state act being inapplicable.
(Wash.)

Lund v. Griffiths & Sprague Stev'g Co.

654

Though employer within act fails to avail himself of benefits of statute, he
is not liable for injury sustained by employee in course of employment,
in absence of employer's negligence which is proximate cause of injury.
Wilkin v. H. Koppers Co. (W. Va.)

$358.

755

FORM AND REQUISITES OF ELECTION (INCLUDING IMPLIED
ELECTION).

If employer gave statutory notice of election not to come under act for a cer-
tain year, and posted statutory notices with place of business, it was not
under act for subsequent years,-unless particular form of notice of rejec-
tion is prescribed by act or commission, actual written notice statisfied
statutory requirements-where correspondence showed employer's in-
tent to give notice of rejection and commission, which had not adopted
rules as to such notices, did not inform employer upon request whether
further steps were necessary, employer might assume proper notice was
given in absence of rules or objection by commission, notice made and
signed in typewriting complied with statute. A. T. Willett Co. v. Indus-
trial Commission. (Ills)

Poe

Where employer, sued for injuries, offers no proof to support allegation that
notice of provision for compensation had been given to servant as re-
quired by statute, it must be presumed that no such notice was given-
where employer had failed to give such notice, servant could institute
suit against employer for personal injuries, but was not limited thereto,
and could waive notice provision and claim benefit under act-were serv-
ant waived such want of notice and sought compensation before board,
he could not thereafter recover from employer by action in court.
v. Continental Oil & Cotton Co. (Tex.)
Code construed that employer failing to comply with insurance provision is
not under compensation act-where employer, presumed under code to
have accepted act, failed to comply with insurance provision, while he is
deprived of its benefits, employee not deprived of action at law. Elks v.
Conn. (Ia.)
Employee hired at daily wage is not required to file daily notice of refusal
to be bound by compensation provision of act-where hired before em-
ployer became subject to act but accident occurred after such subjection,
failure to give notice of refusal to be bound was not acceptance of act.
Lemley v. Doak Gas Engine Co. (Cal.).
Where employer on commission's demand that he comply with act, received
certificate of such compliance, explaining his action as determination to
operate under act, he cannot claim he has not so elected merely because
he has not filed formal notice of election with commission. Paul v.
Industrial Comm. (Ill.).

In proceeding against board of education for death of school janitor while
trimming tree in school yard, neither defendant nor deceased having ac-
cepted the act, award could not be based on occupation as extrahazard-
ous under act, regulations in act not applying to school building. Comp-
ton v. Industrial Commission. (Ills.)

Local bill clerk for railroad is not engaged in manual or mechanical labor
within statute Arizona Eastern R. Co. v. Matthews. (Ariz.)
Employer's obligation to pay and employee's right to receive compensation
under statute becomes part of every contract of service between every
employer and employee covered. That deceased was son of member of
employer firm created no presumption affecting right under act. Rogers
v. Rogers. (Ind.)
Applicant for work, who failed to report in morning, after passing night in
employer's boarding cars, to ascertain whether he could obtain em-
ployment and was injured while going to noonday meal was not an em-
ployee within act-applicant for work, former employee, told to report
next morning, did not retain status of employee to recover for injuries
incurred before assignment to work. Brassard v. Delaware & H. Co.
(N. Y.)
Superintendent and manager of plant. treasurer of company, with salary of
$5,000, held entitled to award under act for injuries sustained while in-
structing employee in use of machinery. Berman v. Reliance Metal Spin-
ning & Stamping Co. (N. Y.).

Where contractor's employee assists with machine or appliance belonging to
contractor, in work of subcontractor or other employer to whom he is
lent, he may become, with his consent, servant of other employer, but
there is rebuttal presumption that in management of machine he remains
servant of general employer. Emach's Case. (Mass.)
Where fatally injured in automobile of concern on way to place where he
would have been employed if acceptable, deceased was not in concern's
employ and dependents not entitled to compensation. California Highway
Commission, Dept. of Eng., State of Cal. v. Industrial Acc. Comm..
State of Cal. (Cal.)..

Where neither employer nor employee had elected to come under act, whether
they were under act depended upon nature of employment and whether
employee was injured in line of employment came within definitions of
act. Seggebruch v. Industrial Commission (Ill.)....

Term "Engineering works" refers to places of business and not to work of
engineer on public highway. Board of Com'rs of Kingfisher Co. v. Grimes
(Okla.)

