There was an injury to the annular ligament of the 
wrist, but there was no injury of a permanent disabling character. By 
reason of said injury, applicant sustained a disability for four weeks, 
at the expiration of which time nature had done all it could to repair 
the damage. The applicant, however, because the use of the wrist gave 
him some pain, continued to be idle until practically the date of the 
hearing. According to the evidence of his own physician, such idleness 
was not warranted by the in.jury, and, in such matters, this Commi.ssion 
must be guided by niedieal evidence. Wc think, however, that the 



D.gitizecbyG00glc 



64 INDUSTRIAI> ACCIDENT COMMISSION DECTSIONS. 

applicant is entitled to receive as compensation a two-weeks disability 
indemnity and the reasonable cost of the medical and surgical treat- 
ment, which was not furnished him by the employer. 

By virtue of the contract referred to. we conclude that, although 
Batchelder was hired by Superintendent Kreis, he was, in fact, an 
employee of defendant Mary B. Powers. The claim for compensation 
and medical treatment, therefore, is one which should be made against 
Mary E. Powers as the real employer, and not against Charles W. Kreis 
who, by the terms of his contract of hire, was an employee of Mary E. 
Powers and not an independent contractor within the meaning of this 
act. 

A. J. Pn-LSBURY. 

Will J. French, 

Commissioners. 

{No. 78— May 8, 1914.) 

(Chnpler 176. LnWB 191S,) 



ArdDEKT — I'BOXJMATB CAUSE — IlEBKtA. — CoTOiH-nsation will be allowed for n 
liirnift if it is the iiroiimatc result of an ai-cUlput: but if the hprnia was mercl.v 
nj^ravntcd by an accident, no couippnsation will he allowed. 

This is an application by an insurance carrier to determine its lia- 
bility to defendant growing out of a complete right inguinal hernia 
suffered by defendant on February 7, 1914, by slipping while ^ing 
downstairs at 349 Montgomery street, San Franci«co. Defendant had 
previously had an incomplete hernia, and was wearing a truss at the 
time of the accident. The ('<munission held that the ai-eident was not 

the proximate cause of the beniia, and denied compensation to the 
defendant. 

T. A, firaddni, attorney, for Applicant. 

Ernrst P. Raivliiig, in propria persomi. for Defendant. 

Compensation for industrial in.iuries is, in part, ba.sed upon the 
principle that each industry must take care of its own killed and 
wounded and those dependent upon them, but it is not fair to any 
industry to charge it with the cost of disabilities not created by or 
growing out of such industry or occupation. Hernias are, properly 
speaking, seldom and only sometimes, the proximate result of accidents, 
and, when they are not, compensation for them can not be allowed. 

In this case defendant had a hernia which was only aggravated, not 



D.gitizecbyG00glc 



INDUSTRI-VL ACCIDENT COMMISSION DECISIONS, tJi) 

caused, by accident, and the indiiatn.' in which defendant was engaged 
at the time is, therefore, not properly chargeable with the cost of the 
disability resulting from the alleged accident. 

A. J. PlLLSBURY, 

"Will J. French, 
Commissioners. 



(No. 81— May 8, 1914.} 

{Chiipler 176, Lows 1913.) 
WILLIAM FARLIN, Applicant, i 

William Farlin, in propria persona, for Applicant. 

E. L. Stockwell, attorney, for Defendant. 
This is an application for death benefit by a father who had been 
partially dependent upon his deceased son. The latter was electrocuted 
OD January 3, 1914, at Point Richmond, while repairing a telephone 
line for the Los Angeles Pressed Brick Company. Deceased had been 
contributing about one fifth of his earnings to his father's support; 
therefore the sum of $540.00 (being one fifth of three times deceased's 
average annual earnings of $900.00) was allowed to applicant. The 
defendant had already paid $100.00 for the funeral expenses of the 
deceased, and, upon showing necessity therefor, the Commission sanc- 
tioned the commutation of the balance ($440.00) to a lump sum pay- 
ment of $430.71, its present value. 

H. L. White, 
Secretarii. 



(No. 27— May 9, 1914.) 

(Chapter 176, Laws 1913.) 
HONAM PAPONOFF, Apiilicant. vs. CALIPOIIXIA INnUSTRIAF, BAR IRON 
AM) STKi:!. ItOI.LlN(! MII.I-S, anm FIOIOLITV AND CASnAI/l'V COM- 
I'ANY OF NEW YORK, Defendants. 

R. A. Dunitigan, attorney, for Applicant. 
Ray Eberhard, attorney, for Defendants. 
This is an application by a widow, residing in Russia, through her 
attorney-in-fact, for compensation for the death of her husband who 
had been killed on February 7, 1914, by a boom falling on him while 
he was at work in the miil.s of the first named defendant, in Los Angeles. 
Deceaiied left a widow and eight minor children. Three years' average 
yearly earnings, amounting to $1,800.00 were ordered paid to appli- 
cant's attorney-in-fact, in .sums of $:i0.00 everj- fourth week. 

IT. L. White. 
Secretary. 
r^ll— liraS D.(jitizec oyGooc^lc 



66 INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 

(No. 51— May 11, 1914.) 

(Chanter 176, Ijiwa 1913.) 
^rRS. MAY L. WELLS. . 

Mrs. May L. Weils, in propria persona, for Applicant. 
James Lauagan, attornoy, for Defendant. 
This is an appJicatioa for eurapensation for an amputated finger, 
claimed to be made necessary as the result of a biirn received on Febru- 
ary 6, 1914, while strikin<r a match to light the gas for a body ironer 
in defendant's laundry in San Francisco, the wound afterward becom- 
ing infected. The Commission held that the evidence was insufficient 
to establish as a- fact that the injury to the finger occurred in the course 
(if the employment, and denied compensation. 

H. L. White, 
Seer e tar;/. 



(No. 130— May 11. 1914.) 

(Cluii'ter ITG. Laws 1913.) 



John W. Baity, in propria persona, for Applicant. 
P. S. Haynes, for Defendants. 
This is an application for compensation for a permanent partial dis- 
ability caused to applicant on January 19, 1914, by having hb hand 
caught in a machine while crimping springs for mattresses in San Fran- 
cisco. In a previous accident applicant (a ri{;ht-handed man) had lost 
part of the second, third and little fingers of his right hand. In the 
present accident the remaining part of tli&se three fingers and the entire 
index finger and thumb of the .same hand were cut ofl'. Applicant was 
allowed compensation of ^^.'M per week ((15 per cent of his average 
weekly earnings) for one hundred forty-two weeks, amounting in all 
to $1,330.54, which, upon applicant's sufficient showing of necessity 
therefor, was commnted to a lump sum payment of $1,231.34. its present 
worth; applicant was also allowed the expense of medical and surgical 
treatment. 

It. t,. WniTK. 
Secretary. 



D.gitizecbyG00glc 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 67 

(No. 32— May 20, 1914.) 

(Chapter 176, IaiWs 1913.) 
WILLIAM B. ALLEN, Applicant, va. SOUTHWESTERN SURETY INSUR- 
AN'CE COMPANY, anp CALIFORNIA PI-ANING MILL AND LUMBER 
COMPANY. DefendanU. 

BUBDEN OF P HOOF— Pbo XI HATH Cause, — The applicant must establish the Eoct that 
his disability was proiimatelj caused hy an industrial accident, and, if there 
previously existed a diseased condition which would oE itself have soon resulted 
in a disability, an event that brJDEB on such disability is Dot a proximate eauKe 
but a mere incident thereof. 

This is an application for compensation for disability resulting from 
peritonitis caused by perforation of the duodenum. The faets are stated 
in the opinion. Compensation was denied. 

William B. Allen, in propria persona, for Applicant. 
W. 0. Norton, attorney, for Defendants. 

William B. Allen is by occupation a teamster, and on or about the 
22d day of January, 1914, he was kicked at, but not hit, by a mule. 
He had been out of condition for a few days and had complained to his 
associates of stomach trouble and indigestion, but directly after this 
incident with the mule he was seized with severe pain and was forced 
to quit work, and, two days later tlie symptoms becoming alariuintr. he 
was taken to a hospital and operated on in the expectation of finding 
an inflamed appendix. Examination showed, however, that he was 
suffering from peritonitis caused by perforation of the duodenum. 
This perforation was caused, in turn, by duodenumal ulcer. Applica- 
tion was made to this Commission for eorapenaatiou on the theory that 
the perforation of the duodenum was caused by the strain of avoiding 
the kick of the mule. "While it is possible this may have brought on 
the difficulty immediately, the symptoms complained of showed that an 
nleerated condition had existed. Competent medical advice warrants 
this Commission in finding that the .strain complained of was a men' 
incident and not the cause of the perforation, which would unquestion- 
ably have taken place in the immediate future had there been no 
unusual strain at all experienced by the applicant. We think the 
industry chargeable with the eonsef|uences of all accidents growing out 
of the indiistry, but it is not properly chargeable with results that have 
only a coincidental relation to such accidents and are not proximately 
caused by them. For this reason compensation muftt be denied in this 
case. 

A. J. PlU-SBUKY, 

Wn.i. J. French. 

CommisxiiDier.'i. 



D.gitizecbyG00glc 



68 INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 

(No. 48— May 20, 1914.) 

(Chapter ITS, Laws 1913.) 

(»SSE EDWARD BURNK'n'. Ap,.lir«,,t. va. (IKORUK RYAN, and SOUTII- 

WKSTERN SURETY INSURANCE COMPANY, Dffendanti. 

K. W. Cannon, attorney, for Applicant. 
R. E. Bigham, attorney, for Defendants. 
This is an application for compensation for an injury to applicant's 
shoulder, caused by falling from a wagon which he wa.s driving on 
January 19, 1914, in San Francisco, and striking his right shoulder. 
Medical services were furnished by the insurance company. The latter 
paid applicant $75.00 compensation, and he executed a release. He 
subse<|uently filed his application herein, claimini; that the release was 
ine<piital)Ie and should be declared null and void; that he rc(p«red fur- 
ther medical treatment after he was discharged by the employer's physi- 
cian; that he was compelleil to employ other physicians and to incur 
hospital bills; and he a.sked for compensation for a permanent total 
disability, also payment of the bills incurred by him. Defendants 
claimed that any disability existing after he was discharged as cured 
by the company's physician was caused by his own misconduct. 

The Commission decided that the ai)pltcant was not entitled to any 
compensation in addition to that which he had already received. 

H. L. White, 
Src.iriarji. 

(No. 54— May 20, li>14.) 

(Cliii;Mer 176. Laws 1911.) 
MRS. E. B. TURCEON, AppIhaHt. vs. FOX COMPANY. Defi-ndanl. 

Dot allowed tor disabUlt)' If it dops not Inst more 

<'(H*RHK OK EMrLOTMKNT. — Wliprp it is the duty ot an pmployoo to go lo placvs 
away from Iit pmiilojer's offim and Ihen to reltim thereto to make a reiiort. 
Klie is, at nil Riich times, aetine in the course of her employment and is enlillcd 
(0 I'onippnsntion if injured by accident at such times. 

This is an application for compensation for an injury sustained 
while alifihting from a street car in San Franei.sco, on Kebruary 6, 
1914. while applicant was retuniinp to maite a report at her employer's 
office after p«rformiiig several errands in different parts of the city. 
Applicant's leg was injured, and some of her teeth were loosened. No 
compensation was allowed for lost time, as applicant was not incapac- 
itated for more than fourteen days; .she was. however, allowed payment 



D.gitizecbyG00glc 



INDUSTKIAL ACCIDENT COMMISSION DECISIONS. 69 

of medical services, amounting to $48.00; also the reasonable value of 
dental services. 

Mrs. E. B, Tuiyeoii, in propria persona, for Applicant. 
Daniel H. Knox, attorney, for Defendant. 

The applicant was injured by a street car on the evening of February 
6, 1914. The conti-oversy hinged on whether or not she was in the 
employ of the Pox Company at the time of the accident. While the 
evidence was somewhat conflicting, the United Railroads of San Fran- 
cisco determined the time of the accident at 6.09 p. m., by reference 
to its records. Applicant testified that she was on her way back to 
the office of defendant in the Merchants' National Bank Building to 
report the results of her day's work in accordance with her usual 
custom. In support of her contention is the testimony of both the 
special officer and the night elevator operator of the building. The 
special officer, who started his duties at six o'cIo(!k each evening, testi- 
fied he had seen Mrs. Turgeon leave the building "about 6.20 and 6,30" 
at different times. The elevator operator, when asked about the time 
applicant came into the building during the evenings of her employ- 
ment, testified that she entered the building "between quarter to five 
and eleven o'clock." 

No claim for lost time can be allowed, becau.se applicant did not 
lose more than fourteen days. The bill for medical services was pre- 
sented to Dr. Morton R. Gibbons, Jledical Director of the State Com- 
pensation Insurance Fund, for an opinion as to its reasonableness. 
After a careful investigation, he reported that the charge was fair for 
the attention required and furnished. Hence the award for medical 
and dental treatment. 

A. J. PiLLSBURY, 

Wn.i, J, French, 
II. "Weinstock, 

Commissioners. 

(No. 101— May 20, 1914.) 

(Ciiapter 176, Laws 1913.) 

.\M>l:i{SO\ MA.MIIiS, I 
KNOX AUTO AXn 

PALS). DrfcndaoU. 

Frank J. .SW/, ad.iust.-r. for l)ff('ndfints. 

Atidrrson .Majors, in propria jirrsona, for Applicant. 
This is an application for compensation for a fractured rib caused 
by fallins: through the roof of a building in Los Angeles, on March 12, 
1914, while defendant Williams, a-s contractor, was wrecking the bull d- 



Goo^^lc 



70 INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 

ing for the other defeudant, as principal. Applicant was hired by 
defendant Williams. The latti-r was not insured. 

The defense was that applicant did not fall, and did not break his 
rib ; that he quit work because the dust made him sick. The physician 
who treated applicant testified that applicant told him he had fallen, 
and complained of pain in the side; that he treated him for a broken 
rib, but did not know positively whether there was a fracture or not, 
aa the evidence was all subjective. 

The applicant was allowed $7.50 per week (65 per cent of his average 
weekly earnings) tor two weeks, amounting to $15.00. less $2.25 pre- 
viously paid to him; defendant Williams was ordered to pay this, and, 
in default of his paying same within thirty days, defendant Knox Auto 
and Waffon Manufacturing Company, the principal, was ordered to 
pay it. Medieal treatment had bi'en furnished by the Knox Auto and 
Wagon Manufacturing Company. 

II. 1;. WniTi:. 
Sccretarii. 



(No. 122— May 20, 1914.) 

(Chapter 176, I^wn 1913.) 



'John Kylr, in propria persona, for Applicant. 
Frank J. Solt, adjuster, for Defendants. 
Applicant on February 7, 1914, in Los Angeles, fell from a wagon 
and the team, running away, knocked him down. His head struck 
against a telephone pole. He claimed a total disability for two weelcs 
and a partial disability for two weeks. The defendants had furnished 
the required medical services, but claimed that the applicant was able 
to return to work by the end of the second week after the accident. 
The ComniiNsion so deiided, and therefore denied compensation, holding 
that he was entitled only to have the defendants pay for the medical 
services rendered him. 

n. L. WiiiTK, 

Secretary. 



D.gitizecbyG00glc 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 

(No. 123— May 20, 1914.) 

(Chapter 176, Laws 19 1 3.) 



Ramon Garcia, in propria persona, for Applicant. 
R. J. McNcely, attorney, for Defendants. 
Tliis is an application for compensation for a lacerated contused 
wound of the back caused by a falling piece of timber, in Loa Angeles 
on March 25, 1914. Applicant (.-laimed compensation for a total dis- 
ability for part of the time and for a partial disability still existing at 
the time of the application, April 20, 1914. Defendants claimed that 
the applicant was only partially disabled, and that at the time of the 
application the injury was too slip:ht to entitle him to compensation. 
The Commission held that applicant was totally disabled np to thu 
time of the application, three and four sevenths weeks, and therefore 
allowed him compensation for one and four sevenths weeks at $8,44 
per week, amounting to $18,26, but denied the claim of partial dis- 
ability. Medical services had been furnished by the defendants. 

H. li. White, 
Sccretanj. 

(No. 146— May 20, 1914.) 



anit. 

Dependekcy^Iij-eqitimate Child.— Where the deceased leaves an ill^itimate child 
who was partially deppudent upon bim. and to whom he contributed a certaiu 
portion of his earnings, tliat same portion of the death benefits will be awarded 
to the child. 

TsosTBC— Where the dependent ia a minor, the benetila to which he is entitled will 
be ordered paid to a truxtec tat him. 

Leola Curtis Brooks MUrhell, in propria persona, for Applicant. 

Bradner W. Lee, attorney, for Defendants, 
This is an application for benefits for death of husband on February 
27, 1914, in Los An-rejes, cansed by his falling from a wagon and being 
run over. In addition to the applicant, deceased left an illegitimate 
minor son, who was partially dependent upon him. deceased having 
devoted to his support twenty-five per cent of his earnings, which were 
$600.00 a year. The commission ordered $1,350.00 (three fourths of 
three years' earnings of the deceased) paid to the widow in bi-weekly 
payments «f $11.2r>; and $450,00 (one fourth of three years' earnings 
of the deceaR<'d) paid to George W. Mitchell, appointed trustee for said 



.^OO' 



,glc 



/i INDUSTRIAL ACCIDENT CX)MMI88IUN DKCISIONS. 

child, payable in bi-weekly payments of $3.7;"! ; also ordered defendants 
to pay the expense of the oiedieal and snrfrieal services rendered the 
deceased prior to death. 

H. L. White. 

ffccrclarif. 

{No. 136— May 20, 1!)14.) 

(Chapler ITS, Laws 1913.) 

C. O. JOHNSON. Applii-anl. vs. BAUPIK PO'PrERY COMPANY, asd FIDKUTY 

AM> CASVALTV COMI'ANV OF NKW YORK, Drfrndaiti. 

Occupational Disease — Lkad roia<)MSG.^IjpoiJ poisonitijr is nii ocmiialionBl i]i«- 
raxe and not su indtiHlrial a<i'idt'iit. A iliKnbilily rpsiiltiag tberefmiu U not 
proximalclj' raiiiied by hd accidpnl, nnd is thprpfore no! compeiiRnblo. 

C. 0. Johnson, in propria persona, for Applieant. 
James B. Arnold, claim examiner of the Fidelity and Casualty 
Company of New York, for Defendants. 
This is an application for compensation for total disability resulting 
from lead poisoning, caused by iminersin^r the hands and anns in 
ehcinieal glaxe while glazing pottery at the liaiier Pottery Company's 
works in Los Angeles. Held that the disability complained of was not 
caused by an industrial aeiiident, hut was the result of an occupational 
disease, t'ompensation was denied. 

H. L.WHITB, 
Secretary. 

NOTK." A pc-tition for ri'lipiirlng of tlip faotB nntl Ibhiips involvi-d In llio cipciBlon \n 
tills iippllrallon WiiH flicil hj- tlie nppllciint on Jun« S. lilH. and wus dfnlwl on June 



(No. 62— May 21, 1914.) 

(Chapter 176. I-nwa 1913.) 

I.OflSK V. CKAIG. ApfUrnat. vs. IlKltMAN J. AXT. ANP snUTIlWE.STKItN 

SURETY INSURANCE COMPANY, Defendanit. 

StAi.c oi' roMPE.vKATios — AvEBAnE EARNINGS. — Id determining average annual or 
daily earnings of an employee tbe iiutue is not as to what Clie actual earnings 
of the injured employee may or may not have been. Tbe purpose of the law is to 
reaeb tbe eommon experienee in tbe same or in a nelgbboring locality o( work- 
men of a claas to whieb the injured workman belongs. 

[p.- .\VEKA(if; A\-M-AT. KARSrNdS— .\VKKAI1E DAtf.Y EaRMNOH — IlOW CAl*UT,ATEn 

Whkbe Kmpi.<.ybk Has Wobkkli SrnsTANTiAi.i.v the Wholk of ruECEDiNO 
Yeab. — When; a norkmnn hns worked snbsiiintiflllj- rlie nholR of the preceding 
yi'ar in tbe s-Tine emiilojnient bis iivenme aiiuiiHl ciiminKs are to he taken at 
lhr< 



hr.r bundred times Ids avernKe daily wane. The 


avernce daily watte is to lie 


M-ertained by dividitiR the whole amount earned 


by the eraplo.vee duriOR the 


ear by tbe number of days worked in eariiinE hi 


ic-h amount and nol by the 


otal number of working do)*a in said year. 





D.oiiiz.owGoogle 



INDUSTRIAL ACCIDKNT COMMISSION DKCISION8. I'i 

Id.— Id.— •Si'BHTANTiAT.i.v THE WiiOLK Yrab" DEriNBi).— By 'siibslnntinHy (lie 
whole year" the CommisBion und^rslands thnt the employee must have worked 
anywhere from two hundred aod scvpDly-live Id three hundred and twelve days. 
Where siK-h in the mxo no ntlention is iiald in i-nli-ulatitic: the iiveriiEe antiiinl 
vragp to working days in which the employee was not employed, as a sufficient 
nvcraice or deduction is made for tliem by the Htatutory requirement fixing the 
nvernee annual earnings at three hundred limes the average daily wage. 

Id.— AVEBAGK AN.M'AT. KaKNINIIK- )I(IW fAl.firi„MKD WifKBK A.N lOlinjlVKK IIaH 

Not Worked Substantially tiie Whole Yeak In Euplotuent Whbbb 
Injcred. — Where an employee has not worked suhstantially the whole year in 
the employment in which he was working at the time of his injury the law 
requires that his average annual earnings be computed on a basis of the ex- 
perience of other men of his class who have worked substantially the whole 
year. Testimony must be taken as to the common experience of men of the 
grade and class to which the injured workman belongs in the employment id 
which he is engaged at the time of his injury. 

