compensated for by a payment of one-half of the wage loss, as was required by the law of that State, no account should be taken of the depressed labor market, but the difference between the amount that the injured man would have been able to earn if there had been no depression in employment and his former earning capacity should be made the basis of payments. In the other case (In re Stickley, 107 N. E. 350) a man who returned to work for his former employer with a partial disability and was allowed compensation therefor, at the expiration of this contract found himself unable to obtain work on account of his crippled condition; he was held entitled to compensation as for total disability for an indefinite period, subject to the right of review.

The disposition of cases involving multiple injuries was considered by the supreme courts of Minnesota, New Jersey, and New York in cases at hand. The Supreme Court of Minnesota (State ex rel. Kennedy v. District Court of Clay County, 151 N. W. 530) held that an award involving injuries to the hand and arm should be proportionate to the total effects and not to the sum of the items. This was the view taken by the Supreme Court of New Jersey. (O'Connell v. Simms Magneto Co., 89 Atl. 922.) In both these cases awards made below by addition were in excess of the award computed according to the rules of the courts. In a case before the Supreme Court of New York, appellate division, however (Rockwell v. Lewis, 154 N. Y. Supp. 893), separate awards for the loss of several fingers amounted to less than the award for the loss of the hand; on review the injury was found practically to amount to such loss, and the award made on the latter basis was affirmed. In another case before this court there was the loss of a foot, together with injuries to the hands, and concurrent awards had been made. This was reversed by the court, the award for the loss of the foot being allowed to stand, though leaving the matter of other injuries open for subsequent consideration if they should continue beyond the period of the schedule allowance for the loss of the foot, the court saying that a payment of two-thirds of the wages (for 205 weeks in the case of a foot) is the maximum benefit, and concurrent awards leading to an excess of such an allowance would violate the principle of the law, which is not to furnish profit to the employee nor to punish the employer who, though liable under the statute, may not have been negligent. (Fredenburg v. Empire United Railways Co., 154 N. Y. Supp. 351.),

TOTAL DISABILITY.

A number of States declare total disability as a presumed fact in case of the loss of both eyes, hands, etc. The question of the status of an employee who has previously lost an eye or a hand raises the

question of the degree of the award where the second member is subsequently lost. The industrial accident commission of California considered the question at length and reached the conclusion that it would be an injustice to one-eyed workmen in the State seeking employment to hold that there would be a liability as for the loss of both eyes in case of the loss of the second eye, and an award was made as for the loss of one eye. The industrial board of Illinois made a similar ruling in a like case. The Supreme Court of Massachusetts, on the other hand, held that a man with but one eye "had that degree of capacity which enabled him to do the work for which he was hired," and since the loss of the second eye terminates that capacity, it causes total disability, and he should be so compensated. (In re Branconnier, 111 N. E. 792.) The Supreme Court of Michigan (Weaver v. Maxwell Motor Co., 152 N. W. 993) and that of Minnesota (State ex rel. Garwin v. District Court of Cass County, 151 N. W. 910) sustained the view enunciated by the California commission, the latter court saying that "If the injury would alone cause partial disability, but with a previous injury causes total disability, the employer is liable for a partial disability," which conforms to the provision of the law of that State. The compensation commissioner of West Virginia adopted the position set forth by the Massachusetts court and made an award for life payment in such a case as for permanent total disability. The department of justice of Iowa ruled in favor of a middle course, holding that a workman having but one eye and losing that was entitled to more compensation than one with two good eyes, but not as much as though he had lost both eyes in the single accident.

The Supreme Court of New York, appellate division, had before it the question of the loss of the hand of a man who had suffered by a previous maiming, and it also followed the doctrine of the Massachusetts supreme court, making an award as for total disability, arguing that such a man was presumably paid on the basis of a reduced earning capacity, and to allow merely as for the loss of but one hand of an unmaimed man would be to place him at a double disadvantage, so that he would practically get but half as much for the second hand, which was of double importance, as for the first. (Schwab v. Emporium Forestry Co., 153 N. Y. Supp. 234.) An amendment of 1915 limits awards to the consequences of the immediate injury, without regard to combined effects.

A different cause for total disability from any heretofore noted was set up by the employer in a case before the Supreme Court of Kansas (Ruth v. Witherspoon-Englar Co., 157 Pac. 403), where it appeared that the state of total disability was due not to the original injury as a proximate cause, but to the malpractice of the physician

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who treated the case. The court held that recovery under the compensation law could be had only for the consequences of the accident as such and not for the consequences of an intervening event, such as the failure of the physician to give the injured man proper treatment. A decision of the lower court in favor of the claimant was therefore reversed and a new trial ordered for a determination of the extent of the disability actually due to the original injury. Action was pending at the time to recover from the employer for the injuries due to the malpractice of the physician, who had been furnished by the employer in accordance with the requirements of the act.

Appropriate for consideration in this connection or in connection I with the cases in which preexisting conditions due to disease were discussed, are a few cases in which the injury affected aged employees. In answering the contention that the injury disabling the employee would not have had that effect but for his senility the industrial board of Illinois ruled that if the injured man was able to do the work for which he had been employed, his disability was chargeable to the accident and not to his physical condition, and compensation was allowed. The Supreme Court of Massachusetts took the same view, saying that the fact that a man's powers are failing and he would soon be unable to work on account of age was no bar to compensation if the present incapacity was the result of injuries. (Duprey v. Maryland Casualty Co., 106 N. E. 686.) The court in this case also applied a principle already noted in ruling the incapacity total, though the man was able to do certain kinds of work which were not obtainable. A different view was taken by the Supreme Court of New Jersey in the case of a man 73 years old whose broken lég bones would not knit on account of his age and who had been awarded compensation as for total disability. This award the court reversed, allowing compensation only for the loss of a leg. (Bateman Mfg. Co. v. Smith, 89 Atl. 979.)