138

72

145

371

22

3

58

130

128

94

150

156

636

644

Employee engaged in pulling float over soft cement in road construction was
not engaged in hazardous occupation. Brennan v. Indust. Comm. (Ill.).. 603
Act was not intended to confine hiring contracts to express contracts to ex-
clusion of contracts by implication of law where circumstances show
mutual intention. Reitmeyer v. Coxe Bros & Co. (Pa.).
Business of retail grocer who also butchers at slaughter house in another
place for sale to his retail customers and who at grocery store, cuts
meat, makes sausage and renders lard for sale in small way, is not en-
gaged in operating a slaughter and packing house within act-nor does
act require one conducting such retail business voluntarily to apply to
come under such law, or subject him to penalty of losing common-law
defenses when sued by employee for injuries sustained due to alleged
negligence. Williams v. Schehl (W. Va.)....

Under act, a gas company's general office in which clerk was injured in
operating a power driven machine for making plates to print bills, is
factory or workshop, although principal duties were clerical. Gowey
v. Seattle Lighting Co. (Wash.)

362. CASUAL EMPLOYMENT.

Carpenter working by hours, paid weekly, to make repairs and additions to
mill, working parts of different months, was an employee. Caca v. Wood-
ruff. (Ind.)
Question whether employment is casual within act must be determined with
principal reference to scope and purpose of hiring rather than duration
and regularity. Farmer and teamster engaged to do hauling during_sea-
son when needed, was not a casual employee within act. State Acc. Fund
v. Jacobs. (Md.)
Despite statutory exception of casual laborers, workman can recover even
though his employment is casual if it is in the usual course of employer's
business. Caca v. Woodruff. (Ind.)

That deceased was injured on first day of employment affords no test that
employment was casual. Doherty v. Grosse Isle Tp. (Mich.)
Where one, after shingling a house and being later employed by another,
reported to first employer offering to touch up chimney with cement
without pay, and was injured, has was "casual employee.' Bedard V.
Sweinhart (Iowa)

One employed only to assist in moving monument, which continued less than
two days, held causally employed and not entitled to compensation.
Cousineau v. Black (Mich.).

One engaged in farming, employing men without regular duties, who had
not elected to come under act, was not operating thereunder and com-
mission had no jurisdiction in case of employee injured hauling fer-
tilizer. Seggebruch v. Industrial Commission (Ill.)..

§ 365.

EMPLOYEES ENGAGED IN INTERSTATE COMMERCE.
Employee of railroad, killed in cleaning car on homeward bound car on inter-
state trip while standing in defendant's yard awaiting delivery to an-
other carrier, was engaged at time in interstate commerce and not en-
titled to recover under act. Kinsella v. N. Y. Cent. R. Co. (N. Y.)
In case of death of employee on towboat carrying interstate commerce, ques-
tion of whether within exclusive jurisdiction of federal courts is con-
trolled by federal decisions. Kennedy v. Coon. (N. J.)

759

752

51

91

61

222

377

409

156

134

117

If railroad employee was engaged in interstate commerce at time of injury
not entitled to compensation under state act-railroad employee, janitor
of machine shop, injured by splinter in breaking kindling, was not en-
gaged in interstate commerce. Heed v. Industrial Commission. (Ills.) .. 27
Railroad employee killed while working on locomotive not assigned to any
particular train, standing in yard, was not engaged in interstate com-

merce.

290

Chicago, R. I. & P. Ry. Co. v. Industrial Commission (Ill.)...... 159
Interstate transportation of goods did not end with placing on pier for de-
livery to consignee, where he had not taken possession, nor paid freight
nor had time limit expired-watchman killed while in charge of such
consignment was not under act, being guarding interstate shipment.
O'Brien v. Pennsylvania R. R. Co. (N. Y.).
Question whether defendant railway company and plaintiff at time of injury
were engaged in interstate commerce, when testimony raises issue of
fact, is for jury-where record shows sufficient testimony that both
plaintiff and defendant were so engaged to authorize submission to jury,
held court committed no error in overruling motion for directed verdict.
St. Louis & S. F. Ry. Co. v. Fraser (Okla.)...
No compensation under act can be awarded for injury while engaged in in-
terstate commerce. Reilly v. Erie Ry. Co. (Pa.).
Where complaint pleaded under federal act. and proof showed plaintiff not
in interstate commerce, but established case under federal statutes
covering accidents in intrastate commerce, there was no variance or
failure of proof requiring dismissal. Archibald V. Northern Pac. Ry.
Co. (Wash.)

Boy under 16 employed by clay-mining company was illegally employed and
act did not apply. Moll v. Industrial Comm. (Ill.).