This is an application by a widow for a death benefit. There were 
two minor children. The facta as to the accident are stated in the 
opinion. The principal controversy was over the manner of computing 
the average daily wage of deceased. Decedent had worked for a con- 
siderable portion of the time for defendant Axt as a painter at the rate 
of ^.50 per day when employed, but was laid off frecjueiitly when work 
was short and on sueh occasions would take other jol)s when he conld 
get them. It was defendants' contention that the average daily wage 
was to be found by ascertaining the whole amount earned by decedent 
during the year and dividing this by the number of working days in 
the year. It was decided, however, that the statute required the average 
daily wage to be ascertained in a different mode, as explained in the 
opinion, and the amount was tlxed at $4.,^0 per day. The widow was 
accordingly awarded a death benefit for the support of herself and 
minor children upon thi.s basis, amounting to the sum of $4,050.00, 
payable at the rate of $16.87 per week for two hundred and forty con- 
secutive weeks and until wholly paid, and at.so the reasonable value of 
medical and suiTfical services rendered the deceased at the date iif the 
accident. 

Grant <(■ Zimdars, attorneys, for Applicant. 

Boy E. Bigham, adjuster, for defendant.- Southwestern Surety In- 
surance {,'ompany, which was substituted on motion for defend- 
ant Axt. 

On Jlarch 10, 1J114, one Henry N. Craig, a house painter, was working 
on a swinging scaffolding outside a building when, for .some reasim, the 
scaffolding swung out from the building. He lost his balance anil was 
precipitated to the pavement twenty-two feet below, sustaining a frac- 
ture of the skidl, fnmi the efteets t.f which be died that night. The 
applicant, Louise F. Craig, is the widow of the deceased and, together 
with two minor children, was wholly dependant upon her husband for 



...Goo'^lc 



74 INDUSTRIAL ACCIDENT COMMISSION DECI^ONS. 

her and their support. The defendant Southwestern Surety Insurance 
Company resisted the claim of the widow for the payment of the death 
benefit provided by law in sueh cases on the grounds that : 

1. The death was caused by the wilful misconduct of the deceased 
workman, and 

2. His average daily wage was not four dollars and fifty cents ($4.50) 
as claimed by the widow, but that it was not in excess of two dollars 
and fifty cents ($2,50). 

At the hearing held on the 14th day of April, 1914, no evidence of 
importance was brought forward to sustain the defense of wilful mis- 
conduct. 

The issue of average earnings was gone into much more fully than 
the law requires in ordi-r to determine such issue, doubtless becauae of 
a lack of understanding on the part of the insurance carrier as to what 
the law does require in determining average earnings. 

Thnw methods arc pntvided by the act for determining this issue, 
and it may be said parenthetically that the issue is not as to what the 
actual earnings of the injured employee may or may not have been. 
The result seldom or never exactly coincides with the fact. The pur- 
pose of the law is to reach the common experienec of workmen in the 
same or a neighboring locality and of the class to which the injured 
workman belongs. 

If a workman has worked substantially the whole of the precedii^f 
year his average annual earnings are to be taken at three hundred 
(300) times his average daily wage; that is, the average obtained by 
dividing the whole amount earned by the number of days worked in 
earning such amount. 

By "substantially the whole year," this Commission understands that 
the employee must have worked anywhere from two hundred and 
aeventj'-five (275) to three hundred and twelve (312) days. In the 
ease under consideration the deeeased workman had received four dol- 
lars and fifty cents f$4.50) per day on the days during which he had 
worked and there was evidence ti> sustain the widow's contention that 
he had worked about cloven months during the year preceding his death, 
or about two hundred and eighty-three (2S.3) days. Applying the 
above rule and multiplying his average daily wage of four dollars and 
fifty cents ($4.50) by three hundred (300), we ascertain his average 
annual earnings to have boon one thousand three hundred fifty dollars 
($1,3.50.00). If ho had worked only two hundred and seventy-five (275) 
days his actual earnings would have been one thousand two hundred 
thirty-seven dollars and fifty cents (it;l,237.ri0) ; while, if he had worked 
full three hundred and twelve (-{12) days, his actual earnings would 
have been one thousand four hundred four dollars ($1,404.00), not a 
bad average to strike ev<'n if be worked only two hundred and seventy- 



CnOO^^Ic 



INDUSTRIAL ACCIOBNT COMMISSION DECISIONS. 75 

five (275) days; whereas if he actually worked two hundred and eighty- 
three (283) days, or eleven montks out of the twelve, he actually earned 
one thousand two hundred seventy -three dollars and fifty cents 
($1,273.50). As compensation payments are made on the basis of 65 
per cent of the average earnings, the payments received are sufficiently 
lower than the actual earnings in cases where workmen have Ix'cn em- 
ployed "substantially the whole year," to make it more profitable to 
work than to malinger. 

If, however, a workman has not worked substantially the whole year 
in the employment in which he was working at the time of his injury, 
the law requires that his average annual earnings be computed on the 
basis of the experience of other men of his class who have worked sub- 
stantially the whole year. An injured workman may have recently 
come to the state or, as daily happens, one may not be able to find work 
at bis trade and must take such work as he can find until he can do 
better. In such eases testimony must be taken as to the common ex- 
perience of men of the grade and class to which the injured workman 
belongs in the employment in which he is engaged at the time of his 
injury. In this case the evidence offered at the hearing showed that 
the common experience of painters of the class to which deceased be- 
longs, a class of steady, dependable, competent workmen, is that the 
average is about eleven months' employment out of the twelve, so that, 
whichever way estimated, the evidence in this case warrants fixinp; the 
average annual earnings at three hundred (300) times the average daily 
wage of four dollars and fifty cents (i)i4.r>0) or one thousand three 
hundred fifty dollars ($1,350.00), or a total death benefit of four 
thousand fifty dollars ($4,050.00), to be paid to the widow, for her sup- 
port and the support of her children, at the rate of sixteen dollars and 
eighty-seven cents ($16.87) per week for two hundred and forty (240) 
consecutive weeks, a provision for the strifkcn family that is at once 
merciful and for the safeguarding of society from the innumerable and 
malignant social evils that prow out of poverty and pauperism. 

The third method of computinfi average earnings applies when 
neither of the foregoing rules can reasonably and fairly be applied ; but 
this method has mainly to do with seasonal employments not involved 
in this ease and therefore not necessary to be here considered. 

A. J. PiLrj;Bi3RV, 
Wn,L J. PKEKcir, 
IT. Weinstock, 

Commissioners. 



D.gitizecbyG00glc 



76 INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 

(No. 83— May 21, 1914.) 

(Chapter 176, Laws 1913.) 
A. It. SIMI'SOX. Applicant, vs. PAIIAFFINK PAINT COMPANY, and EMPU»V- 
EKS' LIABILITY ASSURANCK COMPANY. LTD. (a corpobation ) , 
DrfradniiU. 

Pboxihate CAfSE — Illness Costb.\ctkd Sitb3E(j17Ent to Accident — Illness 
Caused at Inactivity While Disabled. — A BUbSByupnt illness caused by 
overeaCiiiK. [ndigmlion and unwouled innctivit; following injury can not be 
connectod with sucfh injury by the Inw of cause and pff&rt and tlie employer 
and tlie employer's jncuronpe carrier are aol liable thprefor. 

Medical akd SLRoirAi. ATTt:NTioN~I.«ss of ItionT to Fuhsish nv F.mpijjter— 
Liability ok EMri.OYEa. — Where Iho emi)loyer'n foreman ban knowledge of the 
injury on the day it happeued. Saturday, but no steps are taken od the part of 
the defendants to furnish medical attentjou until the following Monday and the 
injured man has, in the meantime, secured the services of another physician 
wlio continues to treat him until his cure, the defendantij must pay the reason- 
able value of the Kervices rendered by such physician. While the law gives the 
employer the riitht to seWt the phyxician it gives him no right to sleep ujion that 
right. If he does not furnish medical attention "seasonably" the employee may 
secure medical attention at the expense of the employer. 

Medical and Suroical Attention — Reasonable Value of— How Determined. — 
Where it is the duty of the employer to pay the reasonable value of medical 
services rendered the employee by a physician called in by the latter, what con- 
stitutes such reasonable value is to be determined in the event of a disagreement 
by the medical director of the Commission. 

Permanent Disability. — Evidence held to show that applicant had received no 
permanent diaabiliiy. 

Claim for enmponsation on awouiit of Imrns received by the applicant 
in falling from a ladder while carrying a hncket of boiling asphalt to the 
roof of a building under constnieti<m. Applicant claimed compensation 
for a total temporary disability and a probable forty per cent permanent 
disability and medical expenses. Medical testimony showed that there 
was no permanent disability. Compensation was awarded in the sum of 
$50.64 for temporary total disability for six weeks, and the defendants 
were ordered to pay in addition the reasonable value of medical and 
surgical charges for services rendered the applicant. 
A. R. Simpson, in propria persons, for Applicant. 
IT. C. Hunlinglon, attorney, for Defendants. 

On the 31st day of January. 191-1, the applicant in this ease. A. R. 
Simpson, sufPered the burnin}!: of his hands and wrists and one foot by 
falling from a ladder with a bucket of hot tar in his hand. His burns 
at first seemed to be serious hut proved to be mainly superficial, and 
by the 28th of Jfareh, according to competent medical testimony, his 
wounds had so far liealed that he was able to return to the work of an 
ordinary manual hilmrer. to whi.'h calling he belonged. He was, how- 
ever, fearful of having sustained pennancnt injury, and claimed a \n-r- 
manent disability indemnity, liy agreement, the nature and extent of 



Goo'^ Ic 



Industrial accident commission decisions. i i 

the injuries were sulmiitled to medical referees, in whieli refereiiee there 
participated Dr. A. Ilalden Jones, Dr. Paul Brcsee, and Dr. ('. II. Whit- 
man, the latter of whom represented this Commission, The nnaninjous 
conclusion of the referees was that there was no permanent impairment 
of function by reason of the effects of the injury, and that the redness 
consequent upon the burns will practically pass away within a few 
months. Applicant was ill at the time of the hearinjr and the Commis- 
sioner conduetin;; the hearing went to the hospital where applicant was 
heins treated and took his testimony with relation to the injury. There 
was some attempt to connect his subKcqnent illnes.s with the injuries in- 
flicted by the aeeident in relation of cause to effect, hut there was little 
or no evidence to support such attempt. Applicant seems to have fallen 
ill through overeating, indigestion and unwonted inactivity following 
the injury, for which his employer and his employer's insurance carrier 
can not be held responsible. Consequently, this Commission finds that 
applicant is entitled to a temporary total disability indemnity for six 
weeks, amounting in ail to fifty dollars and sixty-four cents ($50.64), 
which has lieen fully paid by the insurance carrier, but this ('ommission 
finds also that the applicant is entitled to the reasonable east of the 
medical and surgical treatment furnished to cure and relieve him from 
the effects of the injury. His employer's foreman in charize of the work 
had knowledge of the injury on the day that it happened, Saturday, but 
no steps were taken to furnish him with medical or surgical treatment 
until the following Monday. Meantime he had himself secured the 
services of Dr. II. J. Andrews, who continued to treat him until his cure. 
While the law gives the employer the right to seli»ct the physician, it 
gives him no right to sleep on that right, and. in our judjiment, in 
waiting from Saturday evening until Monday before furnishing medical 
attendance, the furnishing thereof was not "seasonable" within the 
meaning of this act. and the defendants should pay the reasonable value 
of the services rendered by Dr. Andrews, -such value, in the event of 
disagreement between the parties, to be submitted to the medical din-ctor 
of this Commission for determination. 

A. J. PlLLSBl-RV, 

Wu.i, J. French, 

Cfimmisnitmrrs. 



NOTB.— On Jiinp :oth an .^pplil■n 


tinn Inr r^lipnrlnK wiis fllprt In tlii 


(ippMonnl. the s.im. h..inK Knmteii 1 


.y t1.e Cammlwilon on June .lUh. '] 


lukcn on Joly ». IHH. im<l riirtlM- 




i-KhiiuHtlve <nv<'BilK'ill<»iH tlip Comni 


iHsinn, on Nnvi'mber 7, 1S11. ren'ifr 


.■rmflrailng Ihe orlulnal flnillnKS "ml 


iiuaril. the folluwInK uplnfun iH'tnit 



On the 31st day of January, 1!IU. the applicant in this case, A. R. 
Simpson, suffered the burning of his hands and wrists, and one foot, 
and some injury to his hack, by falling from a ladder with a bucket of 
hot tar in his hand. lie demanded compensation for a permanent 

CnOO^^IC 



78 INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 

disability, which he rated at forty per tent of total. Said demaail 
being refused, he did on the 4th day of April, 1!)14, file an appliea- 
tion with this C'ommisaion that the controversy be determined. Hear- 
ings were held and referees appointed, and the claim adjusted, and 
findings and award made on the 29th day of May. 1914, from which, 
on the 20th day of June, 1914, applicant applied for a rehearing on 
sundry grounds not necessary to be set forth in this opinion. Said 
rehearing was held at the offices of the Commission at 606 South Hill 
street, Los Angeles, on Thursday, the 9th day of July, 1914. Present : 
A. J. Pillsbury, memher of said Commission. Evidence was intro- 
duced by alt of the parties, and the cause submitted for decision at 
SHcli time as certain X-ray photographs taken by order of the Com- 
mission should l>e examined and pasN^'d upon and written reports 
made thereon to said Commission at its offices in San Francisco. Such 
ri'ports were nm<le as follows : 

September 10th, by Dr. A. Hahlem Jones; 

Septemlwr 10th, by Dr. H. J. Andrews; 

Octolwr 1st, by Dr. Richard C. McCioskey. 

Said r<'i)orts having been fully considered, the decision of the Com- 
mission in said cause was rendered as set forth in the order confirming 
the original findings an(^ award made in this case. 

The claims of applicant made at this rehearing witc substantially as 
follows: 

That there exists a measure of permanent disability by reason of the 
shrinkage of the scar tissue between the fingers of the right hand and 
upon the wrist of said hand, where there exists a stwond degree burn 
covering aliout four sijuan' inches of space, and further, that a total 
temporary disability, with hospital treatment, as the result of the 
injury, lasted from the 4tb of April until the 9th of May, 1914, for 
which di8)d)ilily and medical and hospital treatment payment was 
(leTnanded of the defeiulant herein, and refused. 

After carefully consitk'Hng the evi(]eiice, this Commission is unable 
to find that the sickness which befell applicant on or aliout the 4th of 
April, and which continued for several weeks thereafter, was conse- 
unent npon the accident of January 31, 1914; likewise the evidence 
has been insufficient to establish as a fact that there will be any perma- 
nent disaltility resulting from the injuries sustained on January 31, 
1914, or any disability, total or partial, lasting I>eyond the 28th of 
March, 1914. 

The case bus been somewhat obscure, but in striving to reach a just 
conclusion, evidence of not less than five physicians and surgeons of 
standing has been taken, and many examinations have been made, and 
the Commission cannot do otherwise than to rely upon the concensus 
of opinion of these physicians as to the history of the injuries and 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS, 79 

siekiiess from which applicant undoubtedly suffered, but while he has 
Bu£Eered much, the Commission can not see its way elear to attribute any 
considerable portion of his suffering to the accident complained of as 
happening on the Jtlst day of January, 1914. Ilis sickness does not, 
in our judgment, bear to that injury the relation of effect to cause, 
but the injury is at most no more than a coineident and most indi- 
rect circumstance remotely connective with the original injury. 

A. J. PlLLSBUKY, 

Will J. French, 
Harris "Weinstock, 
Commissioners. 



(No. 47— May 21, 1914.) 

(Chaiiter 176, Laws 1913.) 
JAMES ARTHUR ARNOLD, Apptk-aui. V8. LEWIS & QUINLAX, nefcndantt. 
James Arthur Arnold, in propria persona, for Applicant. 
M. Letvis, for Defendants. 
This is an application for compensation by James Arthur Arnold, 
who had been employed as a porter in the saloon of the defendants, and 
while in such employment had gotten a piece of glass into his finger, 
causing an abscess of the finger and of the hand, and obliging applicant 
to lose approximately a month's working time. The only controversy 
was as to whether the accident occurred before or after January 1, 1914, 
at which date the Workmen's Compensation, Insurance and Safety Act 
went into effect. Upon this there was a direct conflict in the evidence. 
The Commission found that the accident occurred on or about January 
6, 1914, and awarded the sum of seventeen dollars and forty cents 
($17.40) for temporary total disability, also requiring the defendants 
to pay the reasonable value of medii^al and surgical services rendered to 
the applicant to relieve him of his disability. 

II. L. White, 
Secrelary. 

(No. 139— May 25, 1914.) 

(Chapter I"6, Laws 1913.) 

C. W. OGILVIE, Appli,-aai, vs. J. II. EdAN. (ikung blsinkhs usriKR TUt; namk 

AWD STYLE OF FRESNO STKAM LAUNDRY (X).Ml'ANY). JhfcndaiiL 

CoDBSB or Employment— Retu UN INC Home at Night. — Where a lautadi? driver 
after putting up his learn for (he nUbC is ridiug home on his bicycle and is in- 
jured by being run into by an niUomobtte. such injury cannot be said to have 
been received "while performinit sciricts growing out of and incidental to his 
employment." nor can he be said to have U't'n acliug "within tiie coiirse-of hia 
employment as such" at Bueb lime as required by (iie statute. He is therefore 
not eutitled to compensation. 



80 INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 

CouBSK OF Employmknt— Retubnino Home at Niqht — Occasional Sebtices fob 
KuPLovEB APTtB Hours. — Wbere a laundry driver ia aocuBtomed, after putting 
up his team for the nieht to gather or leave laundry at residences while riding 
home on his bicycle, but nes Dot in fact so gatberiug or leftvigg laundry oa the 
erening whea he was struck by an automobile, such accident can not be said Co 
have been received while acting in the course of his employment. 

CouESF, or KMPLotMEM — Retubnino Home at Nwht — Doing Wobk FOB Eii- 
PLOYF.B At Home At Night fob Cosveniescb of Bmpix)tee.— Where a laundry 
driver is accustomed for his own couvenience to talie his employer's account 
books home with him at night for the purpose of narking on tbem, instead of 
workiQG on them at bis emplo}'er'a place of business where desk room is fur- 
nished for that purpose, such employee can not be said to be engaged Id perform- 
ing services growing out of end incidental to his employment while in tbe act 
of so going borne at night with said books. 

Application for compensation for injuries received in collision with 
an automobile. Tlie facts are stated in the opinion. Compensation was 
denied for tlie reason that at the time of the accident the injured em- 
ployee was not performing a service growing out of or incidental to his 
employment. 

Barbovr tC Cashin, attorneys, for Applicant. 
George Cosgrave, attorney, for Defendant. 

About 5.50 o'eloek p. m. on Friday, the 20th day of March, 1914, the 
applicant in this case, C. W. Ogilvie, was riding a bicycle on one of the 
streets of Fresno and was struck by an antomohile and quite seriously 
injured. Ho was employed as driver for a laundry wagon and was in 
the service of the Fresno Steam Laundry Company, owned by J. H. 
Egan, the defendant in this proceeding. Applicant, at the time of the 
injury, had put up the team at the livery stable where it was kept and 
was on his way to his home, but was carrying with him his laundry book 
and the corresponding Iwok of the laundry company, for the purpose of 
making the necessary entries of transactions for that day. It was the 
custom of applicant to carry these books home and to do the work of 
entering them up at his home, although desk room for doing such work 
is furnished at the laundry where the work could be done and sometimes 

done. Taking the Iwoks home was a matter purely for the conven- 
ience of the laundry driver and no part of his duty under his contract 
of hire. The issue in this case is as to whether or not, at the time of the 
injurj", the applicant was under the protection of the Workmen's Com- 
pensation, Insurance and Safety Act. 

In order to be under the protection of said act, section 12, subsection 
(«), paragraph 2, it is imperative that "at the time of the accident the 
tiinployee is i)erforming service growing out of and incidental to his 
employment and is acting within the course of his employment as such." 
There are here three coordinate retpiirements r 

1. TImt, at the time of the accident, the employee must I)e performing 
a service gnuviug out of his eiii])loyiiicnt. 

i:ni,-r:-,G00'^lc 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 81 

2. That the service being performod must be incidental to his em- 
ployment. 

3. That, at the time of the accident, the employee is acting within 
the course of his employment as such employment. 

It is quite clear that, in taking his books home to write them up, the 
applicant was performing a service, in a sense, incidental to his em- 
ployment. If he had not been a laundry driver he would have had no 
need to write up the books, but being a laundry driver it was essential 
that the books be written up. Therefore, the writing up of the books 
was incidental to the employment, but the taking of them home to write 
them up was not necessarily so. That was a matter involving his own 
convenience. He could have done that at the office where facilities for 
doing it were furnished him, but if he chose to do it at his own home 
instead, tliat was for his own purposes and was not incidental to his 
employment. • 

In a similar sense, it may be said that, in writing up his books, he was 
performing a service growing out of his employment, but not neces- 
sarily so in taking them home to be written up. At the time of his 
injury he was not engaged in writing up the books. He was engaged in 
going home and that was for his own purposes and not for those of his 
employer. He had finished the day's work that he was obligated to per- 
form when he put up his team, and whether or not he had had his em- 
ployer's books with him he would, in the normal course of events, have 
been just where he was when he was struck by the automobile and 
probably would have been struck just the same. His day ended when 
he left the livery stable, where his team was put up, and started for his 
home. The fact that he had his books with him did not take him out of 
his course or in any manner change his home-going when his work was 
done, and, in conformity with the general rule adopted in practically 
all countries in such eases, he was under the protection of the act only 
BO long as he was engaged in the service of his employer. He began that 
service when be took his team out of the barn and he ended it when he 
put his team up in the barn. Thereafter his actions were governed 
solely with an eye to his own convenience. 

Finally, he was not, at the time of .the accident "acting within the 
course of his employment as such." The course of his employment 
ended when he put up his team and started for his home in conformity 
with the almost universal rule above stated. Now, this rule is not in- 
tended to be arbitrary so that it can not be modified by changed cir- 
cumstances. If he had had bundles of laundry to deliver on his way 
home or other errands to perform for the benefit of and with implied in- 
structions from his cmpioypr, he might lie held to be still in the course of 
liis employment, although these errands were being performed while on 
his way home, liut, in this case, tlie evidence is clear that the taking of 
o-u-iiraB ChX^^Ic 



32 INDUSTRIAL ACCIDENT CX>HMISSION DECIStONS. 

his books home to be written up at home was not at all for the eon- 
venienee of his employer, but for liis own convenience. Therefore, we 
must hold applicable to this case the general rule that, in going to and 
coming from one's place of employment, one is at his own risk and not 
under the protection of the Workmen's Compensation, Insurance and 
Safety Act, 

A. J. PiLlBBUEY, 

Will J. Pebnch, 
H. Weikstock, 

Commissioners. 