Noted here because the same principle is applied, though involving a death claim, is a case that was before the Supreme Court of Wisconsin. (City of Milwaukee v. Ritzow, 149 N. W. 480.) The law of Wisconsin provides for a scaling of permanent disability payments to aged persons, 5 per cent being deducted if over 55, 10 per cent if over 60, and 15 per cent if over 65 years of age. The deceased was 80 years of age, and the full death award was allowed in his case, the provision for scaling being held not to apply in cases of death, since the law does not specifically provide therefor though it was said that analogy would suggest it. It is of interest to note that the award in this case provided an income, based on the assumed earning capacity of the deceased, for a period of 320 weeks, i. e., in excess of six years, while according to the American experience table of mortality his life expectancy was but 4.4 years. In the New

Jersey case above, also, the award for disability as originally made was for 400 weeks, which was in excess of the life expectancy of the workman in that case, though unless the award should be construed to be a vested right in the estate payments would of course terminate with the death of the injured man unless it was found due to the injury.

DEPENDENCE.

It is clear that rulings under this head are chiefly to be based on individual circumstances, and that the principles involved in compensation administration do not differ from those elsewhere applied, though of course the terms used in the different acts vary.

The determination of benefits payable to survivors of deceased employees was the subject of several cases arising under the New Jersey statute, which in its original form did not make a clear provision for the various classes of survivors. Thus in the case of a dependent mother where the deceased employee left no widow (Blanz v. Erie R. R., 85 Atl. 1030), it was held by a judge of the common pleas that the failure to make a specific provision for a case of this kind left applicable only that section of the law which allows benefits in the amount of $200 in cases in which there are no dependents surviving.

The mother appealed, and the supreme court took the view that the object of the law was clearly to award compensation to actual dependents, and while it made no specific stipulation for a mother alone, it contained no language expressly excluding her if there is no widow, provided, of course, that she is an actual dependent. It follows from the above that where dependence is actual and the law clearly contemplates compensation to actual dependents, specific statutory provision is not necessary. In another case before the same court (Miller v. Public Service R. R. Co., 85 Atl. 1030), the question arose under the law of New Jersey as to the amount payable in a case where the decedent left a childless widow and a father, brothers, and a sister. As already noted, the widow was entitled under the law to a benefit of 25 per cent of her deceased husband's wages, while if there was also a dependent parent, the compensation would be 50 per cent. The court below made an award of 50 per cent of the deceased workman's wages on the ground that besides a childless widow there was a father surviving. This ruling was held by the Supreme Court of New Jersey to be erroneous, the mere fact of relationship not being controlling, but a showing of actual dependence.

Another case before the Supreme Court of New Jersey (Batista v. West Jersey & S. R. Co., 88 Atl. 954) resulted in reversing a judgment which awarded compensation to a widow who had been

abandoned some years before her husband's death, the latter having lived unlawfully with another woman whom he had supported and who had borne him children.

The question of dependence was also involved in a case arising under the Wisconsin statute. (Northwestern Iron Co. v. Industrial Commission of Wisconsin, 142 N. W. 271.) In this case the beneficiary was a nonresident alien, widow of the deceased workman. The deceased workman had made two remittances to his wife during the time of his employment, at intervals of three months, having made the statement that if he did not send money every three months, his wife could not make a living. On the facts the industrial commission ruled that the husband and wife were living together within the meaning of the statute, and that she was therefore an actual dependent entitled to the benefits provided by the law for such persons. The employing company appealed from this ruling and it was set aside by the circuit court as being in excess of the powers of a commission and contrary to the facts. The supreme court considered the language of the law which provides for a conclusive presumption of the dependence of a wife upon a husband with whom she is living at the time of his death. Speaking on this point, the court said: "Proof of total dependency is dispensed with under the statute where the husband and wife are 'living together' at the time of the death of the injured employee. It seems, therefore, quite obvious that the legislature intended by the use of the words to include all cases where there is no legal or actual severance of the marital relation, though there may be physical separation of the parties by time and distance. The living together' contemplated by the statute, we think, was intended to cover cases where no break in the marriage relation existed and therefore physical dwelling together is not necessary in order to bring the parties within the words 'living together.'" The judgment of the circuit court was therefore reversed and the award of the industrial commission directed affirmed.

The Massachusetts law declares a presumption in favor of the dependence of the widow of a deceased workman and of "a child or children under the age of 18 years * * * upon the parent with whom he is or they are living at the time of the death of such parent, there being no surviving dependent parent." Under this provision. of the act it was held that a divided award to a widow and to a child under 18 years of age residing with her was not in accordance with the terms of the law, since the child would be a beneficiary only in case there was no surviving dependent parent, the widow in the present instance being entitled to the entire amount of the benefits. (In re Employer's Liability Assurance Corporation, 102 N. E. 697.)

Another case under the law of Massachusetts (Coakley v. Coakley, 102 N. E. 930) involved the correlative rights of a dependent