632

639

663

369

Where minor under 16 was employed to operate machine in violation of law,
common-law liability of employer was not affected by act which applies
only where hiring contract is valid. Lesko v. Liondale Bleach Dye &
Print Works (N. J.)..
a minor in view of definition of
(Mass.).

Provisions of act apply to employee who is
employee. Gilbert v. Wire Goods Co.

367.- — INDEPENDENT CONTRACTORS AND THEIR EMPLOYEES.
Foundry worker unloading coke for certain sum per ton is an "employee"
where there is no contract as to extent or time, worker having right to
quit and employer having right to discharge at any time without lia-
bility. Muncie Foundry & Machine Co. v. Thompson. (Ind.)
Carpenter working by hours, paid weekly, to make repairs and additions to
mill, working parts of different months. was an employee. Caca v. Wood-
ruff. (Ind.)

Woman who hauled milk to factory, controlling own equipment and actions,
held an independent contractor and not employee of factory. Sawtells v.
Ekenberg Co. (Mich.)

Awning remover, working for anyone needing services, engaged to do piece
work for house owner who retains control and direction of work with
right to discharge for disobedience, is employee and not independent con-
tractor. Abromowitz v. Hudson View Const. Co. (N. Y.)
Compensation claimant who contracted with town to furnish and feed team
and drive it for fixed daily remuneration, subject to orders of town's
foreman but did not load wagon, was not employee of town but inde-
pendent contractor. Eckert's Case-In re Town of Lee-In re Em-
ployers' Liab. Assur. Corp. (Mass.).......

$368.

525

714

56

61

252

538

713

CONTRACTS OF EMPLOYMENT MADE OR TO BE PERFORMED
IN FOREIGN STATE.
Where claimant received letter in New York, offering work in Pennsylvania,
made no response, but soon went to Pennsylvania, entered into written
contract of employment and was there injured, contract was made in
Pennsylvania and he is no entitled to award under New York law.
Thompson v. Foundation Co. (N. Y.)...

Where one hired in New York for work outside state by firm doing no work
within state considered hazardous by state act, proceeded to another
state and was there injured, award under New York act was authorized.
State Indust. Comm. v. Barene (N. Y.).

$369.

442

630

INJURIES OCCURRING IN FOREIGN STATE.
Court not precluded from finding act covers injury sustained in another state
because not so stated expressly. Pierce v. Bekins Van & Storage Co (Ia.) 78
Where act is elective, a hiring thereunder is in effect a contract of employ-
ment into which act is to be read and one injured in another state in line
with employment is entitled to recover. Pierce v. Bekins Van & Storage
Co. (Ia.)
In absence of pleading and proof to contrary, presumed that laws of another
state are the same-employee injured in another state under circum-
stances which would have confined his recovery to proceedings under act
if occurred in this state, cannot maintain damage action without plead-
ing foreign law. Freyman v. Day (Wash.)..

IN GENERAL.

371.
Statutes to be given liberal construction in determining whether injuries
arose out of employment. Granite Sand & Gravel Co. v. Willoughby.
(Ind.)
Statutory phrase relative to "accident due to a condition...of such occupation"
requires injury must have occurred while employee was at work in his
occupation and must have been occasioned by risk or danger inherent
in occupation. Arizona Eastern R. Co v. Matthews. (Ariz.)
Person not entitled to compensation for injury in course of employment, when
he had done no work for defendant but merely applied for employment,
although he had eaten two meals provided by defendant with defendant's
permission. Brassard v. Delaware & H. Co. (N. Y.)
Negligence, in itself, does not prevent act ordinarily incident to employment
from being "out of and in course of employment." Ocean Acc. & Guar.
Corp. v. Pallaro (Colo.)

Words "accident arising out of, etc.," in act are to be given liberal con-
struction-injury is within act when within period of employment, at
place where employee may reasonably be, and while doing something
reasonably connected with employment. Nordyke & Marmon Co. v. Swift
(Ind.)

To come within act is must be shown injury originated in work and while
in furtherance of affairs of employer. American Indemn. Co. v. Dinkins.
(Tex.)
To sustain award, must be evidence that injury arose out of employment.
Fish's Case (Me.)..
Where servant was injured before amendment to act, in order to bring within
provisions of act, it was necessary that employer conducted hazardous
employment, employee was injured in such employment, his regular
work, and employer's regular business-term "employment" in act be-
fore amendment denoted employment only in trade, business or occupa-
tion carried on by employer. Morris y. Muldoon (N. Y.)...