(No. 116— May 27, 1914.) 

(Clinpter !7C. Lava 1913.) 



Pboxiuate Cause— Sobsbquekt Death pbou Beaut TBOUBt:.E Aocelebated Bt 
Indubtbial Accident. — Where the death of employee from heart disease Is 
certain to occur witbin a comparatively short time, and eucb death is hastened 
by a fall received by tbe employee ia the course of his employment, but no symp- 
toms of heart shock appear until nine days after the fall and after tbe noticeable 
physical injiiriPK caused by the accident are hnaled, such accident can not be said 
to be the proiimate cause of tbe death, and the industry is not chargeable wltb 
tbe death benefit therefor. 

Proximate Caitse of Dbatu— Test Stateo.— That which following in a natnral 
and continuous sequence, unbroken hy any new causf. produces an event and 
without whieh the event would not have occurred, is the proximate canse of 
such event. Where the event is certain without the occurrence of tbe accidental 
injury, audi injury is not a proximate cause of the I'vcnt (death), even though 
it accelerated it. 

This ia un application by a widow for death benefits. The facts are 
stated in the opinion. The application was denied on the ground that 
the injury received in the course of the employment of the deceased 
was not established as a proximate cause of the subsequent deatb. 
P. H. Waldman, for Applicant. 

A. Wiitrand, adjuster of the defendant Employers' Liability As- 
surance Corporation, Limited, for Defendants. 

C, L. Waldman, a tailor at Ftesno, on tbe 3d day of March, 1914, in 
coming downstairs in the shop where he worked, fdl down the stairs a 
distance of ten feet, hurting his right knee and spraining his left ankle, 
lie was sixty-nine years of age at the time, was a good deal shaken up 
by the accident and much perturbed in spirit, believing that he had 
narrowly escaped death. The accident happened on Thursday, he re- ■ 
turned to work on ftfondaj' and worked a day and a half and then quit. 
On the 9th of March his physician discharged him as cured. 

On the 12th of Jfareh he was taken with what is commonly known as 
angina pectoris and suffered severely. He did not altogether recover 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS, Od 

from this trouble prior to April 1st, when in turning to go into another 
room, he fell over deatl. An autopsy was held and the sui^eon found, 
among other things, an adherent condition over an area of one square 
inch over the left ventricle, an old and ehronie adhesion ; a blood clot 
which, in the opinion of the surgeon, could not have been formed over* 
twenty -four hours before death; heart very friable; decomposition of 
the heart muscles, which, in the opinion of the autopsy surgeon, could 
not have taken place within recent years and may have been of fifteen 
or twenty years' standing. It was a mystery, the surgeon and his 
assistant declared, how deceased could have continued to exist as long 
as he had. 

This proceeding was inaugurated by Amalie Waldman, widow of de- 
ceased, who claimed the full death benefit of one wholly dependent, on 
the ground that the accident of falling downstairs on the 3d of March 
was the proximate cause of the death on the first day of April. 

The issue raised is not easy of determination. There is good medical 
authority for the statement that, given a man whose heart is, as in this 
case, in an advanced stage of decomposition, anything that will put 
him to bed, there to remain for a few days, may result in his death. 
Should the industry be chargeable with such abnormal consequences t 
The actual, physical injuries which C. L. Waldman sustained as the 
proximate result of his fall were entirely well in less than one week, but 
it is not impossible that, his heart being in the condition that it was in, 
the shock or shaking-up and the breaking in upon the routine of his 
life, may have accelerated the inevitable culmination of his heart disease 
and so hastened his death; but, again, should the industry in which he 
was engaged be chargeable with an entire death benefit of three times 
the average annual earnings when the most that the accident could have 
done was to hasten the culmination by a few days or weeks or perhaps 
months t 

After careful deliberation this Commission thinks that the industry 
should not be so chargeable ; that in such cases it can not reasonably and 
fairly be said that the accident was the proximate, cause of the death, 
■ 'that is, "that which, folloning in a natural and continuoim sequence, 
unbroken by any new cause, produces an event and without which the 
event would not have occurred." In this case the event was certain 
without this accident, and the mystery is that it had not occurred be- 
fore. For the foregoing reason tlie death benefit is denied in this case. 

A. J. PiLLSBURT, 

"Will J. French, 
H. "Weinstock, 

Commission e rs . 



D.gitizecbyG00glc 



mDUSTBIAL ACCIDENT COMMISSION DECISIONS. 

(No. 19— May 29, 1914.) 

(Chapter 1T6, Laws 1313.) 



AN SPKNCPIR. Applkant. v 
CASHIRE GUARANTKE 
TIOn), DefenAanU. 



a at partial dependenoy 



Barry J. Colding, attorney, for defendant London and Lancashire 
Guarantee and Accident Company, which was substitut*^] on re- 
i(TH'st for defendant Xi-il ^leLoan. 

The applicant is the minor son of William Harvey Spencer, a car- 
penter, who was injured by accident on the 31st day of January, 1914, 
while working in the course of his employment as a carpenter under 
defendant, McLean, and died within a few days thereafter as a result 
of his injuries. The only issues in controversy related to the right of a 
son to receive compensation. The evidence showed that the applicant 
was nineteen years of age at the time of the death of his father; was 
living with his grandparents in Michigan (his mother being divorced 
and remarried), and was attending school and doing chores for his 
I>oard and room; that his father had been accustomed to send him 
money from time to time to pay for hb schooling, and had sent him an 
average sum of sixty-fi^'c dollars ($65.00) per year for the past two 
years for such purpose; that the son was in moderate health only; that 
he was not earning his living, but was accustomed to work during the 
summer to help put himself through school. 

Upon this showing, it was decided that the applicant was partially 
dependent upon his father for support, and that for the past two years 
the father had applied four and one third per cent (4i%) of his annual 
earnings for such support and education of the applicant. An award 
was therefore made of one hundred and ninety-five dollars ($195.00) 
as a death benefit, payable in three annual installments, this sum being 
four and one third per cent (4/,'/' ) of three times the average annual 
earnings of the deceased. 

IL L. WnrTE, 
Secretary. 



D.gitizecbyG00glc 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 85 

(No. 115— May 29, 1914.) 

(Chapter 176, Laws 1913.) 

>KIJ UNITED 
ttdanU. 

Barnardo Campilongo, in propria persona, for Applicant. 
T. A. Scadden and P. F. Bell, attorneys, for defendant United 
States Fidelity and Guaranty Company, which was substituted 
by request for defendant Myer Friedman. 
This is an application for compensation for loss of time and for 
medical expenses caused by a fall received by the applicant while work- 
ing at his employment as janitor. Applicant sustained a broken wrist 
and was unable to work for seven weeks. The sole defense offered was 
that the applicant was intoxicated at the time of the fall and that such 
fall was due to said intoxication. Upon this issue, there was a sharp 
conflict in the evidence. The ComTuission found that the applicant was 
not intoxicated, and compensation was awarded in the sum of forty- 
seven dollars and fifty-seven cents ($47.57) for five and two sevenths 
weeks' total temporary disability. Applicant was also held to be en- 
titled to have paid on his behalf the reasonable medical and surgical 
charges for services rendered to cure and relieve him from the conse- 
quences of the injury. 

H. L. White, 
Secretary. 



(No. 109— May 29, 1914.) 

(Chapter 178, Lawa 1913,) 

W. J. ROSE, Applicant, vs. CHARLES PICKRELL, Defendant. 

r Contractor — Test or — Mode or I'.iiuent Not Conclusive. — The 
fact that applicant was paid for bis norfc at tbe rate of eighteen cents (or 
ever; tie cut by him is not hy it!i»lf conclusive that Ihe appticnnt is HQ inde- 
pendent contractor. Such mode of payment is entirely coDsistent with bis being 
an employee upon a piece work basis as well as with bis being an independent 



Indrpendent (^ntbactob — Test of— Employment op Laborebs By Applicant 

ON Hia Own Account.- — Where the applicant was engaged to cut ties at a cer- 
tain price per tie upon land of the defendant, the fact that the applicant was at 
liberty to employ and did employ labor on bis own account witbout tbe consent 
of the owner of the land and without Ihe land owner having any control over 
the men so employed or ot the hours of labor of tbe applicant himself, is con- 
clusive of the applicant's lieine nn iudepeiidfnt c<>ntrnclor and not an em- 
ployee of Ihe defendant. 

riaim for compensation for the loss of an eye sustained by applicant 
while cutting ties for the defendant. The facts are stated in the 
opinion. The pole defense raised by tlie answer was that the apolicant 



D.gitizecbyG00glc 



S6 INDUSTBIAL ACCIDENT COMMISSION DECISIONS. 

was not an employee but an independent contractor. The Industrial 
Accident Commission held the applicant to be an independent con- 
tractor and denied the application, 

. W. J. Rose, in propria persona, for Applicant. 
Charles Pickrell, in propria persona, for Defendant. 

Charles Pickrell, the defendant herein, had acquired stuinpage rights 
of Andrew filarkham, a landowner in Sonoma County, for the purpose 
of cutting piles and ties and had arranged with W. J. Rose, the appli- 
cant herein, to take a certain space to cut over, technically known as a 
"layout." Applicant was to cut at his own convenience and to hire 
whom he pleased to help hira cut, provided only that the timber be cut 
economically. Rose was to receive eighteen cents per tie and he hired 
some help in getting ties cut. 

On the 21st of February, 1!)14, a particle of steel flew off a wedge he 
was striking and struck him in the eye, so injuring it that the eye had 
to be taken out. On the 4th of April, he began this proceeding to obtain 
compensation, claiming that he was an employ of said Pickrell. The 
proceeding is resisted on the ground that Rose was not in fact an em- 
ployee of said Pickrell, but that be was an independent contractor. 

The issue is one of some nicety. If Rose had been employed by Pick- 
rell merely to make ties for him at eighteen centa each it would be en- 
tirely reasonable to hold that he was an employee of Pickrell working 
on a piece-work basis, but the fact that he was at liberty to employ, and 
did employ, labor on his own account, without the consent of Pickrell 
and without Pickrell having any control over the men so employed, or 
the work of Rose himself, is conclusive that Rose was an independent 
contractor, and we therefore hold that he was such independent con- 
tractor and not an employee of Pickrell within the meaning of the act. 

We think that, had one of Rose's men been injured instead of Rose 
himself, Pickrell would have been liable to such injured man as prin- 
cipal in the event that Rose were insolvent and unable to pay the com- 
pensation due sucli injured employee, but such liability does not accrue 
to Rose who, as we have found, was an independent contractor and 
not an employee of Pickrell. 

A, J. PlU-SBUBY, 

Will J, French, 
H, Weinstock, 

C ommission e rs . 



D.gitizecbyG00glc 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 

(No. 113— May 29, 1914.) 

(Chapter ITS, Laws 1913.) 



Marlin Stevens, attorney, for Applicant. 
Corbet & Sdby, attorneys, for Defendant. 

This is an application by the widow of John K. Panak(^, on behalf 
of herself, minor children, and the father and mother of deceased, for 
a death benefit. Applicant and all of the dependents named reside in 
Greece. Deceased was employed at the time of his death by defendant 
railroad company as a day laborer and was killed by a falling rock 
while helping to clear away a landslide on defendant's tracks. It was 
stipulated at the hearing that applicant was the only person wholly 
dependent upon the deceased for support. 

The principal controversy was over the average annual earnings of 
decedent, the evidence showing that he had been employed by the 
defendant company but a few weeks before his injury, that he had 
been paid $1.75 per day and overtime of time and a half, that he had 
put in a large amount of overtime and had worked every Sunday 
because of washouts and other emergency work, and that it was 
customary for the defendant to work its men at least two Sundays in 
the month at all times of the year. The Commission found the average 
annual earnings of deceased to be tlie sum of five hundred eighty-five 
dollars ($585.00), and awarded a death benefit to the widow of one 
thousand seven hundred fifly-five dollars ($1,755.00), less the reasonable 
cost of burial of said Panakos (paid by defendant), not to exceed one 
himdred dollars ($100,00) ; payments of the death benefit to be made 
monthly to applicant at the rate of seven dollars and thirty-one cents 
($7.31) per week until paid. 

H. L. White, 
Secretary. 

NoTB.— UmliT dull' of Jiiiip ;4. lail. iiii iippll.iiliim w:ib m.i<lr fi>r llie lammiitiitlon 
■IcayliiB the rniucBl. 

(No. 60~May 2i), 1914.) 

(Chapter 176, Laws 1913,) 



irRSE OF FImpixiymkst— All iiiKNT.M. I.v.iCRV. — WhptP an empln.vec Is Ir 
with pimplpR, and at hix ntiin'sl a fflluw emplnyi-e oppus a pimple 
unHanitar; manner rcsnltini; in i)ioo(l poisoning, aut^h injury is not llie 
«[ an accidpnt n'reivpil in lliv nnirsp of <-m ploy men t, 



D.oiiiz.owGoogle 



88 INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 

BUKI>K> OK rWHlF — rHEPONDERANCE OK KvIUENCE. — Au Hllplkotlt fur COinpCllH«tion 

for diBability causPd by accidental injury must prove his claim hy a preiionder- 
. ance of the testimony. 

Application for c-ompeusation for disability due to blood poisoning 
rtH-eived through an infected wound upon applit^unt'^ third finger of 
the right band, it was claimed that the cut or wound was received 
while performing services incidental to his employment as a laborer by 
defendant company. Tlie facts are stated in the opinion. The pre- 
ponderance of evidence showed that the disability was not proximately 
caused by accident incurred in the course ol the ejiiploynient, and the 
application was therefore denied. 

Aliiiio Ifndriqucs Kebclln, in propi-ia jirmoiin, for Applicant. 
Defendant, AFarin Comity Milk Producers, Inc., appeared by its 
officers. 

The applicant wa-s tmiploycd as a Rcncral workman in the plant of 
th(> defendant in the city of San Francisco. lie claims that on Jan- 
uary 16, 1014, while he was handling broken boxes and milk bottles 
he sustained a cut on the third finger of his right bund by coming in 
contact with broken glass; that blood poison supervened, causing a 
very serious condition. There can be no doubt that the applicant was 
a victim of blood poisoning and that he came very near losing his life, 
lie was confined for a period of more than six weeks in a hospital 
in Oakland and has been at great expense for medical and sui^eal 
treatment and hospital service. 

The evidence of the applicant as to his having suffered the injury in 
the manner stated is substantially the only testimony in the case upon 
that point. It appear.* that no one saw him sustain the injury and 
that he did not complain of his hand having been cut until some weeks 
after his condition became serious. His testimony was not corroborated 
by that of his fellow employees working with hiin at the time, nor by 
the medical testimony on the part of the doctors who treated him. 
On the contrary, it appears by the testimony that the applicant had a 
])implc on his finger and that at his re<iueMt one of his fellow employees 
clipped the pimple off or ojiened it with a pair of scissors used in the 
work of the dairy, at or about the time he claims to have been injured. 
There is some conflict in the testimony with reference to the exact 
location of the pimple which was removed or opened in this rash and 
higlily dangerous manner, hut on the whole the weight of the testi- 
mony tends most slroufjty to show the location of the pimple at the seat 
of the trouble. 

An applicant for comiiensalion for a disability caused by accidental 
injury must prove bis claim by a preponderance of the testimony. In 
view of all the circumstances in connection with this claim, and after 



DaitizecbyGoO'^lc 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 89 

carefully weighing the totimoriy produced l>y both parties, it is the 
opioion of the Commission that the applicant has fallen short of proving 
that the serious injury suffered liy him, with its train of serious con- 
sequences, was proximately caused by accident. The evidence is 
strongly persuasive that the injury and its consequences were the 
result of the applicant's voluntary exposure to danger in the shocking 
process of treating a minor ailment in the manner above described. 
Compensation, therefore, has been denied. 

A. J. Pii.i.sbi:by, 
Will J. French, 
Harris Weinstock, 
Commissioners. 

(No. 66— May 29, 1914.) 

(CImptPr ITS. LiiH's 1913,) 



Course of EMPi.oruENT — Slkviceh iNcinKN'TAi. to Kufiayme-n' 

Services Kendebeu Fokeman by Kuployee Akteb Wobki.no HouRS.^Where 
a foreman in tbe pmploy of dpCotxlaut is thp iiwupr of a burxe which he krciis 
with him while at work, occasionally using it in the comiwny's business, but 
is not rciiuiretl to furnish or uhp a horsp, aud the said burse is fed and, shod at 
the company's expense, and where, (be foreman forgeltiu^ to brine it across a 
certain creek to the camp during working hours, an em|)loy(H> of the comimny 
volnnteers in the evening lo bring it over, and is accidenlally drowned while 
carrying out this errand, helil, by CommiNsionerB French and Weinstock, that 
HUch dfHtb did not occur while di'ceased was reudering services incidental to 
or growing out of his employment. 

Commissioner rillsbnry dissented, on the ground that the ownership of the 
liorse was immaterial so long as it was being used in the compnny's business; 
(hat (he errand was desired by the foreman, and tlic employee not in a 
position to (iiiestion him as to whether it was within the line of his duties or 
not. and that it is also immaterial whethiT deeensitl volunteereil to perform the 
errand or was instructed to do so, as in either case he whs complying with 
an expressed wish of his foreman. 

Claim by the father of the deceased for a death benefit for the 
accidental drowning of his son, Orion Wood, while cro-sing a danger- 
ous creek npon an errand for his foreman alleged to have been ordered 
in the course of his employment. Deceased was sixteen years of age 
and employed as a roustabout and driver by defendant Chieo Con- 
struction Company. The facts are stated in the opinion.^. The 
Commission unanimously agreed that applicant was shown not to be 
dependent iipon his deceased son for support and therefore not entitled 
to a death benefit. A majority of the Commission further found that 
at the time of the accident, deceased was not engaged in performing 



D.gitizecbyG00glc 



90 INDUSTBIAL ACCIDENT COMMISSION DECISIONS. 

services arising out of, or incidental to, his employment, and that the 
applicant, therefore, was not entitled to have defendants reimburse 
him for the funeral expenses. 

Joseph Wood, in propria persona, for Applicant. 
K. P. M'isccarver, attorney, for Defendants. 

Orion Wood, son of Joseph Wood, the applicant herein, was drowned 
on the 21st day of January, 1914. The issue as to whether the fatality 
was connected with the employment is close. Orion Wood was sent 
at the conclusion of a rainy day, about 5.45 p. m. and after supper, for 
Foreman J. C. Blanton's horse, which bad been left in a tent across 
Dry Creek, Yuba County. This horse was not the property of the 
Chieo Construction Company, one of the defendants herein. It 
belonged to Foreman Bianton. He remarked that he would have to 
go aftpr his horsii. Orion Wood spoke up and said he would go instead. 
Bianton consented, and re(|uested Wood to bring him a bottle of 
whiskey from the store. 

The inclement weather had interfered with the men working on 
January 21st, and there is, unfortunately, sufficient evidence to show 
that Foreman Bianton was partially intoxicated. This condition was 
probably the caase of Wood's untimely death, for it was dark when 
the horse was remembered, and the order for more whiskey was 
coupled with the thought of the animal. 

It is very much to be regretted that a sixteen year old boy should 
have been sent out on such a night, after dark, on two such errands. 
The stream Wood had to cross was badly swollen and undoubtedly 
dangerous under the circumstances. 

The working hours for the employees of the Chieo Construction 
Company were from 7 o'clock in the morning until 5 o'clock in the 
afternoon. The death occurred after these hours had elapsed. The 
horse was private projtcrty, even though it had been used by Bianton 
while engaged in the company's business. Bianton testified that he 
was not re»|uired by the company to have a horse on the work, adding: 
"At the time the boy lest his life he was on my own business." The 
company paid for shoeing the horse on one occasion, and provided it 
with feed, but ownership was lacking. Bianton further testified that 
the company paid for overtime when any of the employees worked 
overtime, but tJiat Orion Wood could not be allowed pay for the per- 
sonal service he was performing at the time of death. 

The law calls for compensation paynienls when the death or accident 
arises "out of and in the course of the employment." It is true that 
this condition can .sometimes prevail after the regular working hours 
have passed. In this case there are the factors in defendant's favor of 



D.gitizecbyG00glc 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS, * i)! 

lack of ownership of the horse, the evening hour after the ponclusion 
of what would have been the day's work had the weather permitted, 
and that it was shown no order had been given by Foreman Blanton, 
but rather that the boy had willingly volunteered after Blanton had 
declared his intention of proceeding for his horse. 

For the reasons here given, we find for the defendants. 

Will J. Pbbncii, 
Harris Weinstock, 
Commissioners. 

I dissent from the second finding in this cause and am of the 
opinion that the evidence is sufficient to establish as a fact that, at the 
time Orion "Wood went after Blanton 's liorse, he was performing a 
service arising out of and in the course of his employment and that 
applicant is entitled to receive from the defendants the reasonable cost 
of the burial of the deceased workman. 

Foreman Blanton testified that, although the horse belonged to htm, 
he was using it for the advantage of the Chico Construction Company 
and that that company both furnished feed for the horse and had it 
shod. The issue of ownership of the horse is wholly immaterial. 

Foreman Blanton also testified that Orion Wood was "helping in the 
work in general the same ai the others and whenever wanted was sent 
on errands," 

On the day following the death when Fred Yore asked who sent 
Orion across Dry Creek, Blanton spoke up and said, "I did." 

Blanton admits that he "consented" to have the boy go after the 
horse, whereas Timekeeper William Thunen states, in an affidavit, that 
Blanton "gave W^ood instructions to care for the horse." 

While Orion Wood had principally handled a "slip" scraper he 
was on the payroll as roustabout {so Thunen had told J. D. Low), and, 
on the day previous to his death, he had gone for the mail and had 
been given a ride across the creek by Louis N. Scott. 

That Foreman Blanton was under the influence of liquor that night 
was fully established, and he was in no condition to know whether he 
ordered, requested or merely "consented" that deceased go after his 
horse. 

But all of these more or leas technical issues are beside the point. 
The point is that on the night of January 21, 19U, Orion Wood was 
a boy of sixteen past. It was not for him, before he obeyed a command 
or request, or even obtained the "consent" of the foreman of the job, 
to inquire if the foreman were acting within the line of his duties or 
course of his employment. His duty was to obey, and failure to obey 
would very likely result in his dismissal from the force. lie was 
working for an education and it was important for him to secure and 



.Goo'^lc 



92 INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 

retain the good favor of his superior. And since when has the 
volunteering to perform a service within an employment taken an 
employee outside of the scope of his employment? 

The horse was used for the purposes of the joh, it needed to be 
cared for, and whether Orion Wood volunteered to care for it or was 
"instructed" to care for it is immaterial. The fact is that in earing 
for it he was coniplyinp with a wish of his foreman and was perform- 
ing a service growing out of and incidental to his employment. 

A. J. PiLLSBUEY, 

Commissioner. 
(No. 77— May 29, 1914.) 

(Chapter 176. Lhws 1913.) 

I'.VITKI) ST.iTES FinKLTTY AND GUARANTY COMPANY, ApiiUcaiil. vk. 
MAX ROSEKBACII, Dricndant, 

MEUICAI. ASD . SlIBOICAL EXPE.SSES— USBEABON ABLE EXPE.SDITUREH.^InjUriHl 

emi)loyL>e awnrdcd a wrtain aura to oovpr uiinlifal and siiririciil chsrKPH. mirairiK 
nnrl hoajiitnl servicp ; nnd expanses incurred by employee for Biich purposes in 
cxci'Rs of sum aw^nlcd dcclarpd unreasonable and not K>ven. 

T. A. Scarlden, agent, for Applicant. 
.Wax Hoseitbacli, in propria persona, for Defendant, 
Application by the insurance carrier of Mark Bros., Inc., to have 
adjusted the amount of compensation due defendant Rosenbach for 
disability caused by a hernia received while working in the course of 
his employment for said Mark Bros., Inc. The evidence showed that 
defendant was ruptured while lifting and moving a heavy tabic in his 
employer's place of business, that he was operated upon at a San 
Francisco hospital and incurred the following expenses in relieving 
himself from the ennsequencra of the injury: 

Oeneral doctor's bill J3 00 

I)o<:tor's fee for oiiuration _. 170 00 

IIuHpJtal charges Ill 00 

Cost of private nunw 120 00 

Handa)^ _ _ « 00 

The Commission awarded the defendant the sum of $61.61 com- 
{>(>nsation for temporary total disability and the reasonable value of 
medical and surgical services rendered or to be rendered defendant, 
not to exceed the sum of one hundred sevenly-one dollars ($171.00), 
including nursing and hospital expenses. Expenses incurred in addi- 
tion to this sum by det'i'ndant to the extent of two hundred thirty-nine 
dollars ($2.'i9.001 wece pronounced unreasonable and not a proper 
charge against the employer or his insurance carrier. 

H. L. White, 
Secretaru. 

D.gitizecbyG00glc 



Industrial accident commission decisions. 93 

(No, 91— May 29, 1914.) 

(Gliapler 176, Lawa laiJ.) 

MBS. KVELYN SECOIt. Applicant, vs. SICC^DRITY CONSTRUCTEON COM- 

I'ANY (A CORPOBATION). ANU TACIFIC SURtrrV COMPANY. DefcndanU. 

Arthur E. Dennis, attorney, for Applicant. 

-/. L. Brickcls, president of the Security Construction Company, 
for sufli company. 

}{. J. McNecly, claim adjuster, and J. Cridcr, attorney, for defend- 
ant Pacific Surety Company. 
Application for a death benefit. Applicant is the widow of Noe J. 
Secor, wlio was killed on February 5, 1914, by a fall from a tower on 
which he was working. Deceased was in the employment of the defend- 
ant Security Construction Company as a structural iron worker at 
the time of his death. The only question raised at the time of the 
hearing was as to the dependency of the applicant and a minor son 
whom the testimony seemed to show was the minor son of deceased by 
a former wife, and as to the rigiits of an unborn child of deceased and 
applicant. The evidence showed applicant and the said minor son to 
be wholly dependent upon deceased for support, and a total death 
benefit was therefore awarded of two thousand nine hundred twenty- 
five dollars ($2,!)25.00). Of this amount the sura of two thousand one 
hundred ninety-three dollars and seventy-five cents ($2,193.75) was 
given to the widow, and the sum of seven hundred thirty-one dollars 
and twenty-five cents ($731.25) was allotted to the minor son. An 
order was also made appointing the applicant Evelyu Secor as trustee 
for the minor son, and the whole sum of two thousand nine hundred 
twenty-five dollars ($2,925.00) made payable to her in her own right 
and as trustee, in the following installments : the sum of one hundred 
seventy-eight dollars and eighty-one cents ($178.81) upon notice of 
the rendition of this award, this amount being the present commuted 
worth of the final eighteen weekly payments of the award ; the 
remainder of the award being payable in weekly installments of 
twelve dollars and nineteen cents ($12.19) until paid. 

Properly to safeguard the rights of the unborn child of applicant 
and deceased, a finding of fact was incorporated in the findings and 
award to the effect that such child, to be bom in June or July, will be 
the child of applicant and deceased, and a legal dependent of the 
applicant within the meaning of the Workmen's Compensation, Insur- 
ance and Safety Act. 

H. L. White, 
Secretary. 

Note.— A w this v:>f<- li:.4 been m.i.le It appcirerl '"■il^'l;''^ ■[f'^'n^r 

by a former h fuili w.m not .■iimic<l to :i Piirt of the <l«ith Wn.-lll. 

ThprefoTT, th a w m n.l.i! r.>silni1lin,' Ilie oriler of the Commiantun ni.jH.lntlni; 

the uppllcan us sa tl niinur 

death benell of f J 9 B 



94 INDUSTRIAL AC!CIDENT COMMISSION DECISIONS. 

(No. 90— May 29, 1914.) 
(Chapter 176. Laws 1913.) 

SCOTl' (SOUDOX, Applicant, vh. D. A. EVANS. a.\d C. W. MUSICK, DefrndanU. 

DiBABiLiTV— Extent of— Mali noebi kg .—Where sirrmlatioQ or maliDgering by an 
applicant for compensation is alleged, the CummissioD will go to great paino and 
considerable expense to dctermiDe tlie Issue fairly to prevent fraud aod imposi- 
tion. Usually tbe Commission .will cause the applicant to be examined by 
experts of ibt own Heleclion in addition to the medical testimony presented by 
each side. 

DlMAHM.lTY — KXTKNT OF— Cakpentebs' FoBKMAN.^Wlicre B, cariHinters' foreman 
is siill able lo suiMTviHi' tlie work he is em[>lo)'ed upon but la unable as tli<> rwirit 
of accident tu use louls aud work witli those under him, he is under a partial 
disability. It is not Ki^nenilly or customarily true llial a cnriientpra' foreman is 
nol expected to UKe tools and only to superintend the work of carpenters und<'r 
him. WUilc this would be true of a suiierintendent of coualructioo on a large 
building, it is not genenilly (ruv of the foremau of a gang of carpenters. 

Disability— Ih ABILITY to F01.1.0W Ociupation Rnuaoed In at Tims or Ikjuby. — 
Nor is the term "disability" n»<(«sarily limited 16 a diaablement tor performing 
the particular work the injured person happened to be doing at the time of bis 
injury' It will be suflicieut if the injury resultjt In an impairment of earning 
power generally. 

Scale of Compensation — Avcbaoe A-nnual Eabmngh — How Calohlathi. — 
Where the injured employee has worked during subslantially tbe whole of the 
j'ear immediately preceding his injury in the same employment, whether for the 
same employer or not. the earnings for that year alone are to be taken aa the 
baxis for computing his average annual earnings (Workmeu's Compensation. 
Insurance and Safety Act, section 17 (a), paragraph 1). The fact that the 
earnings for such year are above or below normal can not be conaldereil. nor 
can his earnings for other ycarx be taken into account. 

Scale of Com pknsation^Di a ability fbou Si-'boical Opkbation Afteb RKNomoK 

OP AWABD — How COMPENHATEP — HBFUSAL TO SUBMIT TO OPEBATION. — Where 

it seems probable at the time of making the award that the applicant will 
require a aurgjcal operation thereafter to remove the disability, the award 
may provide that, upon such surgical operation being recommended by competent 
surgical authority and being undergone, the employer shall pay the reasonable 
•■^yi^ of such operation and a full disability benefit while applicant is wholly 
disabled aa a result of the operation, but if the applicant refuses to submit to 
such operation after its being so recommended, all disability payments shall 
eoase during the contlnuunce of such refusal. 

Application for compensjition for injuries to the right shoulder of 
the applicant caused l)y a fall from a scaffold while he was working 
as a carpenters' foreman in the employ of defendant Kvans, a con- 
tractiir. defendant Ihisick was joined by thn applicant because he was 
the owner of the lot where the building upon which applicant received 
his injury was being ereeted. The facts are stated in the opinion. 
Compensation was awarded in the sum of $83.32 for temporary total 
disability. A reasonable sum for medical and surgical expenses was 
ordered i)aid by the defendant and a further sum of $13.00 per week 
was awarded for temporary partial disability until the termination of 
said disability or the further order of tlie Commission. 

Ayiiesicorlk & Beaumont, attorneys, for Applicant. 

A. L. Brewster, attorney, for Defendants. GoOqIc 



INDUSTRIAL ACCIDENT COMMISSION OECISIOKS. 95 

Scott Gordon is, by oeeupation, a carpenters' foreman and for sev- 
eral years has been following his trade at Fresno, On February 19, 
1914, while standing on a box on a staging, attempting to tack a 
aash into a skylight, the box upon which he was standing overturned 
end precipitated him to the floor. As he fell he dragged down the 
side of the wall with his right arm uplifted, striking upon his feet. 
His arm only was injured. On the 7th of April he filed an application 
with this Commission claiming a disability indemnity. Defendants 
resist substantially on the following grounds : 

1. That the injury inflicted was superficial and insufficient to cause 
disability. 

2. That even if applicant suffered such a disability as would prevent 
him following the occupation of a carpenter, it would not prevent his 
following the occupation of carpenters' foreman, which occupation is 
one of superintendence only and does not require that such foreman 
use tools as a carpenter and work with the men under him on the job. 

3. That applicant is simulating and pretending to be more seriously 
injured than he is, and that, being unable to secure work at his trade, 
he is attempting by such simulation to mulct defendant Evans out of 
money for alleged injuries which do not exist. 

4. That the average annual earnings of applicant should be com- 
puted not alone in accordance with his earnings during the year 
immediately previous to the happening of the accident, but that other 
years should be taken into account in order to make a fair average 
within the meaning of the act. 

The determination of the nature and extent of the disablement in 
this ease has proven a matter of great subtlety and difficulty. As in 
all cases where simulation is charged against an applicant, this Com- 
mission has gone to great pains and considerable expense, in order to 
determine the issue fairly, for it recognizes that if, in such cases, fraud 
shall be permitted to succeed, the entire act will be discredited and 
great injustice done. Therefore, besides taking the testimony of 
physicians employed by both applicant and defendant and carefully 
analyzing their testimony, this Commission ordered a special examina- 
tion by a competent surgeon of Fresno of its own selection and, the 
report of that physician being in a measure inconclusive of the fact, this 
Commission had applicnnt summoned from Fresno and placed in a 
hospital in San Francisco under the observation of a noted expert with 
the result that it has been clearly detennined that a sul)stantial and 
deep-seated injury was suffered bj' the applicant, that he is not simulat- 
ing or malingering, and that an operation will probably he necessary 
to effect a permanent cure. 

It is not generally or customarily true, as claimed by defendant, that 
a carpenters' foreman is not expected to use tools, but only to superin- 
tend the work of carpenters under him. This would be true of a 



yf) INDUSTBIAI. ACCIRENT COMMISSION DECISIONS. 

superintendent of constnietion on a Inrge building, but not of the- 
I'oreman of a gang of carpenters. Therefore there was disability in this 
ease. Nor in the term "disability" neiessarily limited to a disablement 
for performing the particular work an injured per.-:on happened to be 
doing at the time of his injury. It will be sufficient if the injury 
results in an incapacity to earn. 

The statute, paragraph (1) section 17 (a), specifically states that, 
'"If the injured employee has worked in the same employment, whether 
for the same employer or not, during sitbstantiallij the whole of the year 
immediately preceding his injury his average earnings shall consist of 
tliree luindred times his average daily earning.^, wage or salary which 
he earned as such employee during the days when so employed." This 
Commiasion has no discretion in the premises. It must follow the 
statute, and, inasmuch as applicant was abl^ to show an earning during 
the year immediately preceding the injurj' in excess of the maximum 
average annual earning allowed by law, there is nothing for the Com- 
mission to do but to accept the legal maximum as the average asQual 
earnings in this ease. 

Applicant Scott Gordon, however, is a man of intelligence and 
resou reef ninths, and, in the judgment of the Commission, it is not 
necessary for him to remain wholly idle as a result of his injury. 
Therefore we find that, with the exercise of due diligence, he will, in 
seme capacity, be able to earn twelve dollars and five cents ($12.05) 
per week during the continuation of his partial disability from and 
after the first six weeks following the accident. 

It seems probable that an operation may be necessary in order to 
i-eacli the seat of the difficulty and remove the cause. If this shall be 
determined upon by competent surgical authority, and Gordon shall 
submit to the operation, this Commission will award him the reasonable 
cost of the operation and full disability benefit while wholly disabled as 
a result of the operation, but if he shall refuse to undergo the operation, 
all disability payments shiiU cease during the continuation of such 
refu.sal. 

A. J. PiLLSBURY, 

Wnj, J, French, 
H. Weinstock, 
Commissioners. 

n<l livii(« Involviil In tlic decision 
ti JiitH' 2t. 1»14, and was griinti-d 
h\ Die i-iimniLwiiPii iin July iisiii. Alter tnKinK lurllier tesUmony upon the i-xteiit 
i.f .lis;ili[ll[y HiiKliiln.-il b)- tlic i.|ipU™iil, llie KIikIIiirm and Award wrre amended to 
iillow lo lilni llif Hiiin of lUrw liiindrt'il Iweiily diiUniw nnil fortv-seven cents ((320.47), 
thiH amount IhIdk In Cull r<>r n «-iiinor:iry liit:il disiLlilllty IcwtlnR from February I»th 
1.1 Api'll nrd, ;i ih-iI<hI nt four nvcks. for n Ipmiiornry fKirllnl dlsubllily IiiatlnR from 
April 3rd lo June 6lh, ii m-riiid of ninp wiikw: for a tempomry tot"' dlaablflty ot 
Miret- K->i'kn rotiowiriK on uiHrnllon [lerfornipil upon the iippllmnt on June Ith to 
I'.'ii.'ve hfH condition; unci n temiHiniry |>iirtl>i1 dlH;i1>11lty nf four and threc-Revnlhs 

<l[Ki>illiiy Indeniiiltii'' Vfrf iil th" Rili- rif thirlii'n dnlliirn <t1'<.0n) per week. The 
:iliiiliinnt Wii» further iiwnnled lih mtdieal vxiKinscs to the amount of sovenlf-flve 
doilurs tt7S.0O). IL 



INDUSTBIAI. ACCIDENT COMMISSION DECISIONS. 97 

(No. 103— May 29, 1914.) 

(Chapter 170, Laws 1913.) 

WILLIAM SEWARD WALLACE. Applh-ant. vs. THE REOENTS OK THE 

UNIVERSITY OF CALIFORNIA <a cohpobation). Dcfeadant. 

BuRriEN OF I'BOOF — RBEREquisiTEa FOB Compensation.— The law places the burden 
of proof upon the applicaDt to establish certain facts as p re requi sites tu 
obtBiDing cunip^nKaMoti for industrial injuries, and bdioiik these prerequisites 
are the facts that there was aa accident, and that the iDJurJi>s complained of 
resulted from the accident, not remotely but proximately. 

Upon the testimonj- adduced iu this case, hdd. that applicant has failed to 
establisb, by a preponderance of evidence, the fact of injury by accident received 
in the course of his employment. ' 

Claim for compensation for disability caused by accidental injury 
while working in the course of tlie employment. The facts are stated 
in the opinion. Applicant was employed as a research assistant in 
zoology by the Scripps Institution for Biological Research of the 
University of California at La Jolla, and this action was brought 
against such institution. On motion, the Regents of the University of 
California, a corporation, were substituted as the proper party defend- 
ant. The application for eompen-ation was denied, on the ground that 
applicant had failed to prove by a preponderance of evidence that his 
disability had been caused by the accidental injury alleged. 

William Scivard Wallace, in propria persona, for Applicant. 
F. P. Griffiths, attorney, for Defendant. 

The applicant in this ease was attached to the "Scripps Institution 
for Biological Research" as research assistant. While in such employ- 
ment he assisted other men of the force in constructing a concrete 
retaining wall and claims that, while doing so, he suffered an injury to 
his back by catching and preventing the overturning of a wheelbarrow 
filled with concrete material which was coming down a steep bank in 
the eare of a fellow worker. In support of this claim, applicant pro- 
duced evidence to the following effect: 

1. By Dr. Ernest A. Plant, that applicant had a chronic lateral 
curvature of the spine, hut that the lower curve had been recently 
exaggerated causing the partial dislocation of the twelfth rib on 
the left side and the left kidney to he pushed down and out of 
position. 

2. Ilis own testimony as to how the injury took place. 

-f. The testimony of Dr. AValter Baldwin, of San Francisco, that 
as lute a.s the 22d of April he found a definitely tender spot over 
the third luml)ar vertebra, but that the condition could come 
almut without any definite injury, although the probabilities are 
iu favor of an injury as a cause. 



D.gitizecbyG00glc 



98 INDUSTRIAI. ACCIDENT COMMISSION DECISIONS. 

Pir contra: 

1. Dr. A. AV. Sweariiigeu made affidavit to the effect that he 
e.\ai»iiied WullHce on the 25th of F<?hniHry and found Mm 
suffering from rheumatism and nothing ebe. 

2. That he did not complain of any accident happening to him 
at the time of the alleged accident or for a long time thereafter. 

3. That he worked the rest of the day after the accident com- 
plained of and also for the next three or four days in the garden, 
quitting on the 10th and laying off for a week, then returning to 
work, finally quitting on the 6th of March. 

4. During all this time, and up to the 4th of April, applicant 
made no claim that any accident had happened, although it was 
known to his associates at the institution that he was ill and that 
his back hurt him, an affliction of which he had complained many 
times long before the time of the alleged accident. 

The law places the burden of proof upon the applicant to establish 
certain facts as prerequisites to obtaining compensation for indastrial 
injuries, and among these prerequisites are the facte that there was 
an accident and that the injuries complained of resulted from the 
accident, not remotely but proximately. 

In most cases when there has really been an accident the fact is 
known at the time of the accident, or the injured person reports the 
accident to his superior or talks of it to his associates. Being ill 
the natural tendency is to account for the illness by referring to the 
accident as the cause, then and there, not weeks afterward. When, 
as in this ease, nothing is said of any accident having happened until 
some weeks after one has been discharged from service, the burden of 
proof rests all the more strongly upon the applicant to establish the 
fact that such accident did happen and that the disability complained of 
was prosimately caused by that accident. 

We think that, in this case, applicant has failed to establish the fact 
of injury through accident by even a preponderance of evidence and his 
application is therefore denied. 

A. J. PlLlBBURI", 

Will J. French, 
Harris Weinstock, 
Commissioners. 

(No. 106— May 23, 3914.) 

(Cliapter 17(i, Laws 1013.) 

FLIZABKTIl FARRISII, .i/iplif^nt. vs. ROBINSON NUOKNT, and UUARDIAN 

CASUALTY AND GUAItANTY COMPANY (a cobpobation), Defendantt. 

I'RIIMMATE CaI.SE OF DEATH — LaTEB DEATH KrOM NaTUBAI. CAUSES. — TCBtilUMiy 

of all the moilipiil exijcrls eoncprne<l in tlip t09i> hoTil conclusive of fact that 
(loath of M|>pliranl'H hiiKbaud spvru wwks nflpr a minor nci'iiti'nt rereivcJ in the 
coiinw of his pniiihijmpiit, was ilnr lo iintnrnl ('aiisi*, ntul not caused proiimately 
or rcniotcly by said accident. ' 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 99 

Claim by widow of deceased employee for a death bene6t. The facts 
are stated in the opinion. The application was denied on the ground 
that the applicant had failed to show any causal connection between 
the accidental injury to deceased on February 3, 1914, and his sub- 
sequent death on March 27, 1914, 

Robert Ji. Leather wood, attorney, for Applicant. 
Barry J. Voiding, attorney, for defendant Guardian Casualty 
and Guaranty Company, substituted on motion for defendant 
Nugent. 

On the 3d day of February, 1914, one Robert Parrish, while working 
on a street in San Francisco in mending or putting down pavement, 
had a shovel knocked out of his hands by a passing automobile. The 
automobile did not strike him but the shovel handle struck him in the 
side and knocked the breath out of him, causing him to sit down on a 
pile of gravel until he regained his composure, after which he returned 
to work. 

He continued to work thereafter for ten days when he fell ill and 
ceased fo work. He complained to his employer of soreness in his 
side, and to Dr. H. A. Gale, who was called on the 19th to treat him, 
of pains in the back across the loins. He continued ill and grew 
weaker every day until the 27th day of March when he passed away. 

This proceeding was instituted by his widow, Elizabeth Farrish, who 
claims that death resulted from the injury and that she is entitled to 
the death benefit allowed by law in such cases. 

An autopsy was performed which, according to the testimony of 
the autopsy surgeon, Dr, David E. Stafford, showed that deceased, 
who was seventy-four years old at the time of his death, died of 
adherent pericarditis, that is, the adherence of the pericardium (the 
sack in which the heart iy incased) to the walls of the heart in such a 
manner and to sueh an extent that the heart could not act and there- 
fore had ceased to beat; also that he was afflicted with chronic 
myocarditis, that is, inflammation of the muscular tissues of the heart. 