78

652

53

3

130

15

179

294

390

623

Injury resulting in death need not arise out of or be due to employment:
sufficient if it happened in course thereof. Clark v. Lehigh Valley Coal
Co. (Pa.)

§ 372.

CAUSE OF INJURY IN GENERAL.
Where bill clerk at freighthouse fell into scale pit being constructed along a
usual route, while returning from midnight lunch, accident was not due to
condition of employment but may have arisen out of and in course of
employment. Arizona Eastern R. Co. v. Matthews. (Ariz.)
Recovery cannot be had for police officer killed by persons whom he at-
tempted to arrest. Helburg v. Town of Louisville (Colo.).
"Accidental injury" occurs in course of employment, unexpectedly, without
affirmative act or design unforeseen. Jakub v. Industrial Commission
(Ill.)
Where employee developed bone felon, result of long continued special occu-
pation, he could not recover for "accidental injury." Perkins v. Jackson
Cushion Spring Co. (Mich.)..
Where neck was cut while being shaved at barber shop and on following
day employee in tannery hadling hides developed symptoms of anthrax.
his death was due to accidental injury in Course of employment.
Eldridge v. Endicott, Johnson & Co. (N. Y.)..

Where watchman killed by burglars, left dependent widow who also died be-
fore compensation was made and administrator of workman's estate sued,
held that action was prosecuted by proper party, that full amount of com-
pensation was recoverable, and that injury causing death arose out of
employment. Smith v. Kaw Boiler Works Co. (Kans.)
Where laborer was killed by employer's truck going in direction necessary
for him to perform further duties, injury arose out of employment.
Fiarenzo v. Richards & Co. (Conn.)..

747

3

152

158

237

621

87

599

35

Where injury resulted from fight between employees, facts as to aggressor
and comparative strength were not controlling on question whether injury
arose out of and in course of employment. Swift & Co v. Industrial
Commission. (Ills.)
Where employee's helper quit and new helper was requested, and first helper
shot employee in ensuing quarrel, injury was incidental to employment.
Chicago, R. I. & P. Ry. Co. v. Industrial Commission (Ill.).
... 159
Janitor killed while attempting to obtain clean gasoline to clean floors was
within act-that he was disobeying an order to use dirty gasoline has
no bearing on question whether injury arose in course of employment
but only on question of wilful misconduct. Nordyke & Marmon Co. v.
Swift (Ind.)
Where quarryman breaking rocks died of hemorrhage, held facts as stated
indicated injury by accident and injury arising out of employment.
Gilliland v. Ash Grove Lime & Port. Cement Co. (Kan.).
Where cook on boat was drowned while returning with purchased provisions,
part of duty, death arose out of employment to justify award. West
man's Case (Me.)

179

187

213

Where salesman hurrying to catch train with heavy grips broke blood vessel,
injury was result of "accident." Crosby v. Thorp-Hawley Co. (Mich.). 245
Contraction of glanders through inhalation of bacteria resulting in death of
stableman was not accidental injury arising out of employment. Rich-
ardson v. Greenberg (N. Y.).

438

399

472

If one employee assaults another in revenge, injury results from voluntary
act of assailant not within employment, but when employee is assaulted
while defending employer or employer's interests, or incidental to some
duty of employment, injuries arise out of employment. Marshall v. Baker-
Vawter Co. (Mich.)
Personal injuries due to attack by employee of equal rank, following quarrel,
cannot be made basis for compensation. Metropol. Redwood Lumber Co.
v. Industrial Acc. Comm. (Cal.)..
Where salesman, required by duties to go from place to place in city, slipped
and injured leg on street, he must be considered to have been performing
services incidental to employment and not ordinary street risk. Schroeder
& Daly Co. v. Indust. Comm. of Wis. (Wis.)
Where employee died in course of employment from rupture of aorta, caused
by extra effort in vomiting, claimant, irrespective of anterior causes,
was entitled to compensation. Clark v. Lehigh Valley Coal Co. (Pa.).... 747

§ 374.
INJURY AS PROXIMATE CAUSE OF DEATH.
Where injury caused abscess necessitating weakening of leg bone which
gave way when employee rose from bed, requiring fatal operation, death
was result of injury. G. H. Hammond Co. v. Industrial Commission
(Ill.)
While there must be some casual relation between employment and injury,
it is not necessary that injury be one which ought to have been forseen.
Baum v. Industrial Comm. (Ill.)..

576

176

357

Mine watchman's death caused by blasting stumps to obtain fuel for cabin
furnished by employer held due to accident arising "out of and in course
of employment." Ocean Acc. & Guar. Corp. v. Pallaro. (Colo.)