Competent medical testimony further shows that said Robert Farrish 
died, primarily of inanition, of a rather rapid decline of physical 
powers Ko that his system 'had no power to resist the heart troubles 
from which he had long suffered, and it was the opinion of all the 
medical authorities con.sulted that the accident, if it had any relation 
at all to the death, had at most a trivial and inconsequential relation 
and can not be looked upon as in any proper sense the proximate cause 
of the death. 

The accident took place on the 3d of Febrnarj', he was not taken ill 
until about the I2th or i:ith. and ho died on the 27th of March. As 



D.gitizecbyG00glc 



100 IHDUSTRIAI. ACCIDENT COMMISSION DECISIONS. 

his own attending physician expressed it, "He simply grew weaker 
from day to day and parsed out without any suffering whatever." 

Distressing ae it is thus to leave an aged widow unprovided for, this 
Commission tan not do otherwise, in such cases, than to find that the 
death was not proximately caused by the injury and, (wnsequently, that 
the application for a death benefit must fail. The industry ijhould be 
chargeable with the consequences which follow injuries by accident, but 
not with eonsequencei which primarily arise from natural causes and 
sustain no more than an incidental relation to the accidental injury 
complained of. 

A. J. PiLLSBURY, 

Will J. French, 
Harris Weinstock, 
Commissioners. 



(No. 126— May 29, 1914.) 
(Chapter 176, Laws 1013.) 
CHRISTIAN OLSKN. AppHiant. tb. ' PACIFIC STEVEDORING AND 
BALLASTING COMI'ANY. and NRW KNGI^\ND CASUALTY COMPANY, 
ItrfaidaHtK. 

(Jhristian Olseti, in propria persona, for Applicant. 
Berry J. Colding, attorney, for Defendants. 
Thi.-^ is an application for compensation for disability sustained by 
applicant while working in the course of his employment as stevedore 
for defendant Pacific Stevedoring and Ballasting Company. Applicant 
was injured by a heavy piece of timber falling upon his great toe. 
severely bruising and lacerating it. All the essential facts were agreed 
to by both sides prior to the hearing, except the period of disability 
and extent of the injury. After considering the evidence produced, 
the Coinmi.ssion awarded compensation in the sum of sixty-three dollars 
and fourteen cents ($63.14), the same being for four and six sevenths 
weeks temporary total disability. 

H. L. White, 
Secretary. 

(No. 57— June 1,1914.) 

(Chapter ITS, Laws 1913.) 

rriATlI/ITTE M. JOHNSTON, Ajiplicanl. vs. MOITNTAIN COMMERCIAL 

CO,MrANY (A COPARTNEBSHIP), llifendant. 

"A ceil IE NT A 1." Ikjukv— Empijjvee Kim.kd by RdBBEns IN Dkfesdino His Em- 
ru>VER's I'l.ACB OF lU.siNEMM. — Where BD einplojpc ia killpii in defending his 
(■111 111 oyer's iiXaee of bnsiucs from robl)ery, the (loath is afi^ideutBl within the 
meniiiiis of Hit Workmen's ComiM-nsation, InHiiran<'e nod Sntety Act, anil Ibe 
dciieniteDls of «uch employee ore entitled to compensation tberetorj- - i ^ 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 101 

"AcciDENTAi." iNJUBY — Tebt Or. — An injury is accidental within the meaning of 
the act it It is "unforeseen. " "without design." "happeninjc without the concur- 
rence ot the injured patty," "unintended or uneipected" by the employee, or "a 
risk of his oecupfttion." 

BuPLoYEHS — Emplotmeht bt Mo&e Than One Employes at the Same Tiue. — 
The (act that deceased was employed in the dual capacity of employee of the 
defendant and of the United Stales Government does not make him any (he Ichb 
an employee of defendant, and applicant may elect which of the employers she 
will proceed against. 

Scope of the Empioyment—Seb vices After Hours. — Where an employee remaiuK 
about liis plact of employment after (be hour for closing and is injurcil or killed 
by robbers while defending hia employers' property, such injury or death is 
received in the course of his employment. 

Defenses oe Empixiteb — Accident Which Emplovcb Can Not by the Exebcisb 
OF Extraobdikaby Care Pbevent. — It ia no defense in an action for compensa- 
tion that the accident is one which the employer could not, by the exercise of 
reasonnhle care and caution prevent, aa compensation is payable under the act 
without rt'gnrd to want of reasonable rare. 

EviUE.NCE. — Held to show that the assault resulting in the death of the emjiloyoe 
was tor purposes of robbery and not to avenge a personal griovauce, as 
contended. 

This is an application for a death benefit by the mother of Frank 
Volney Johnston, deeea.sed. The latter was killed by bandits in the 
course of a robbery of the store and post office where he was employed at 
Teeate, California. The facts are stated in the opinion. An award was 
made in favor of the applicant in the sum of seven hundred and twenty 
dollars ($720.00), payable in installments of three dollars ($3.00) per 
week, for two hundred and forty weeks. 

U. E. Doolittle, attorney, for Applicant. 
Lcroy A. Wright, attorney, for Defendant. 

The defendant in this case owned and operated certain stores at dif- 
ferent points near the southern border of San Diego County and one of 
these was at Teeate and about one hundred twenty (120) feet from the 
boundary line between the United States and Mexico. It was in charire 
of one Frank Volney Johnston, son of the applicant in this case, and, 
assisting Mr. Johnston in the management of the^tore was one W. A. 
Wiedenbeck, a young man of exceptional courage and hardihood. 

On the evening of the 14th day of March, 1914, while Mr. Johnston 
was engaged in the little wire cage which constituted the post office, of 
which he was postmaster, and while Wiedenbeck was at one of the count- 
ers in the store, the time being fifteen or twenty minutes after 8 o'clock, 
a noise of shuffling feet was heard on the front porch and Johnston 
direeted "Wiedenbeck to go to the door and see who was there. He did 
so and opened the door whereupon a shot was fired at him at such close 
range that the powder bnrned his face although the ball missed him. 
At once two masked men advanced upon him and rushed him to a back 
room, where they tied him and left him and returned into the store. At 



102 INDUKTHIAL ACCIDENT COUMISSION DECISIONS. 

that instant a second shot was fired. Meantime, a third man had covered 
Johnston with his pistol. 

What took place in the store within the next few moments is not in 
evidence, but presently the men returned to the back room whecc 
Wiedenbeek was lying tied, loosened his bonds and conducted him to the 
safe and ordered him to open it, which he declined to do, protesting that 
he did not know the combination (although he did). They threatened 
him with death and beat him over the head with a pistol, but finally 
returned him to the back room, knocked him down and kicked him and 
then left him. He somehow got out and over a back fence six feet high 
and then lost consciousness, but was finally found and eared for. The 
store was set on fire and burned to the ground and the body of Johnston 
was found outside the post office and counter with a shotgun and rifle 
at either hand. He had been shot through the heart. 

Charlotte M. Johnston is the aged mother of Frank Volney Jolniston. 
deceased, and according to testimony inti-oduced on her behalf, had for 
twelve years (since the death of her husband) depended upoa her de- 
ceased son for her support, except that she was in receipt of twelve dol- 
lars ($12.00) per month pension as a soldier's widow. She instituted 
this proceeding to secure a death benefit as a dependent upon deceased 
for her support. The proceeding is resisted substantially on the 
grounds that, — 

1. The deceased workman was not, at the time of his death, solely in 
the employment of defendant, but also in that of the United States 
Government as postmaster, and that, at the moment of his death, he was 
in the post office, and, therefore, in the employment of the government, 
and his death could not have arisen out of his employment with de- 
fendants, 

2. That said murder was for the purpose of avenging a personal 
grievance against said Frank Volney Johnston, and, tlierefore, his death 
did not arise out of or happen in the course of his employment with 
defendants. 

3. That the death of said Frank Volney Johnston was not the result 
of an "accident" within the meaning of the Workmen's Compensation, 
Insurance and Safety Act. 

4. That the death of said Frank Volney Johnston resulted from an 
unprovoked a-ssault by bandits and could not have been prevented by the 
exercise of extraordinary care and caution l»y defendants. 

Abie counsel were retained on both sides of this case and ably pre- 
pared briefs were filed to ard this Connuission in reaching a just determi- 
nation of the is,sue8, and, confessedly, the tragedy involves issues of 
nmch difficulty and importance to future interpretations of this act. 
We shall first consider whether or not the death of Frank Voluey 

Goo^^lc 



INDUSTBIAl^ ACCIDENT COMMISSION DECISIONS. 103 

Johnston did, according to the testimony, constitute an "accident" 
within the meaning of the Workmen's Compensation, Insurance and 
Safety Aet. 

Here let it be st-ated that the light thrown upon the issue by 
reference to decisions in ordinary civil and criminal cases, as instanced 
by citations by counsel for both applicant and defendant, is far from 
being luminous or very helpful in determining such issues. There is 
growing up under the administration of compensation laws a system of 
jurisprudence separable and quite distinct from that which has grown 
up under the civil and criminal laws of this and other states and coun- 
tries. The procedure, the rules of evidence, the spirit of construction 
and interpretation, the philosophy of the law, all differ in radical re- 
spect from the main body of laws and interpretations of laws that govern 
society in respect to human affairs other than such as relate to compen- 
sation for industrial accidents. The newer system has broken abso- 
lutely from the old for the reason that the old had proven itself inca- 
pable of adequately establishing justice in the field of industrial acci- 
dent. Consequently, relatively slight regard is had in the determination 
of. this issue to the citations made by counsel to cases outside of com- 
pensation jurisdictions. 

Our best source of judicial interpretation under compensation legisla- 
tion is the British. Our compensation law is founded upon the British, 
and, while this Commission does not accept the decisions of British 
courts, or even of the House of Ijords, as authoritative or obligatory in 
any servile sense, we do find their processes of reasoning of great assist- 
ance in reaching right conclusions. 

In British interpretations of the word "accident" wo find, in part, 
the following : 

"Anything happening without design," — on the part of the 
person to whom it happens. 

"An unforeseen effect," — unforeseen by the person upon whom 
the effect is visited. 

"An event happening without the concurrence of the will," — of 
the person to whom the event happened. 

"The word 'accident' is to be taken in its popular and ordinary 
sense as denoting 'an unlocked for mishap or an untoward event 
which is not looked for or designed by the person to whom the event 
or mishap happens'. " House of Lords. 

"Generally speaking an accident is, 'Any unintended and unex- 
pected occurrence which produces hurt or loss,' that is, unintended 
and unexpected by the person who suffers the hurt or loss." House 
of Lords. 

"Although the injury complained of may be inevitable, still, if 
it is unforeseen (by the person who suffers the injury) there is in 
it the element which constitutes an accident within the meaning of 
the act." British Court of Appeals. 

.Goo'^lc 



104 INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 

"An injury sufitained by a locomotive engineer by a roek thrown 
at the cab by a mischievous boy was held to be an accident within 
the meaning of the act, such offense being a risk of the occupation." 

"An injury through a criminal act may he an accident if a risk 
of the occupation." 

"Where a game keeper is attacked and wounded while in the dis- 
charge of his duties by being set upon by poachers the injury con- 
stitutes an accident." 

"Nisbet, while taking money on a train to a colliery in order to 
pay off the men, was set upon and robbed and shot and killed, the 
act was held to be an 'accident' from the point of view of Nisbet 
who had not anticipated such an event ; because his employment was 
attended by special risks not shared by others upon the train ; be- 
cause it was an unforeseen and untoward event producing harm : 
because it is unreasonable to suppose that parliament inti'nded to 
exclude from the operation of the compensation act injuries be- 
longing to this cla.ss of pursuits." 

The foregoing British views of what constitute an accident appear to 
have been pretty generally adopted by states having compensation laws 
and, at least partly, by the Supreme Court of the United States which, 
in the ease of Mutual Acddeni Association vs. Barry, 131 U. S. 100, held 
that. "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 can not 
be called a result effected by accidental means ; but if, in the act which 
precedes the injury, something unforeseen, unexpected, unusual occurs 
which produces injury, then the injury has resulted through accidental 
means," 

With reference to injuries by assaults by third persons Harry B. 
Bradbury, in his "Workmen's Compensation and State Insurance Law," 
thus sums up the issue: "Cases of assault have not lieen decided uni- 
formly. On principle the better rule seems to be that an as-sault which 
lias no connection with the work in which the employee is engaged does 
not entitle the workman to compensation. On the other hand, justice 
appears clearly to have l)een accomplished in awHrding compensation 
in those cuscs where robbery was the motive of the ansaidt." 

"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 compt^nsa- 
tion": In re Margaret Kvans, Ohio Industrial Accident Board. 

"A street car conductor injured by the asHnult of a disorderly 

passenger is entitled to compensation"; Washington Industrial 

('om miss ion. 

The Indu.strial Accident Board of the State of California, in the case 

of Weston vs. Crown Columbia Paper Company, held that •where the 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 105 

hired manager of a hotel was injured in attempting to eject turbulent 
persoDs from the hotel, he suffered an aecident, but denied compensation 
on the ground that the principal injury complained of was suffered 
while striking one of the men for applying to himself an opprobrious 
epithet and that this act was not performed "in the line of his duty" as 
the statute then required. 

Also, in the ease of Emmerl vs. Trustees of the Preston School of In- 
dustry, this Commission held that a nightwatchman employed by the 
school and who was set upon and severely injured by inmates of the 
reform school, had suffered an accident within the meaning of the Work- 
men 's Compensation, Insurance and Safety Act. 

We are of the opinion that, in view of the foregoing, as deiinition, 
rationale, precedent, authorily and fact, the killing of Frank Volney 
Johnston by Mexican bandits was "by accident," within the meaning 
of the act. It was, so far as he was concerned, "unforeseen," "without 
design," "an event happening without the concurrence of his will," 
"unintended and unexpected," "a risk of his occupation," or, in the 
language of the Supreme Court of the United States, "If it was unfore- 
seen, unexpected, unusual and produces injury, then the injury has 
resulted through accidental means." 

The other issues involved are more easily disposed of. We think that 
the fact that deceased was employed in the dual capacity of employee 
of the defendant and of the United States Government does not make 
him any the less an employee of defendant, and applicant may well elect 
which of the employers she will proceed against. If he was killed as an 
employee of the government he was as certainly killed as an employee 
of defendant, and the issue sought to be raised is more subtle than 
material. 

The evidence introduced to show that the death of Johnston was due 
to a purpose to avenge a personal grievance, and had nothing to do with 
his employment, was not strong enough to do more than to excite in the 
mind a doubt or uncertainty quickly removed by the evidence of 
Wiedenbcck that he also, who had had no difficulty with Mexicans aerass 
the line, was first shot at, then Iwaten and, finally, sought to be compelled 
to open the safe of the store that the safe might be robbed. The purpose 
of the bandits was clearly robbery of that safe. 

The implication of defendants' counsel that, inasmuch as the murder 
was committed after hours, the "accident" did not arise out of or 
happen in the course of the employment, likewise will not bear the test 
of sound judgment. It would be al»surd to contend that these two em- 
ployees would, up to the hour of u.sual closing (8 o'clock p. ni.) he under 
obligation to defend their employer's safe from pillage, but that that 
obligation ended at eight and that a quarter of an hour afterward, they 



106 INRUSTKIAL ACCIDENT COMMISSION DECISIONS. 

might, without resistance and with entire loyalty to their employer, 
permit the rifling of the safe by whomsoever wished to do it. 

The contention that defendant should be freed from liability for the 
reason that the assault upon the deceased employee, "Could not have 
been prevented by the exercise of extraordinary eare and caution by 
defendants," is quite beside the ease inasmuch as compensation is pay- 
able unJer the act without regard to want of reasonable care. Perhaps 
forty per cent of all industrial accidents are "pure accidents" for which 
no one is or can be morally responsible, and yet are compensable under 
the act as a proper charge against the industry in which the employee is 
engaged. 

When we come to adjudicate the claim for a death benefit under the 
act the result must impress the disinterested citizen as of less importance 
than the legal issues involved, inasmuch as the evidence shows that the 
applicant is only partially and not wholly dependent upon her deceased 
son for her support. She has a pension of twelve dollars ($12.00) per 
month, which is conclusive as to the issue of being a partial dependent. 

Then, too, the family accounts, and the numbei; of persons who from 
time to time shared the generosity of the deceased employee, reduce the 
amount which could have been expended for the benefit of the aged 
mother alone to a very moderate allowance, but this Commission has no 
choice except to make its award in conformity with the evidence. 

A. J. PiLLSBUKY, 

Will J. French, 
II. Weinstock, 

Cotmrnssioncrs. 



(No. in^Tune 1, 1914.) 

(Chaptor 176, Laws 1013.) 

MBS. DltUSIIXA S. HUMPHRIES, Applicant, vs. HAMMOND LUMBER 

COMPANX (a cobpobjtion), Defendant. 

Denver Sevier, attorney, and C. 0. Dreiss, auditor, for Defendant. 
This is an application filed April 18, 1914, for an order approving 
a settlement made between applicant and defendant adjusting the 
amount of compensation due the applicant for the death of her husband 
while the latter was working in the course of his employment at 
defendant's mill. A death benefit of eighteen hundred dollars 
($1800.00) bad been agreed upon to be paid as follows: One half, 
represcntiiifi the first one hundred and twenty (120) weekly payments 
provided by the statute, to be paid immediately after proper deduction 
of interest charKcs, netting eight hundred forty-two dollars and fifty- 
three cents ($Hi2.i)^) ; and the balance to be paid in thirty (30) 
monthly installments of thirty dollars ($30.00) each. The reason 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 107 

offered for the commutation and settlement was that applicant desired 
to meet the expenses of getting back to her relatives in Oklahoma and 
becoming established there so that she could earn a living for herself 
and minor child. A hearing was held on May 6, 1914, and on June 1, 
1914, the award of the Commission was entered approving and embody- 
ing the terms of the settlement. 

H. L. White, 
Secretary. 



(No. i;J4— June 1, ]!H4.) 

(Chapter 176, Laws 1913.) 
LOUIS VAN LAKKKlt, Applit-aat. vs. COUNTY OF I.OS ANCKI.KS, Di'fi-iidanl. 

Wii.FL'i. Misi'ONbuCT — l>tsotiEi>iENCe OF Obderk. — Wliprc thn cviilcncc xhnwN Hint 
it was part of tlie duties of thp iipplicniit to loaii lumber upwn an aiilcinmliile 
Inipk and that tlio opiilitant hnd bi'pn instnicted not to Ret out over Hip wIippI 
In Ki'ttiuB olT tLp tni<-k, and that npi)Uc«iit iliil get off ovpr thp n-hcul iind received 
injuries thcreLy, but that Ihprc was also evidpnte to show that ol thp time of 
tho acf^tdpnt thP other meanH of h>avlne the truck wpi-e blocked, hrld. that whilp 
sneb evidence eatabliahea misrondutt, it fails to eatablish wilful misconduct as 
required by the act. 

Medical and SrHnicAi. Sehvicer — RiiiiiT of Empwyer to FmNisii.— Where the 
employer, the County of Los Angeles, bad placed the applicant in the county 
hospital after his injury, at the expense of the employer, and the applicant later 
became dix.iatlHfied and left the boapital without the conseul of thp employer, 
such employer is not liable for the reasonable value of medical treatment fur- 
nished by other than its own hospital or physiciatis. 

This is an application for a total temporary disability indemnity 
and for medical cxpcn*;es. The faet.s are stated in the opinion. An 
award was made in favor of the applicant in the sum of seventy-four 
dollars and ninety-six cents ($74.96), this being the amonnt due for 
eight weeks' disability at the rate of G5 per cent of the applicant's 
average weekly earnings, or nine dollars and thirty-seven cents ($9.87) 
per week. Compensation for applicant's reasonable medical expenses 
was denied. 

Chas. L. Benoist, attorney, for Applicant. 

Chas. E. Haas, assistant county eoiin.sel, for Defendant. 

Applicant in this case was working for the county of Los Angeles 
m repairing highways, and formed one of a gang of workmen out with 
an autotruck repairing roads during the high water. In the dark on 
the night of February 18th he attempted to get out of the tru(;k over 
Ihe wheel when the truck was started up, throwing him to the ground 
and a stick of timber on top of him. The result was an injury to one 
of his kiioes. lie wa.s taken to tlie county hospital and treated until the 
4th day of March, 1914, when he was discharged at his own reiiuest, 
Jind for the reason, as he says, that lie did not think that he was getting 



108 INDUSTKIAl- ACCIDENT COMMI.4SION DECISIONS. 

adequate treatment. He went to a physician of his own selection and 
was treated for sis weeks for synovitis of the joint, was discharged 
from treatment on April 13th, but claimed not to be well on the date 
of the heariny;, May 14th. Applicant made claim against the city of 
Ix>s Angeles for a disability indemnity and for reimbursement for 
medical services rendered after he left the countj' hospital, to enre and 
relieve him from the effects of his injury. 

Defendant resisted the claim principally upon the grounds that the 
disability, if any, arisini; out of the injury was slight, and that the 
accident itself was caused by the wilful miseonduct of the employee in 
getting out over the wheel when the foreman had told him not to. 

There was evidence to show that the foreman had instructed his men 
not to get out over the wheel, which fact applicant admits, but claitns 
by way of extenuation that, on the night in (juestion, by reason of the 
tying down of a canvas drawn over the truck to protect the men from 
rain, there was no way to get out except over the wheel. We think 
that there may have been misconduct in petting out over the wheel, 
although the evidence as to other methods of getting out on the night 
in (]iicsion is inconclusive, but there was no evidence to show that such 
misconduct was wilful within the meaning of the act. 

We are satisfied that the injury was serious and that there was dis- 
ability by reason of it, but when the applicant left the county hospital 
he did so of his own volition and any treatment received after that 
date was of his own choice, lie did not get the consent of the county 
authorities to seek other treatment at the county's cost, and the county 
did not refuse to furnish further treatment at the county hospital. 
Therefore, further and other medical treatment is not, in this case, a 
j'ropcr charge against the defendant county of Los Angeles. 

A. .1. Piij,sBURy, 
WiM, J. Fkencii, 
H.vRRis Wkinstock, 
Commissioners. 



(N„. ];)7— June 1. ]!H4.) 