16

(1). In general.
Where school janitor fell while trimming tree in school yard, death did not
arise out of or in the course of employment. Compton v. Industrial Com-
mission. (Ills)
Injury occurs in course of employment when within period of employment
at place where employee may reasonably be, and while reasonably fulfill-
ing duties of employment or doing something incidental to it. Where
employee cleaning gravel on car, remained on car while being switched
and fell, injury was sustained in due course of and arose out of employ-
ment. Granite Sand & Gravel Co. v. Willoughby. (Ind.)
Where employee was killed while conveying workmen at direction of em-
ployer, an accustomed duty, death arose out of employment-employer
estopped from claiming employee was acting for private benefit of indi-
vidual member of firm. Rogers v. Rogers (Ind)....

22

53

58

103

Where teamster left wagon to recover receipts pertaining to his work, blown
off while in his hat, and was fatally injured by automobile, injury arose
out of employment. Keaney's Case-In re T. Libby & Co.-In re Travelers'
Ins. Co. (Mass.).
Cook on boat, drowned while returning with purchased provisions, part
of duty, held injured in course of employment. Westman's Case (Me.).. 213
Under facts as stated, held accident arose out of employment. Morris & Co.
v. Cushing (Neb.)
268
Where employee entered office at foreman's invitation to view, found revolver
and was killed by accidental discharge of same, neither foreman nor
deceased was acting in employer's interest within act. Culhane V.
Economical Garage (N. Y.)..
Employee's employment may continue for interval after he had ceased
working; question where liability of employer ceases in each case to be
determined by facts. American Indemnity Co. (Tex.)..
Employee, injured in attempting to prevent child from being run over on
company's premises by automobile driven by officer, on company's business,
was injured in course of employment. Ocean Acc. & Guar. Corp. V.
Indust. Acc. Corp. (Cal.)....

Park workman, killed by lightning while under tree waiting to resume work
held injured in course of employment. Chiulla de Luca v. Board of
Park Com'rs, City of Hartford (Conn.)..
Excavating work under wall for purpose of building pier is not "mason or
concrete work" and act did not apply prior to amendment where servant
of one engaged in "mason, concrete work," etc., was injured while making
such excavation. Morris v. Muldoon (N. Y.).....

276

294

477

595

623

(2). Injury received while going to or from work.
Petition alleging deceased had left for day and was a short distance from
plant when killed was demurrable because it showed injury not sustained
in course of employment-such injuries did not occur while in further-
ance of affairs of employer. American Indemn. Co. v. Dinkins (Tex.).... 294
If employee is injured while in performance of any of his duties, injury
arises out of employment. Heinze v. Industrial Comm. (III.)..
361
Where employee voluntarily performs act in emergency, believing it in in-
terest of employer, and is injured, he is not acting beyond scope of em-
ployment-where employee was fatally wounded by strikers while trying
to save employer and other employees, injury arose out of employment.
Baum v. Industrial Comm. (II.).

Employee who has arrived at place of employment for purpose of commenc-
ing work is performing service incidental to work-accident to employee
on way to work in use of necessary mode to ingress to work, provided
and required by employer, arose out of employment. Judson Mfg. Co.
v. Industrial Acc. Comm. (Cal.).

Compensation may be awarded, despite pre-existing disease, if aggravated
and accelerated by accidental injury which is immediate or proximate
cause of death-where employee was found dead near his machine, but
no evidence that his heavy work hastened death by disease, there could
be no recovery. Jakub v. Industrial Commission (Ill.)...

It is sufficient to justify award, if accident, by weakening resistance or
otherwise, influence existing disease to cause death or disability. Mail-
man v. Record Foundry & Machine Co. (Me.)...
Ohio state act has no application in case of employee blinded by glittering
surfaces which he inspected-an occupational disease. Zajkowski V.
American Steel & Wire Co. (U. S.

357

687

153

205

.... 579
If death occurs during course of employment in ordinary way natural to
progress of employee's disease, there can be no recovery, but if death
results from injury due to accident in course of employment, fact of
employee's chronic ailment, rendering more susceptible to such injury,
will not defeat right to compensation. Clark v. Lehigh Valley Coal
Co. (Pa.)

That employee was negligent in use of explosives while blasting in course
of employment is no defense. Ocean Acc. & Guar. Corp. v. Pellaro.
(Colo.)

$380.

WILLFUL MISCONDUCT OF EMPLOYEE IN GENERAL.
Where blasted stumps were customary and cheapest fuel, and mine watchman,

747

15