(Chapter 176. iJiws lill3.) 
E. E. ItOVEIt, Ai>i>lii-aiil. vs. SKLIG POr,VS(^()rr; COMTANY. lh-lr.ailinil. 
0. F. }fr('untirli. attorni-y, for Applicant. 
F. L. Shihhx, attorney, for Defendant. 
This is an application for compcii.sation for iii'ci<leiital injury sus- 
tained by ap|ilicant while employed as a laborer by defendant. The 
employer had paiil ccmiiu'iisjition to applicant for a period of time, but 



D.gitizecbyG00glc 



mOUSTRIAI. ACCIPENT COMMISSION DECISIONS. 109 

later ceased the payments, clainiiug that applicant's disability had 
terminated. Applieaiit elaiiiied that he was still totally disabled from 
working as a eomnion laliorer. The CommisHion found that the injury 
had ceased to disable the applicant and that he had been fnily com- 
pensated for by the paymentH already made. Applicant was awarded, 
however, the reasonable vahie of medical services rendered him to 
relieve him froiin the effects of his injury. 

II. L. White. 
Secretary. 



(No. 102— Jnne 3, 1914.) 
(Chnptcr ITC, Laws IftlS.) 



Albert Picard, attorney, for Applicant. 
E. Williams, attorney, for Defendant. 
This is an application for compensation for a hernia claimed to have 
been caused bj- a strain while carrying a bar of lead at defendant's 
smelter at Crockett, March 7, 1914. Applicant was awarded fifty-six 
dollars and twenty-nine cents {.$56. 29) for five and three sevenths weeks 
temporary total disability, and also the payment of the reasonable value 
of the medical a^rviees rendered by his physician in performing an 
operation to cure the hernia, 

n. L. White, 
Secretary. 

(No. 112— Jnne 3, 1914.) 
(Chapter 170, Laws JfllS.) 



SrEnicAi. AND Slbcrai, Sehviceh— iKHTBri^rios OF Kmplovee— Liability of 
KMPixiyEB. — It is incumbent upon the employer upon tlie happening ot an 
iiccidcnt, at once to inslruct the injured employee rei;nrdinE the medical and 
Kui^lonl treutmeiit tu be furnisheit by the employer. lie must be specilically told 
what to do and to whom to regiort. If the employee is not so instructed and 
secures treatment on his own behalf, the employer is liabli- for tbe reasonable 
value ot «urh treatment, even tlioiiRh he was ready and desirous of furnishing 
medical aid aecordiuf; to his own plans. 

In.— SBeuKiso ov Meiiicai. Tbeatment by (Impluye?: — Cuasoe ok rnYsiciANS. — 
Wliere an emjiioyee was not instructed at once by the employer as to where to 
go for medical treatment at the ext)cnse of the employer, and l>e[ore receiving 
Mueli notice hax incurred reniwnnble e]t|iensi's for treatment and made proper 
arrnnsementa for it.s eontinuance, the eniplo}-ee is not required upon receipt 
ot notice by the employer to disnii.tK his own physi.'inn and put himself under 
the medical attention offen^d by the employer. 



INDUSTRIAL ACCIDENT COMSIISSION DECISIONS, 



DlTBATHIN Of IHSABII.ITY— KaHJKB WllBK FlBNlHIIKll BY KMPIX>YKR BR-OBE DtS- 

Auli.iTY Kntibixy KkuiivkI) — Kt KKCT Of. — Wliero the oniployer before his 
injurnl employee in pntirel; rerorercd and able to resume the work he was 
doing at the lime of the accident. atfi'Ts such employee easier work at the same 
wagvH HH •Kvip paid bim in-fore his injur}', aud the employee is able to perform 
Buch cuKiep tasks at that time, sucb employee is obliRod either to accept tlie 
offer or to forfeit all further disability compensation. 

This is an application for (.-ompeasatiun for disability caused by an 
accidental injury received by applicant while performing services in 
the course of his employment. Applicant was employed as a laborer 
at the Pan am a- Pacific International Exposition grounds and was 
struck upon the shoulder by a piece of timber, bruising the muscles. 
The remainder of the facts are stated in the opinion. Applicant was 
denied compensation for loss of time for the reason that his disability 
did not extend beyond the waiting period of two weeks. He was, how- 
ever, awarded the reasonable value of medical and surgical assistance 
rendered hira. 

Joint Deiichy, in propria persona, for Applicant. 

Hrittain d; KvM, attximeys, for Defendant. 
It is incumbent upon the employer upon the happening of an accident 
to instruct the injured employee at once regarding the treatment to 
cure and relieve him from the effects of his injuries. He must be 
specifically told what to do and to whom to report. In this case the 
physician of the defendant who gave the applicant first aid allowed 
him to go away without giving him any instructions to return or telling 
him that provision would be made for his treatment, and it was not 
until three days afterwards that the applicant was informed of his 
duties in the premises. By that time he had incurred certain reason- 
able expenses for treatment and had secured the services of Dr. John 
Lagan to treat him and treatments had been given him. It was not 
incumbent upon applicant to change his physician after thus having 
made proper arrangements for treatment. Therefore, in this case, an 
allowance is made for the medical and surgical treatment, but, inasmuch 
fw defendant offered the applicant work that he couid easily do, at the 
same wagt^s he whs receiving, before his shoulder had entirely healed, 
and applicant neglected or refused to take the employment offered, we 
holii that there wa.s not disability after the waiting period of two 
weeks, and the only compensation allowed is that of the reasonable 
i-ONt of the niedicfd and surgical services. 

A, J. PiLLSBUBY, 
Wll-I. J. FBENCn, 
IIakris Weinstock, 
Commissioners. 



D.gitizecbyG00glc 



INDUSTRIAL ACriDENT COMMISSION DECISIONS. Ill 

(No. 127— June 3, 1914.) 

(Chapter 17U, Laws li)13.) 

GAIETY THEATEK COMl'ANY, Applicant, va. MAllY ROCKWELL, Defendant. 

B. G. Wills, claim adjuster of the Royal Indemnity Company, for 

Applicant. 
Mary Rockwell, in propria persona, for Defendant. 
This is an application by the employer for adjustment of any com- 
pensation that might be due the defendant for injuries sustained by 
the latter by reason of industrial accident. Defendant was employed 
by applicant in the theater of the latter as a chorus girl, and was 
injured by a full on the stairs leading to her dressing room, whereby 
she sprained her ankle severely, and was not able, at the time of the 
hearing, to resume work. Defendant was awarded compensation for 
tenipcrary total disability up to the date of the hearing, May 22, 1914, 
in the sum of one hundred four dollars and fifteen cents ($104.15), and 
the further weekly benefit from May 22, 1914, until the termination of 
such total disability of twenty dollars and eighty-three eeots ($20.83) 
per week; al-:o reasimable medical and surgical charges. 

H. L. White, 
Secretary. 



(No. 184— June 3, 1914.) 

(Chapter 176, Laws 1913.) 
MART A. TimOOP, Appliei 



Fred IV. McConnrll, attorney, for Applicant. 
J. A. Pctiix, attorney, for Defendant. 
The applicant in this ease, Mrs. Mary A. Throop, claims a death 
benefit because of the death of her son, Eugene Rouasau on April 22, 
1914, by accident. 

The deceased was employed as a fireman on the logging railroad of 
defendant and was killed by a runaway train. The applicant was only 
partially dependent upon her son for support, the extent of dependency 
being impossible of accurate determination because of the fact that 
.'ipplieant had kept no record of the amounts given her by the son. A 
settlement between the parties for the sum of five hundred dollars 
($500.00) was therefore, on June 3, 1914, approved by the Commis,sion 
and the action dismis.scd. 

IT. Ij. White, 
Secrctarf/. 



D.gitizecbyG00glc 



INDUSTRIAL ACCIDENT COUMI88I0N DECISIONS. 

(No. 3-4— June 5, 1914.) 
(Chapter 176, Lawe 1913.) 



C. Vi'. Fellows, manager State CompeiLsatioii Insurance Fund, for 

Applicant. 
F. N. Andrcain, of the Italian Consulate, for Defendant. 
This is an application by the State Compensation Insurance Fund of 
the Stat« of California, the iiiHurance carrier, to have determined the 
extent of dependency of defendant and other members of his family 
upon the earninfjs of Vincent iiaroz, deceased. Decedent was employed 
by the Ocean Shore Iron Works and was drowned while performing 
services incidental to hi.s employment with such company. Defendant 
Marco Baroz is the father of the dei^eased, and, on behalf of himself 
and his wife and minor child in Italy, claims a death benefit, claim- 
ing that they were partially dependent upon deceased for support. 
The Commi.ssion found that the average annual earnings of deceased 
were six hundred dollars ($600.00} ; that deceased had devoted 33J per 
cent of his average annual earnings to the support of his father's 
family, and that the latter were partially dependent upon him for sup- 
port to that extent. An award was accordingly made of six hundred 
ilullars (^(JOO.OO) to Iw paid as follows: Thirty-.seven dollars and fifty 
cents (!(i;i7.50) upon rei-eipt by the applicant of a copy of the award; 
and the balance in weekly installments of two dollars and fifty cents 
($2.50) per week until the whole amount be paid. 

II. L. White, 
Secretary. 

(No. llH^Tiinc r>, 1014.) 
(Chapter ns, Ijiws 1913.) 
MRS. ID.V (JITINTRAIJ-, Applicant, vs. CONSlIAIKttS' ROdK AND ORAVKI. 
COMPANY <A coRPOBATios), AND GI-OIIK INI>KMN1TY (.'cmPANY (a 
CURn>&A'nuN ) , Dcfendantg. 

Clyde Woodworth, attorney, for Applicant. 

James A. OauHcr, for defendant Cimsumers' Rock and Gravel 

Company, 
Herbert W. Kidd, attorney, for defendant (Jlobc Indemnity 
Company. 
This is an applicatidii by tJie widow of a deeejLsed employee for death 
benefits. Dcccdeiif, Jariu's Quintrall, \sat emph)ycd as a laborer by 



D.gitizecbyG00glc 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 113 

defendant Constimers ' Rock and Gravel Company, and was killed on 
March 16, 1914, by being buried by a tall of earth while working at 
his employment. The only <jnestions raised at the hearing were as to 
the dependeney of applicant and her minor son, the amount of the 
average yearly wage of decedent, and the amount of compensation 
due applicant to be calculated therefrom. The Commission found that 
the applicant was living with her husband at the time of his death, that 
she and their minor son were solely and wholly dependent upon him 
for support at that time, and that there were no other dependents. 
The average daily wage of decedent was established from testimony 
as to wages paid the average man in the same class of employment, to 
be three dollars {$3.00) per day. The average annual wage was there- 
fore placed at nine hundred dollars ($900.00) and a death benefit 
awarded the applicant of two thousand seven hundred dollars 
($2,700.00), payable after deduction of burial expenses, not to exceed 
one hundred dollars ($100.00), and attorney's fees, not to exceed 
twenty-five dollars ($25.00), as follows: A lump sum of one hundred 
eighty-one dollars and seventy-three cents ($181.73) by way of anticipa- 
tion of the last thirty -four weekly payments, and the balance in 
payments of twenty-two dollars and fifty cents ($22.50) fortnightly 
until paid. 

H. li. White, 
Secretary. 



(No. 107-^une 5, 1914.) 
(Chapter 17G, Laws 1913.) 



Biriicy DoimcU, attorney, for Applicant. 

JI. II. Trotvbridye, attorney, for Defendant. 
This is a petition by Bessie L, Ilowell, applicant, concurred in by 
the defendant, that a certain instrument of settlement, comprising 
applicant's claim for compensation for injuries causing the death of 
her husband, C. A. Howell, by accident while in the employ of defend- 
ant, be approved by the Commission. Deceased, C. A. Howell, was 
killed on February 12, 1914, by coming in contact with high voltage 
electric wires in the plant of defendant company. The amount agreed 
to be paid applicant in full satisfaction of her claim was three thousand 
six hundred sixty-five dollars and twenty-five cents ($3,665.25). After 



X— n— 11.".05 



D.gitizecbyG00glc 



114 INDUSTEUAI. ACCIDENT COHHISSION DECISIONS. 

hearing testimony as to the amount due applicant, the Commiasion 
made its order approving the release, which order was entered on 
June 5, 1914. 

H. L. White, 
Secretary, 



(No. 120— June 5, 1914.) 

(Chapler lift, Laws 1913.) 

STANLEY JENKINS. Applicant, vs. 1,. F. PIERATT, Defendant. 

I ifcuPATioRS Covered bt Cohpb:isation Act — Exempted Classes— Fabh Labos 
— Use of Teams off the Fabii. — Wbpn a farmer engages in ordinar; teaming, 
naeb as hautiog water for a mioe, be has stepped outside the exempted classes 
of "farm, dairy, agricultural, viticultural or horticullural lalwr. stock or poultry 
raiHing. or household domestic service," and his employee aatomatically comes 
within the prolection of the Workmen's Compensation, Insurance and 
Safety Act. 

Accidental Injubt — Notice to Emploteb — Failube to Give Pboupt Notice. — 
Where an employee is derelict in not reporting the fact of injury to his employer 
in time to give the latter opportunity to select the surgeon to treat him, no 
award of cost of medical and surgical care will be made. 

I'sei-onpebance of Evidence — Sufficient Evidence to Justifv Awabd. — Where 
applicant's story of bow the injury was sustained is reasonable in itself, is 
corroborated by the testimony of the attending surgeon that applicant's illness 
was the result of an injury, and that there is no evidence Icndins to disprove 
an injury received in the course of the employment, "sufficient" evideoce is 
presented to establish the fact o( injury. 

This ia ao application for compensation for disability alleged to have 
been caused by accidental itijury received by applicant while employed 
as a laborer by defendant. The facts are stated in the opinion. The 
Commission awarded compensation for three weeks total temporary 
disability in the sum of twenty-eight dollars and eleven cents ($28.11), 
and denied applicant the reasonable value of medical and surgical 
s,ervi<'e8 rendered him, because of delay in informing the employer of 
the injury. 

Stanley Jenkins, in propria persana, for Applicant. 
L. F. I'ieratt, in propria persona, for Defendant. 

L. F. Pieratt, the defendant in this case, is a farmer and has teams. 
When there is no work on the farm for his teams he hires them out 
to do hauling for a mine. The applicant herein was his teamster and, 
at the time of his injury, was a "water buck," that is, hauled water 
in barrels for a mine. In handling the barrels he got hia hand jammed 
between two of them and broke the skin of the third finger of the right 
hand at the first joint. He thought little of it, wrapped it up and 
continued to work for five days thereafter when he quit work because 
he did not like the job. He worked one day more driving cattle for 
another employer, but, meantime, hia hand had grown worse, and, on 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 115 

the 9tli of February, he consulted a physician who found a serious 
condition of btood poisoning existing. Applicant was disabled for five 
weeks by reason of his injury and subsequent infection. 

Defendant resisted payment of compensation in this case for the 
reasons that no accident had been reported to him for nearly three 
weeks after it was alleged to have taken place, although applicant was 
rooming at his house all the time and had abundant opportunity to 
speak of it; that, at the time of the injury, applicant was doing farm 
work within the meaning of the act, inasmuch as farmers all do team 
work when not otherwise using their teams; that a part of the work 
applicant performed while in the employment of defendant was dis- 
tinctly farm work. 

We think that the contentions of defendant are not established. 
When a farmer engages in doing ordinary teaming, such as hauling 
water for a mine, he ha.s stepped outside the exempted classes of "farm, 
dairy, agricultural, vitieultural or horticultural labor, stock or poultry ■ 
raising or household domestic service," and his employee automatically, 
and iiLstantly comes under the protection of the Workmen's Compen- 
sation, Insurance and Safety Act. 

Applicant was derelict in not sooner reporting the fact of injury t* 
his employer and, because he was derelict and did not give his 
employer opportunity to select the surgeon to treat him, no award of 
cost of medical and surgical care is made in this case. However, 
despite the failure promptly to report the injury (at all events as soon 
as it became serious enough as to require the services of a surgeon), we 
think that the fact of injury is sufficiently well established to justify a 
disability award. The story applicant tells of how the injury was 
sustained, reasonable within itself and corroborated by the testimony of 
the surgeon that applicant's disease was the result of an injury, 
together with the fact that there is no evidence to the contrary, con- 
stitute "sufficient" evidence as viewed by this Commission to establish 
the fact of injury. 

A. J. PUJ-SBURY, 

Will J. French, 
Harris Weinstock, 
Commissioners. 



D.gitizecbyG00glc 



116 INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 

(No. 129-June 5, 1914.) 

(Chapter 170, Lows 1!)13.) 

JOHN A. MITCHELL. Applicant, vs. McNAB & SMITH, Defendanii. 

Pboximate Cause — Varicoces-e, — Ordinarilj' varicocele comes through eradual 
development and afflicts dipd who have to stand upOD their feet, but it is 
conceded by com|>etent medical authoritieo that it may result from an accident. 
In view of Ihe teHtimony of the attending physician as to the nature and 
eTtent of applicant's injuries caused by the accident, Ihe previous medical 
history of applicant, nature of his previous employment, ajid character of his 
claim for compensation, bdd. that the varicocele was shown to have iKen 
proximately caused by accident. 

Pekmanent Partial Disability — Posbibilitt of Later Cure er Operation — 
rROViaioN Fob. — Where a partial disability is shown which may contluae 
indefinitely or permanently, and competent medical authorities advise that ft 
can be removed by oiieration without serious risk, and it may be cheaper for 
the employer to pay all costs of such operation instead of paying the weekly 
disability benefits indefinitely, the Commission will make the same award as 
has heretofore been made foe hernia, namely, that the employer may tender 
all proper costs and arrangements for such operation by competent surgeons 
with hospital facilities, nursing and cotnpenHation for loss of time while totally 
dixabled by such o]>eration, in lieu of weekly disability bcoefits, and if the 
employee refuses to undergo such operation, all compensation payments shall 
ivasi! pending such refusal. 

This is an application for compensation for disabilities received by 
applicant while employed as a teainster by defendant. The facts are 
stated in the opinion. The Commission made an award of twenty-six 
dollars and twelve cents ($26.12) for total temporary disability for 
two weeks, and five dollars and sixty-two cents ($5.62) per week for a 
partial temporary disability to be paid weekly until the termiaation 
of the disability or further order of the Commissioa. An order was 
further made that if defendants should make provision at their own 
expense for an operation upon applicant by a skilled and reputable 
surgeon and for care and treatment at a reputable hospital and should 
pay the sum of thirteen dollars and twelve cents ($13.12) per week 
after the operation as total temporary disability while applicant is 
totally disabled as a result of the operation, they should be relea.sed 
from all further liability if the operation proves successful; and if 
applicant refuses to undergo sucli operation on proper provision having 
been made therefor, all disability payments shall cease during such 
ref u-ial. 

A. M. Moore, attorney, for Applicant. 

J. C. Fyfe, assistant manager, for Defendants. 

Applicant in this case is a teamster who, on the 2d of March, 1914, 
was ill the service of the drayage firm* of McNab & Smith of San 
Francisco. While unharnessinf? at night one of his horses broke away 



D.gitizecbyG00glc 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 117 

and kicked at him, hitting him a glancing blow in the groin. Prom 
this he suffered severely for two or three weeks but except for a 
varicocele which he contends resulted from the kick, he was able to 
return to work at the end of four weeks from the day of the injury. 
In substance he asks for the cost of an operation to cure him of this 
otherwise permanent malady. 

Defendants resist the claim on the apparent ground that the vari- 
cocele was not the proximate result of the accident. 

The issue is not easy of deterraiuation. Ordinarily varicocele comes 
tlirough gradual development and afflicts men who have to stand much 
upon their feet, but it is conceded by competent medical authorities 
that it may result from an accident. Dr. Roncovieri, who treated 
Mitchell for his hurt, is, in view of the nature and extent of the injury 
he suffered to the parts at the time of the kick, inclined to the opinion 
that the varicocele was proximately caused by the accident. 

In corroboration of this view we have the testimony of Mitchell who 
avers that he had not been afflicted with varicocele before the injury. 
In the nature of things it would be well nigh impossible for him to 
prove by testimony other than his own that he had not, and yet, on 
the other hand, if he had suffered from varicocele he would be likely 
to have spoken of it. Its existence would be susceptible of proof 
whereas its non-existence would aiot be. 

Furthermore, for more than a year, Mitchell has been driving heavy 
teams and subjecting himself to experiences which now cause him 
pain, and yet did not give up the work in order to avoid the suffering, 
as he now claims that he must do. This makes it fairly evident that 
a change has taken place in his condition by reason of the injury. 

Finally, he is not asking for a monetary indemnity, but only for the 
costs of an operation to effect a permanent cure. This, of itself, is an 
evidence of good faith. Fraudulent claimants invariably want money 
indemnities and usually wish them commuted into tump sums. 

For these reasons the Commission finds that there is a partial dis- 
ability by reason of varicocele and that it resulted from the accident 
complained of. "We have, therefore, made a partial disability award 
of five dollars and sixty-two cents ($5,62) per week from and after 
the date of the preliminary hearing in this case, the time at which the 
issue was clearly drawn and defendants had an opportunity to proffer 
an operation which their own physician as well as that of applicant 
declared should be performed. It will be cheaper in the long run for 
defendants to bear the cost of the operation than to continue indefinitely 



D.gitizecbyG00glc 



118 INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 

the payment of the partial disability indemnity awarded. We thinlt 
this form of arrangement, already applied to hernia, about equally 
applicable to varitoceie and substantially just to both parties. 

A. J. PiLISBUBT, 

Will J. Prbnch, 
Harbis Weinstock, 
Commissioners. 

Nms. — Hy « later BPUlement bptween the pnrtljs. the award abc 

weiT releiiwrt by appllcnnt 
i-oin mutation ol payiDPiiIs was 



(No, 25— June 6, 1914.) 

(Chapter 17G, Laws 1913.) 

GKOnat: W. SMITII. Applicant, vs. SOUTHERN TACIFIC COMI'ANT, 

Defendant. 

J UillHDlCTlOK OF TIIE INDUSTRIAL ACCIDKNT CoUMrSSION RAILROAD SPECIAL 

l*OLiCB — INTERSTATB COMMERCE. — Where a Epecial police officer Id the employ 
of an inlcrHtate railroad is instructed to guard ita trains against tramps or other 
perwiiH seeking to roll the train or to gain free transporCalion, and such 
employee is injured by accident while ejecting tramps from an iaterstate 
passeoger train, leaving the yards of a junetion point in California, and frotn 
the right of way of the railroad, such employee is at the time of the accident 
engaged in rendering Bcrv-jces in interstate comrnerce. 

Ii). — INTEBSTATE COMMERCE — LiADiLiTY 0¥ EMPLOYED. — Where an employee of a 
railroad company doing interstate and intrastate business in California is injured 
by accident, without the negligence of the railroad or any of its officers in any 
way. while performing xerrices in the expedition of interstate commerce, the 
liability of the railroad, if any. is governed wholly by the federal statutes, and 
the California Industrial Accident Commission has no jurisdiction to entertain 
an application by such injured employee for compensation under the laws of 
the State of California, 

lu.— In.— Test of State and Keoeral Jubisiuciion.— By section SO (c) of the 
Workmen's Compensation. Insurance and Safety Act. the Industrial Accident 
Commission has no jurisdiction orer employers or employments which arc so 
engaged in interstate commerce as not to be subject to the legislative power of 
the State, or over employees injured while they are so engaged, except in so far as 
may lie iiermitled under the provisions of the constitution of the United 
StateK or the acts of congress. At the present time tbe field coverrd by acts 
of congresH is expressly limited to cases of injuries by railroads engaged in 
interstate commerce to employees while engaged in such commerce. Tb« 
question of whether or not an employee is injured while engaged in interstate 
commerce is tested with reference to the particular service the employee is 
l>erforming nt tbe particular lime and place of his injury, and tbe bearing it has 
on the inlerslale commerce being carried on by the railroad at the time and 
place of the injury. 

In. — In.— V.n-KCT of Neci.icesce of Hmm«*ek. — Tbe gnestion as to whether the 
slale or federal law applies docs not depend u|>on whether any negligence on the 
part of the railroad or its officers is shown. While damages can 'be recovered 
under the finleral law only where negligence is shown, such negligence is a 
nui'Klion for tbe jury to determine in the fitlernl courl. The intent of congrefl-s 
WHS to cover the whole field of injuries received by employees of railroads 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 119 

while employer and employee are engaged in iaierstate commerce, the statute 
KTantioK liability under certain conditions and refusing it in others, and the 
operation of the state law is exctiided whether the employer be liable or not 
within such Geld. (Opinion denying rehearing.) 

This is an application for a temporary total disability benefit. The 
facts are stated in the opinion. The only controversy submitted was 
as to whether the applicant was injured while employed in interstate 
eommerce or in intrastate commerce. The Industrial Accident Com- 
mission decided that the injury occurred while applicant was employed 
in interstate commerce, and the liability of the defendant, if any, was 
^vemed by the federal statutes. The application was accordingly 
dismissed on June 6, 1914, for want of jurisdiction. 
George 3. Johnson, attorney, for Applicant. 
Henley C. Booth, attorney, for Defendant. 

The applicant, George W. Smith, was emphiyed by the defendant 
as a special officer in its yards at Colton, California, on January 13, 
1914. On the night of that date the applicant, in the performance of 
his duties as such officer, boarded the tender of the locomotive drawing 
train No. 9 out of the Colton yards going west. That train is an 
interstate train and upon this occasion was carrying interstate passen 
gers, mail and express. It is a through train running from New 
Orleans to San Francisco. It was a part of the duty of the applicant to 
board the train to prevent trespassers from getting on. As the train 
was moving out of the jard three men attempted to get aboard. The 
applicant left the train and followed these men to prevent them from 
boarding the train, and to eject them from the company's premises. 
As he did so his pistol fell out of its holster to the ground and was 
discharged inflicting a painful wound in the applicant's left thigh. 

The only question to be decided in this ca.se is a question of law, i. e., 
whether or not the Industrial Accident Commission of the State of 
California has jurisdiction. The .solution of this question depends 
upon the construction of the act of congress of April 22, 1908, entitled 
"An act relating to the liability of common carriers by railroad to their 
employees in certain cases," and of section 86 (c) of chapter 176 of 
the Laws of 1913 of the State of California, said statute being the 
Workmen's Compensation, Insurance and Safety Act, under the com- 
pensation provisions of which claim in this case is made. 

The pertinent provisions of the federal law are contained in section 1 
thereof as follows : 

"Be it evaded by the Senate atid House of Represcntativvs of 
the United States of America in Congress assembled, That every 
common carrier by railroad ivliife engaging in commerce l>etween 
any of the several states and territories, . . . shall be 
liable in damages to any person sufFcring injury while he is 
employed by suck carrier in such commerce . . . for such 



IJO INDOSTRUL ACCIDENT COMMISSION DECISIONS. 

injury or death resulting in whole or in part from the negligence 
of aay of the officers, agents or .employees of such carrier or by 
reason of any defect or inefficiency due to its negligence in its cars, 
engines, appliances, machinery, track, road bed, works, boats. 
wharfs, or other equipment." 
The pertinent provision of the state law, being section 86 (c) thereof, 
is as follows r 

(c) "This act shall not be construed to apply to emploj'ers or 
employments which, according to law, are so engaged in interstate 
commerce as not to be subject to the legislative power of the State 
or to employees injured while they are so engaged, except in so 
far as this act may he permitted to apply under the provisions 
of the constitution of the United States or the acts of congress." 

The sub-section of the state law here quoted is the expression of the 
established rule of law. It appears to be entirely consistent with the 
act of congress above quoted; in fact, it appears to have been enacted 
80 as to disclaim any jurisdiction over the class of personal injury cases 
covered by the act of congress and to have been enacted with the 
congressioDal legislation in view. The exclusion stated in the state 
law is expressed in language very similar to that used in the act of 
congress denning the jurisdiction asserted by it. The State excludes 
itself under two heads. They are, (1) In cases where the employers 
and the employments are so engaged in interstate commerce as not to 
be subject to the legislative power of the State, and (2) To employees 
injured while they are so engaged. Congress asserts jurisdiction over 
common carriers by railroad under two heads. They are, (1) While 
engaging in commerce between any of the several states, etc. 
i. c, interstate commerce, and (2) To any person suffering injury 
while he is employed by such carrier in such commerce. 

It is well established by abundant authority that this assertion of 
a power, which is specified in expressed terms, must supersede all 
legislation over the same subject by the states. It therefore follow's 
that so far as state legislation prescribes the liability of common carriers 
by railroad for injury to their employees while engaged in interstate 
commerce, the act of congress is paramoimt and exclusive, for the 
reason fhat congress has covered the field of liability for injuries by 
railroads engaged in interstate commerce to employees while employed 
by such railroads in such commerce, but, as this Commission held in the 
case of Catherine 0. liidh, applicant, vs. Soutli^rn Pacific Company, 
defendant, Claim No. 12, the field covered by the act of congress is 
expressly limited to ca.si!s of injuries by railroads engaged in interstate 
commerce to employees while engaged in such commerce. Congress 
has exercised its power only to a limited extent. The question of 
whether or not an employee is injured while engaged in iateratate 
commerce is tested with reference to the particular service the employee 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 121 

is performing at the particular time and place of his injury and the 
bearing it has on the interstate commerce being carried on by the rail- 
road at the time and place of the injury. 

Applying these rules to the facts in the ease before it, the Commission 
has reached the conclusion that both the applicant and the defendant 
were so engaged in interstate commerce under all the circumstances as 
to come within the terms of the federal law and thus exclude the 
operation of the state law and the jurisdiction of the Commission. 
The applicant was immediately performing service required of him 
and necessary to be performed to promote the uninterrupted movement 
of an interstate train and it was a service in interstate commerce. 

A. J. PiLLSBUBY, 

Will J. French, 
Harris Weinstock, 

Comtnissio tiers, 

NoTK. — An upnUcatlon for a rehparlnR w«s tiled on June 30. 1911, on behnlf o( the 
Injured employee, which iipplicntior Wiis denleil by the Commtaslon on July 2. I9H, 
[nr reaaons stnliil In the opinion beiow. 

After giving full consideration to the matters set up by the applicant 
in his application for rehearing herein, we have decided to adhere to 
our original findings and award and to the opinion filed herein, stating 
our reasons for the conclusions we have reached in this ease. 

In so far as the application for rehearing is based upon the claim 
that the jurisdiction of the Industrial Accident Commission or of the 
United States courts is to be based upon the presence or absence of 
negligence on the part of the railroad and of the character set forth in 
section (1) of the act of congress, April 22, 1908, we hold that such 
claim is without foundation. The jurisdiction of the federal courts, 
under the act of congress, is to be determined upon the inquiry as to 
whether or not both the railroad and the applicant are engaging in an 
act of interstate commerce at the specific time and place and under 
the particular circumstances out of which the claim arises. If they are, 
the action is wholly cognizable in the federal courts; if they are not, 
this Commission has jurisdiction. The field covered by the federal 
statute is without reference to whether or not there is negligence. The 
question as to whether or not negligence existed is for the court and 
jury to determine in eat'h case. If, in a ea.se within the field defined 
by congress in the first section of the act of April 22, 1908, there is 
sufficient proof of negligence of the kind there defined, there will he or 
should be a recovery for damages; on the other hand, if in such case 
negligence of the kind there defined is not alleged and proved there 
can be no recovery. 

If the case be found to lie within the field covered by the federal 
statute, the state law can not find room for operation. In the above 



122 INDUSTRIAE, ACCIDENT COMMLSSION DECISIONS. 

entitled {'ause wu held and continue to hold that both the applicant 
and the defendant were engaged in interstate commerce at the time of 
the accident complained of, and that as a consequence the Workmen's 
Compensation, Insurance and Safety Act of the State of Califoraia 
(Chapter 176, Laws 1913) does not apply. 

A. J. PiLLSBURY, 

Will J, French, 

Commissioners. 

Note. — tipor the denial of the appllcntlon tor a rehearing, the applicant secured a. 
writ ot review in tiir District Court of Appeals In the Second DiBtrlct (Iioa Angeles) 
retumable AugiiHt 31, 1914, The cause waa thereafter argued and aubmltted upon 
brleh, and a decision rendered February 16, 1916, alBrmlntf the decision of the Com- 
mission. The following oiilnion was rendered by the court. 

Civil No. 1634. Second Appellate District. February 16, 1915. 



3 COUPEKSATION ACT — FINDINGS OF UOU MISSION^ SCOPE 0¥ 

UEVIEW BT COUHTS.— The lindiiiKB of the Stale Industrial Accident <U>m- 
mixsion are not reviewable by the Supreme Court or District Court of 
Appeal where there has been preKented to the Conmisaion anj' evidence 
to support them. 

{2) Id. — Id. — Id.— Application run Compensation — Status of Appli- 
cant t'l.tDINU OF EliPI«TMENT CONNECTED WlTR INTERSTATE COM- 
MERCE — Conclusion of Law — Hrview on Ckktiobabi. — A finding of 
Ihc Commission upon an apiilicntion for conipensation that tlie applieaut 
was at the Bp«<cified time of hin injury employed in intcrslnte commerce. 
anil that the particular service tietng rendered by him at the lime of Ills 
Injury was a servict* in such interstate commerce is more in the nature 
ol a conclusion of law anil is reviewable on certiorari. 

(:{) Id. — Id. — Injubt Wrile Enoaoed in Interstate Couuebce — State 
ItoAHD Without Juribdiction — Empiateks' Ij.ibii.ity Act of Cok- 
OKi'^ss roNTBOLLiNo.— Tlte Slate Industrial Accident Commission is wilh- 
out jurisdiction to award compensation, where The applicant whs at the 
time of the injury engaired in work directly relating to interstate commerce, 
I the same is coni rolled by the Kmployers' Liability Act passed hy 



J. DlSCIIABGE OF Re- 

> Driven Fbom Intebstatb I^bain — 
Act Affectisg lNTFRMr.\TE Commf.ece.^A railroad watchman who ix 
accidentally Injured by the discharge of his revolver while in the act of 
liursuing certalD trcspasners and driving Iliem from the company's prop- 
erty aTtcr lie hod boarded and driven Ihem off an interstate train, is 
engaged in an act affecting iutcrslatG commen'C. and not in an act local 
in its relation to Ihe biisinesH of his employer. 

Petition for Writ op Review. 

For Petitioner — George H. Johnson, Johnson & Phipps. 

For Respondent — Chri.tlophrr M. Bradhij, 11. C Booth. 

Pniccedinirs in certiorari to review the findintrs and determina- 
tion, of the State Industrial Accident Conimis.sion whereby the 
petitioner, who applied for compensation ft^ainst the Southern 
Pacific Company under the provisions of the Workmen's Com- 
{>eiisation Act of Cnlit'ornia. wiis denied relief and hia application 
tlismissed. 

Petitioner wiis a special officer or walchtnan employed hy tlic 
Southern Pacific Company at its railroad yards in Colton. Califor- 
nia. On the night of -Taniiary 1;!, IflH, a ihroiiKii pa.s.senper train 
running from New Orleans to San Francisco, and carrying pas- 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 123 

Sfugers, baggage and express from points without the state des- 
tined for points within California, eame into the yards. Acting 
within the line of his duty, petitioner boarded the tender of the 
locomotive attached to the train, as it got under way agaiu, for 
the purpose of preventing trespa-ssers from getting on the cars. 
As the train moved out, three men attempted to board the "blind 
baggage," that being the ear nearest the engine and having no 
door leading from the platform to the interior of the train. Peti- 
tioner shouted at the men and they jumped from the platform 
and petitioner left the engine fender and alighted on the ground. 
He started to pursue the three men in order to drive them from 
the company's property, and while doing this his revolver fell 
from its holster and a cartridge therein exploded, the bullet strik- 
ing petitioner's left thigh, where it inflicted a flesh wound. For 
this accidental injury suffered while he was perfonning a service 
in the course of his employment petitioner claimed compensation. 

The Industrial Commi.ssion made findings of fact, the 
substance of which has been narrated in the foregoing. A dis- 
missal of petitioner's application was ordered because it appeared, 
in the opinion of the Commission, that the employment in which 
the watchman was engaged at the moment of the accident had to 
do with interstate commerce, and therefore his claim for compen- 
sation did not fall within the jurisdiction of the state l>oard. 

Petitioner challenges these findings and contends that he was 
not engaged in an employment connected with interstate commerce 
at the time he received his injury, and that, irrespective of that 
issue being found against him, his claim was one which it was 
within the jurisdiction of the State Commission to allow. 

(1) Before giving attention to Ihe principal questions thus 
presented, some notice should be taken of the proposition sug- 
gested as to how far in this proceeding a review may be had of 
the findings of the slate indnstrial board. No appeal is provided 
to be taken from a decision of the Commission, but it is provided 
in section S4 of the act (Stats. 1913. p. 318), that a proceeding 
of review may be taken in either the Supreme Conrt or the District 
Courts of Apneal. It is provided that this review may extend far 
enough to determine whether the findings of fact, when such are 
made, "support the order, decision, or award nnder review." In 
the subdivision immediately following is contained this provi- 
sion ; "The findings and conelnsions of the Commission on qnestions 
of fact shall he conclii.'iive and final and shall not be subject to 
review: such questions of fact shall inclnde ultimate facts and the 
findings and conclusions of the Commi.ssion." Some ambiguity 
is apparent in these provisions, but they can be given a reasonable 
interpretation which will make effectual the evident intent of the 
lesislators. We apply this construction: The correctness of the 
findings of fact can not be questioned where there has been pre- 
sented to the eommis^iion any evidence to support them. The 
phrase "xiich qiifsli'nia of fn<-l shall include ultimate faots and the 
findings and conclusions of the Commission," must relate wholly 
to conelnsions of fact, for the clause expressly so declares in the 
part we have underscored. Cltimate fncts are nothing more than 
conclusions of fact drawn from the probative or evidentiary facts; 



t INDUSTKUL ACCIDENT COMMISSION DECISIONS. 

hence matters of fnct stated in their ultimate form can not differ 
from concliisionH of fact, however characterized. The Industrial 
Accident Commission exercises judicial functions; it sits as a 
court to try the matters pertinent to issues within its jurisdiction. 
There is every reason for Haying, therefore, that its finding should 
conform to and be judged hy the same general ndes as are 
applicable to findings made in courts of justice. It is a rule that 
findings of the ultimate facts alone arc not only sufficient, but are 
the most proper to be made; and while findings of evidentiary 
facts arc peruiissihle, those will always be controlled by findings of 
the ultimate facts where a conflict is presented between the two. 
(Corea va. Higxicra, 153 Cal. 451 ; Feople vs. McCue, 150 Cal. 195.) 

(2) The Commission in the matter of this petitioner's application, 
after finding the facts as to his employment and those relating to 
the circumstances of the accident, added a finding to this effect: 
"That the applicant, George W. Smith, was at the specific time of 
his injury employed in interstate commerce, and the particular 
service being rendered by him at the time of his injury was a 
service in such interstate commerce." This finding, while in its 
analysis it may be said to cover a mixed question of law and fact, 
ftlrnishes in the circunwtaneps of this case more particularly a eon- 
elusion of law which was not necessary to be made. No doubt it 
was expr^sed more by way of pointing; directly to the reasons for 
the opinion of the commissioners that there was no jurisdiction in 
the state to adjust the claim of petitioner. That conclusion then 
nuiy be disregarded, as it is plainly the intent of the statute to 
allow a review of all questions of law arising upon the findings 
of fact. 

Wc revert again to the two main propositions, to wit: 1. Was 
the State Industrial Accident Commission without jurisdiction to 
award petitioner compensation, assuming that the applicant was 
at the time of hb injury engaged in work directly relating to 
interstate cimimeree? 2. Do the findings sufficiently show that, 
as a matter of fact, petitioner was ongajjed in an act affecting 
interstate commerce, rather than an act local in its relation to the 
business of the employer? 

The Congress of the United States, in April, 1908, parsed what 
is known as the Employers' Liability Act {V. S. Comp. Stats.. 
Supp., 1909, p. 1171), which fixes the responsibility of every com- 
mon carrier towards its employees while engaged in commerce 
between the several states where any such employees are injured 
through the negligence of the officers, agents, or other employees 
of the carrier. In the year ]91;1. the Legislature of California 
pa.ssed a measure, known as the Workmen's Compensation, Insur- 
ance and Safety Act (Stats. 1913. p. 279), which provided for 
compensation to be awanled to employees injured while engaged 
in the work of their employer (except in certain employments not 
pertinent here), regardless of whether the accident occurred 
through the negligence of the cmpliiycr, or his agents, servants or 
other employee. It will be seen, then. thHt as applied to common 
csrriers the slate act covers precisely the same field as does the 
national legislation with the qualification that the state act obliges 
the eraploj-er to compensate employees for accidental injuries sus- 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 125 

taineO without negligence on the part of hia agents or employees, 
as well as those arisinir through the negligence of siieh persons. 

The United States Congress is given power by the Constitution 
to regulate commerce among the several states. As to the applica- 
tion of local or state statutes made in the exercise of the police 
power affecting instrumentalities of interstate commerce, it is 
said that this subject belongs to the reserve power of the states: 
that is, the power may be exercised by the states in the absence of 
legislation covering the same subject by Congress. When the 
power of Congress, however, is exerted in the direction of cover- 
ing the matter sought to be so regulated and is comprehensive to 
that end, then the state regulation must give way before the 
superior law. The principle involved is elaborately stated by 
Mr. Justice Van Devanter in the leading case of Mondoii vs. 
Xew York, New Haven and Hartford B. R. Co., 223 U. S., p. 1, (56 
Law Ed. 327), wherein the writer of that decision quotes the words 
of Chief Justice Marshall in McCulloc.h vs. Maryland, 4 Wheaton, 
316 (4 Law Ed. 579), as followar "If any one proposition could 
command the universal assent of mankind, we might expect it 
would be this — that the government of the union, though limited 
in its powers, is supreme within its sphere of action. ThLs would 
, seem to result necessarily from its nature. It is the government 
of all ; its powers are delegated by all ; it represents all and acts 
for all. Though any one state may be willing to control its opera- 
tions, no state is willing to allow others to control them. The 
nation, on those subjects on which it can act, must necessarily bind 
its component parts. But this question is not left to mere reason ; 
the people have, in express t^rms, decided it by saying, 'this 
Constitution, and the laws of the United States which shall be 
made in pursuance thereof, shall be the supreme law of the land,' 
and by requiring that the members of the state legislatures, and 
the officers of the executive and judicial departments of the states, 
shall take the oath of fidelity to it. The government of the 
United States, then, though limited in its powers, is supreme; 
and its laws, when made in pursuance of the Constitution, form 
the supreme law of the land, anything in the Constitution or 
laws of any state to the cnntrnrv notwithstanding." In Seaboard 
Air Line R. Co. vs. Horton, 233 IJ. S. 499 (58 Law Ed. 1068), 
the court says: "• • • it is settled that since Congres."*, by the 
act of 1908, took possession of the field of the employer's liability 
to employees in interstate transportation by rail, all state laws 
upon the subject are superseded. (And quoted from Moiidou vs. 
Nfw York, AVh' Haven and Hartford R. R. Co., supra:} 'But. 
plainly • • • it was the intention of Congress to base the action 
upon negligence only, and to exclude responsibility of the carrier 
to its employees for defects and insufficiencies not attributable to 
negligence.' " See, oho: Taylor vs. Tsylor, 2.'13 T'. S. 368. 58 Law 
Ed. 638. Again in MirUuian Central R. R. Co. vs. Vrrrlaiid. 227 
U. S. 59 (57 Law Ed. 417), this expression of the United States 
Supreme Court, written by Lurton, J., occurs, referring to the 
same law: "By this act Congress has undertaken to cover the 
injured while engaged in interstate commerce. This exertion of a 
power which is granted in express terms must supersede all legis- 



) INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 

latioii over the same subject by the states. It follows that in 
respect of state legislation preseriliinK tlii! liability of such carriers 
for injuries to their employees while ensaged in interstate com- 
merce, this act is paramount and exclusive." In point as to the 
exclusive nature of similar acts of Congress are the cases of: 
Chicago, R. I. tfe P. R. Ca. vs. Hardmck Farmers Elev. Co., 
226 U. S. 426, 57 Law Ed. 284; Chicago, B. (£■ Q. K. Co. vs. Miller, 
226 IT. S. 513, 57 Law Ed. 323 ; Simpson vs. Shepard, 230 U. S. 
352, 57 Law Kd. 1511; Erie B. Co. vs. New York, 233 U. S. 670, 
58 iMvi Ed. 1149. 

(3) The express declaration in the decision that the federal 
.statute has taken hold of the entifi' subject of the liability of a 
common carrier entjaged in interstate business to its employees 
for accidental injuries sufTeri'd by the latter while performing 
their duties, makes it unnecessary to digest those decisions approv- 
ing the operation of the state statutes where the national legislation 
is not of such a character as to indicate that Congress intended 
to cover the whole field. There are such decisions and they give 
expression to the general rule that a state statute enacted under 
the right of the rgserve power, is not to be set aside or overridden by 
the law of Congress, unless there is an actual repugnance. But 
these decisions recognize the alternative condition; That such 
state statutes will be thus overridden where Congress has mani- 
fested a purpose to exercise its paramount authority over the 
snb.iect. There may be cited: fiinnot vs. Davenport, 22 ITow, 226, 
IK Law Kd. 243 ; \l/w,wim', A'. & T. Ri/. Co. vs. Harm, 234 
U. S. 411, 58 Law Kd. 1377; Smith vs. Alabama, 124 U. S. 465, 
31 Law Ed. 508 (also cited in Atlantic Coast R. R. Co. vs. Georgia, 
234 U. S. 278, 58 Law Kd. 1312). 

(4) Touching the claim of petitioner that, whatever character 
his act may have had as being connected with the operation of an 
interstate train up to the moment that he had driveirthe intruders 
therefrom and had himself alightefl on the ground, his further act 
in attempting to drive the men away was one not connected with 
the first duty and was of a local nature only : It appears that the 
act was a continuous one without a break or stop. The watchman 
caused the men who sought to trespass on the interstate train to 
leave it, and then, in the words of the finding made by tlie Com- 
mission, he "was following them to drive them off the company's 
property when he stumbled and his revolver fell from the holster 
and was discharged." It would be to mark a very fine line of 
distinction to say that from the moment the watchman and the 
intruders stepped from the interstate train the acts of the former 
changed from being in aid of interstate eonmieree and his further 
motions in pursuit of these same intruders became colored with 
conditions of a pun'iy local employment. The federal courts have 
not indulged such close distinctions in applying the statutes. The 
facts of one case may be referred to: A fireman at Selma, N. C, 
had prepared an engine which he was to accompany on an intra- 
state trip, but which was lo pull in part cars brought in by an 
interstate train to their destination. The time not having arrived 
fur the departure of the train, the fireman left the engine and 
went to his boarding-house on personal business. While crossing 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 127 

over the tracks of the eompauy he was struck by an engine and 
killed. The federal <!oiirt held that the tireinan was at the time of 
his death engaged in work connected with interstate eommeree, 
saying: "Assuming that the evidence fairly tended to indicate the 
boarding-house as his (the fireman's) destination, it nevertheless 
■ also appears that deceased was shortly to depart upon his nin, 
having just prepared his engine for the purpose, and that he 
had not gone beyond the limits of the railroad yard when he was 
struck. There is nothing to indicate that this brief visit to the 
boarding-house was at all out of the ordinary, or was inconsistent 
with his dutv to his employer." (\orth Carolina R. R. Co, vs. 
Zachary, 232 U. S. 246, 58 Law Ed. .'iSl.) 

So here, the findings support the view that the petitioner, when 
he .started to drive the trespassers from the company's property, 
was performing an act consistent with his entire duty of ridding 
the interstate train of persons who sought to intrude thereon 
without leave or right. 

The conclusions herein expressed on the several contentions ad- 
vanced by petitioner are, therefore, favorable to the determina- 
tion as made b,v the Industrial Accident Commission, which de- 
clined jurisdiction of petitioner's application and dismissed his 
claim. 

The proceeding and order brought under review are affirmed. 
.TAMER, J. 

We concur: 

OONRBY, P. J. 

SnAW, J. 

(No. 63— June 6, 1914). 

(Chnplpr J7fi, Laws 1913.) 

FRANK It. IIAT.EY, ApplWant. ys. IlARDKNBKRfi MININi! COMPANY. 

Defendant. 

JlisAnlLITT. — Kvidence held to Bbow no disubiiity boyond the naitiiiK pfriixl of 
tivo weeks. 

Medical and SrRGicAi. Si!:nvicF.8^Pi»sPKCTivB Operation. — Reasonable eoit of 
0|H!ratLon lo relieve npiilictint from eonsequGnn^B of inilustrlal acctdeot, with 
eompensatioD for period while disabled b; such operalioD, awarded the spplicaot. 
Rmplojer required to tender at its own cost suitable nunrical and hospital 
faeilities for such opprntioD, nod it the appticaut then di'diiies such operation, 
tlie defendant is to be freed from all liability. 

This is an application for compensation ior accidental injury received 
in the course of employment resulting in a slight fracture of tlie skull. 
The facts are stated in the opinion. The Commission found that there 
was no disability nf any sort extending beyond the waiting period of 
two weeks and denied compensation for disability. If applicant should 
, decide to undergo an operation to raise the depression in his skull he 
is to l>e given such an operation at the expense of the defendant and 
compensation for a period following the operation during which he 
would be totally disabled. No other medical expenses were awarded. 



128 INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 

Marion Vecki, attorney, for Applicant. 

ApplicaDt Prank B. Haley was injured on February 1st while in 
the employ of the Ilardenberg Mining Company near Jackson, Amador 
County. Of this there is no doubt, but the application contains state- 
ments subsequently disproved, and Haley's testimony showed clearly 
a desire to conceal or evade one or two important facts. The Industrial 
AccitTent Commission would be warrauted in expressing its disapproval 
of this attitude on the part of claimant in no unmeasured terms, but 
prefers to be charitable in this instance for sufficient reasons. Truth, 
fulness is the first essential in the proper consideration of the cases that 
come before this Commission. 

Applicant Haley stated in his application for a hearing that he was 
totally disabled for an indefinite period, and that the Hardenberg 
Mining Company refused him medical treatment. In his testimony 
he averred that he was struck by a rock on the top of the head while 
descending a ladder, and was unconscious for some time. Another 
statement of applicant was that he was unable to return to work, that 
he had tried, and that he had to give up because he became blind and 
dizzy. 

Suliseqiient evidence clearly showed that applicant was not totally 
disabled for any period, that the Hardenberg Mining Company fur- 
nished medical attention, that he was not unconscious or even dazed 
after the blow on the head, and that he afterwards worked for eighteen 
days, starting eleven days after the accident. The time book of the 
defendant conelnsively proved that applicant had so worked. Reliable 
evidence corroborated the record, and further showed that applicant 
performed his work for the Hardenberg Mining Company as satisfac- 
torily after the accident as he ever did, without complaint of any 
character, and voluntarily left his employment after a slight disagree- 
ment with Foreman W. J. Bryant. 

Dr. Blake Franklin, representing the defendant, testified that the 
scalp wound did not appear serious, that it healed, and that there was 
no evidence of fracture. Dr. C. W. Sehacht, dentist of Jackson, testified 
that he had treated applicant before February 1st, and that he could 
not have lost four teeth from the upper jaw as the result of the accident, 
because he (the dentist) had removed one of two teeth about January 
1st, thus leaving only one tooth in the upper jaw. 

B. Piceta, the miner who was working with Haley, testified that some- 
thing struck applicant on the head, but be was not unconscious and 
was able to leave his work. On his return to work Haley never discassed 
the accident with Piceta. Ilaiey told Superintendent "William H. 
Schma! of the Hardenberg Mining Company that he felt "as good as- 
new" after the return to employment following the accident. He 
threatened that he would make trouble for the company if there were 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 129 

refusal to pureliase a set of fabe teetli, but this happened after his 
altercation with Foreman Bryant. 

An X-ray examination sliows that applicant suffered a slight 
depressed fracture of the vertex of the skull. Consequently we have 
allowed the applicant the cost of the operation necessary to relieve and 
cure him, together with compensation payments during the period 
of operation. For the reasons here fully set forth we decline to allow 
any other payment if applicant refuses this operation. 

A. J. PHABBUBY, 

Will J. French, 
Harris Weinstock, 
Commissioners. 



(No. 85— June 6, 1914.) 
(Chaiit«>r 17U. I^wa ISI.t.) 
J. I,. SMITH AND MAKV SMITH. ApptU-atitt. vs. JOHN ENfil.KBRETSON. 
AN1. KMrLOYP:itS' LIAHII.ITV ASRIHtANCE fJORl'ORATION OP 
LONhON. ];!']>.. nefc«da»U. 

Wkioiit (»p Eviuen<:k.— Kvidcncc rcvi™*^!, niialyM«l, nml h'-M in suRtnin cimrpiitions 
of iipHi'-i'it". 

This is a claim for a death benefit by tlie mother and stepfather of 
James M. Wells, who died on March 17, 1914, from internal hemor- 
rhages, alleged to have been caused by a strain received while employed 
by defendant. Mary Smith was entirely dependent upon deceased for 
support at the time of his death, and her husband was partially depend- 
ent upon him. The facts are stated in the opinion. At the hearing a 
eontlict in the evidence developed as to whether deceased had suffered 
the strain which he had asserted to be the cau.se of his illness. A 
striking difference of opinion among tlie medical witnes.ses also appeared 
as to whether the death was due to injury or to a possible diseased 
condition of earlier date. After considering all of the evidence sub- 
mitted, the Commissiim held that deceased did receive a severe strain 
while at work, which caused hemorrhage and illness from which he died 
two weeks later. An award was made in favor of applicant Mary Smith, 
in the sum of two thousand twenty-five dollars {$2,025.00), payable at 
the rate of eight dollars and forty-four cents ($8,44) per week for two 
hundred forty weeks. 

Walker d; North, attorneys, for Applicants. 
H. C. Huntington, attorney, for Defendants. 

On the 4th day of March, 1914, one James M. Wells, a teamster, was 

in the employment of John Englebrelson as driver of a scraper team in 

railroad grading. About 1 o'clock p. m. he quit work on account of 

o~u-nr,!B .HXy^lc 



130 INDUSTRIAL ACCIDENT COHHISSION DECISIONE). 

internal hemorrhages aud went home, where he took to his bed an«i 
remained there until his death on the 17th instant 

To the members of his family he stated that he had assisted in 
swinging a dump wagon around so that the team could handle it and 
had strained himself in so doing, immediately after whieh he felt sick 
at his stomach but kept on at work until 1 o'clock p. m., when he 
suflfered hemorrhages from stomach and bowels and had to quit work 
and go home. lie made practically the same statement to his employer, 
Mr. Englebretson, to Dr. Crawford, Dr. Loos, to his mother, his step- 
father and his brother-in-law. He made practically the same state- 
ment as to the wagon at ail times except to Dr. Chartres-Martin to 
whom he spoke of having to roll heavy stones and clods out of the way, 
but said nothing with reference to the wagon. lie also spoke to the 
others about having to roll stones and clods out of the way, but spoke 
only of having been strained in lifting at the wagon. There is evidence 
to show that these statements were made in full expectation that he 
would not get well. 

This is practically the only evidence which applicants have to offer in 
support of their contention that any accident happened. 

In contravention of this testimony defendants show that deceased 
suffered a severe internal hemorrhage eighteen years before; that at 
the time he reported his illness to his foreman, M, J. Hansen, he did 
not complain of any injury but slated that this was nothing new to 
him, and thought that he would be all right after a little while. 

No evidence has been obtainedfrom the person who drove the wagon 
that Wells helped to swing around, if there was such a person, nor 
was there any evidence obtained from one Williams who held the 
scraper while Wells drove the mules, although we have an affidavit 
of one Herbert N. Neale, to the effect that, on the 8th of March, he 
talked with Williams and that Williams stated to him that, on the day 
in question. Wells did no lifting of any kind, that Wells had been ill 
all the morning, and that he (Wells) had left his team sis or seven 
times during the morning to go into the brush. 

We view as of doubtful value an affidavit from a person of whom we 
know nothing as to what another person said, at a time when such 
other person was not available for questioning in open hearing. Fur- 
thermore, statements were made in open hearing by counsel for appli- 
cants to the effect that persons in the office of the employer had not only 
not assisted applicants' attorneys to learn the whereabouts and secure 
the testimony of Williams, but that, at all times, such persons had sought 
to thwart the efforts of counsel to secure the testimony of Williams. 
Counsel for applicants had been refused permission to go upon the 
works of the emploj-cr to secure the names of persons who might know 
the facts in this case. Thasc statements were not confuted at the hear- 
ing. However, the attorney for the defense is not blameworthy for the 



INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 131 

unfortunate attitude of the employer's repn^cntatives in this matter, 
but the effect of it all is further to weaken the force of the affidavit above 
referred to. Williams is a wandering worker who is supposed to have 
left San Diego for Los Angeles soon after the alleged injury and to 
have gone from there to San Francisco. 

On the whole we conclude that the preponderance of evidence is on 
the side of the credibility of the account which the deceased workman 
gave as to what happened and how it happened, although it must be 
conceded that, under the strict rules of evidence which obtain in civil 
courts, it is not unlikely that such evidence would be ruled out 
altogether. 

Although an autopsy was performed upon the body of the deceased 
workman the conclusions drawn from what that autopsy disclosed are 
not uiianimoas. Drs. Crawford and Loos who, with Dr. Chartres-Martin, 
performed the autopsy, incline strongly to the opinion that the hemor- 
rhage, aud consequent peritonitis, which causetl the death, were the 
result of an accident. Dr. Chartres-Jrartin, on the other hand, came to 
the conclusion that death resulted from what was, at the onset, per- 
nici<ius aniemia. 

The Commission submitted the findings of the autopsy surgeons and 
other testimony to certain experts who have aided the Commission in 
reaching a e<mcIusion. These experts point out that the blood exam- 
ination made by Dr. Thompson showed a condition which one would 
expect to find in a ca.se of hemorrhage as well as in a ease of pernicious 
anaemia. "The fact," they say, "that the man had suffered a very 
severe hemorrhs^e, and was exceedingly amemic, is sufficient evidence, 
when evidence of primary blood disease previous to his injury is lacking, 
to prove that there was no pernicious amemia, but that the condition 
was due to the recent hemorrhage. The post-mortem findings are not 
typical of any condition found in pernicious anfcinia and do not warrant 
the supposition that pernicious anipmia was present." 

The conclusion reached by a majority of the physicians attendant 
upon the autopsy, reinforced by expert opinion obtained by the 
Commission based upon the autopsy, and the evidence that the death of 
Wells was more consistent with accidental injury than with disease, 
greatly reinforces the evidence in snpjiort of the contention that there 
was, in fact, some sort of injury. Neither aspect of the evidence offered, 
unsupported by the other, would warrant a finding in favor of the 
applicants, but both taken togetlier mutually support each other 
aud warrant such finding. 

We are of the opinion that, on the 4th of March, 1914, an accident 
did befall James M. Wells, deceased, and that an injury resulted from 



D.gitizecbyG00glc 



132 INDUSTRIAL ACCIDENT COMMISSION DECISIONS. 

that accident which, in turn, resulted in a profuse internal hemorrhage 
from the consequences of which hemorrhage the death of said Wells 
resulted. 

A. J. PiLLSBURT, 

Harris WEiNSTOCK, 
Will J. French, 

Commissioners. 
NoTR. — A pf citlon for a rehearlnR wns subsequently tiled by tlie defendants, and on 
ense. for tli^ piirrose of hearing any nw texcimony thnt the defendants mlf;ht deaire 



e orlBlnal Findings 
Coxin of tTie State of CairroVnIii ot the i-eaueat of the defendiir 



iind Award. On October 22. 1»H, a writ of revi.^w w;ie Issued from I 



(No. 92— June 6, 1914,} 

(Chapter 17G. Laws 1013.) 

JOE RAMON (ALIAS J. AliUT). Applicant, vs. KENNEDY MINING 

COMPANY, Defendant. 

Joe Ramon {alias J. Alliiy), in propria persona, for Applicant. 
Wt^bb Smith, .superintcndelit of defendant's mine, for Defendant. 
Applicant was injured while working as a mucker in defendant's 
mine Ity having his fingers caught between a ear and the timbering of 
the pas.sageway while helping to replace a ear upon the track. The 
accident necessitated the amputation of the two middle fingers of the 
right hand. The only question raised was regarding the amount of 
compensation due. The Commission awarded the sum of two hundred 
thirty-four dollars and twenty-five cents ($234.25) as compensation for 
permanent partial disability, payable in the sum of one hundred three 
dollars and seven cents ($103.07), representing eleven weekly install- 
ments due up to the date of this award, and the balance in fourteen 
weekly instalhnents of nine dollars and thirty-seven cents ($9.37) 
I>er week. Applicant was also awarded Ihc reasonable value of medical 
anti surgical services renden'd. 

II. L. White, 
Secretary. 

(No. 124-^une 6, 1914.) 

(Chapter 17G, Laws 1013.) 

MRS. RIIODA I. DItAI'EK et A.L.. Applicnntt, vs. ANDllRSON LORE AND 
COMPANY (A coRPORATio.s), AND SOUTIIWK STERN SURETY INSUR- 
ANCE COMPANY, Delendantg. 

Pboximate Cause of Death— Aneurism of the Aobta— ArcinENXAi. Injubt.— 

\Vhpi^> (he iiost-iiiorti'in psnniiunliou shows the cause ot death io have been 
the hiirslirig of a small nnetiriHUl ot tin! aorta, nml thtit Ihi^ nneuHsm bad boeo 



INDUSTRIAL ACCIDENT COMUISSION DECISJONS. 133 

there some time before tbe accideotal injury referred to below, and the medical 
bixtory of the deceased showe that Ibree days before tbe said burstiag and 
death, Ibe deceased had strniaed himself by very heavy liftiug and complained 
tberenfter of the sIraininE:. pain, and discomfort, held, that this evidence together 
with the mediral testimooy produ<¥d. warrants tbe finding that at the time of 
the heavy liftiDs, the incr<>ns('d blnod pressure from the uuuaiial exertion 
eaiTsed the inner linings of the aneurism of the aorta to give way. and that the 
subsequent burstini; of the final coat of the outer wall cauang death followed 
naturally and proximately from such heavy lifting done in the course of the 
employraent of the deceased. 

John W. Luter, attorney, for Applicants. 

Frank W. Rowland, clnini adjuster, for Defendants. 
This is an application for a death benefit. Applicant is the widow 
of John Draper, who was employed as delivery man by defendants 
Anderson Lore and Company, and who died on April 3, 1914. The cause 
of death was established as a ruptured aneurism of the aseending aorta. 
While the aneurism was apparently of long standing, the evidence 
indicated that deeea.sed had three days before his death done some 
unu-ually heavy lifting and straining while at work and immediately 
thereafter complained of serious discomfort and pain. This pain con- 
tinued during the following three days, and on April 3d the aneurism 
burst, at a time when he was not doing any heavy work, and death 
ensued within fifteen minutes. Jfedical experts, to whom the record 
was submitted by the Commission, were of the opinion that while the 
aneurism was present before March Slst, it was small and might not 
have caused death for many years, that the increased blood pressure due 
to the heavy lifting of March 31st caiLsed the inner coats of the aorta 
to give way at that time and that the final wall of the vessel, thus 
weakened, gave way a few days later as a result thereof. The Com- 
mission therefore decided tliat death was proximately caused by strain 
received in the course of the employment, and awarded a death benefit to 
the widow in the sum of two thousand nine hundred and twenty-five 
dollars (!|>2.y2').()0), payable in weekly installments of twelve dollars 
and nineteen cents ($12.19) per week for two hundred forty weeks. 

H. L. White, 
Secretary. 



(No. 162— June 6, 1914.) 

(Chapter 176. Laws 1013.) 

JOHN IIMSNE. Ai,pli,-ai't, vs. .1. II. lUTL aso WKSTERN INDKMNITY 

COMl'ANY, Defendants. 

Pboximate Cause — ^Accidbstai, Injubt — Peritonitis — Contributinq Causes. — 
Where Ihe evidence ihoWN that applicant's piTitonitis was cauBwl by the 
presence of a foreign body in the abdomen which had been there fgr years with- 



1.(4 INDUSTKI.M, ACCiDKNT COMMISSION DKCISIONS. 

out causing trouble, but lliat iDflammation Ibercfroui was precipitated by a blow 
upon, or Btrnin to, tbp ahitomfn. caiisei] by injury rpceivpii in the course of his 
omployment. and llial liieic waw no ntbpr factor which woulJ hove caused 
the Inflammation at tbat time, held, that tbe blow or strain whs a proximate 
(■iiusv of tbe peritonitis. 

John Ilenne, in propria persona, for Applicant. 
E. F. Conlin, attorney, for Defendants. 
This i» an application for compensation for dit^abilitics received by 
accidental injury while in the employ of defendant J. H, Hjnl. Appli- 
cant had been j-ufferinR from an alwcess in the navel, which spread into 
the abdominal cavity, causing peritonitis and a nearly fatal illness. 
Applicant claimed that the al»s<'c».s had been caused either by straining 
himself in lifting or by being jammed against a wall while helping to 
raise and carry into an apartment house under construction, certain 
heavy china closets. The testimony of the operating surgeon was that 
the abscess was due primarily to a faulty chising of the navel at birth, 
reuniting in the gradual formation of a schaceuns concretion in the 
abdominal wall; that this concretion, acting as a foreign body, might 
either have been broken by an external injury, starting the abscess, or 
that it might have resulted in irritaticm and inflammation from natural 
sources; that if the trouble had not been precipitated at this time, it 
would inevitably have resulted sooner or later. Other evidence was 
introduced substantiating the fact that the applicant had been jammed 
against a wall by a china closet. The Commission held that the abscess 
and peritonitis were proximately caused by the said accidental injury. 
The ap])licant was awarded the sum of sixty-one dollars ami fifty-seven 
cents ($61.57) for temporarj- total disability to the date of the hearing, 
and nine dollars and thirty-seven cents ($9.37) per week thereafter 
until teriniimtion of